Freshwater Lawsuit Dismissed

The federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al. was dismissed Thursday:

“Now come all parties, by and through counsel, to stipulate Plaintiffs John and Nancy Freshwater dismiss all claims contained in the First Amended Complaint with prejudice pursuant to Civ.R. 41(a)(1)(A)(ii).”

A copy of the stipulated dismissal is posted on the website of the National Center for Science Education.

UPDATE 10-22-10:

Don Matolyak, Freshwater’s pastor, provided AccountabilityInTheMedia.com with a copy of Freshwater’s statement regarding the dismissal of the lawsuit against the school board:

“I want to pass along this statement. My wife and I directly sent to the opposing attorneys the following statement by email on Wednesday, October 20, 2010. The truth is there was money offered to me several times to leave the district and stop the state hearing before Referee Shepherd could make his finding. If I took the money and left the district the opportunity for truth would never have come out and the eleven students from my 2007-2008 class would not have been able to testify about the truth. Most importantly if I took the money and left the district the Referee would have been prevented from making a decision. The Referee has heard 38 days of testimony and is the best opportunity for revealing the truth. I will await Referee R. Lee Shepherd’s decision.

“(this is the statement I made to the school board’s attorneys)

“Nancy and I prayerfully considered the settlement terms and have decided to REJECT the terms presented.

“From the beginning, my wife and I have only sought the truth. Revelations in the last few days exposed to us the strategy of those who have harmed me, a strategy designed to obscure the truth rather than seek justice and reconciliation. It has become obvious this federal platform and process will never result in the truth coming forward. Truth is not to be compromised or negotiated or hidden behind money.

“We feel confident that the hearing completed in August 2010, after 38 days of testimony before Referee R. Lee Shepherd is the best opportunity for revealing the truth we sought from the beginning. Therefore, we have decided to withdraw our federal lawsuit against all parties without any personal compensation or monetary gain as proposed, and we have instructed our attorney to file the proper paperwork. We seek no other option than to continue to patiently await the finding of Referee R. Lee Shepherd as he is the ONLY person to hear all of the testimony and most importantly see all of the students from my 2007-2008 class speak about the truth of what went on during my class.

“We have already spent our life savings and have pledged our farm to get to the truth. It is better to leave the money on the table than to take the Bible off of my desk.

“John and Nancy Freshwater”

According to Mount Vernon News reporter Pamela Schehl, school board attorney Sarah Moore said: “There was no settlement offer to accept or reject. There was no money on the table for [Freshwater] to leave there. We were baffled when we received the e-mail from him and we can't even begin to speculate why he is saying what he is saying.”

AccountibilityInTheMedia.com Reporter Responds to Subpoena

On Monday evening I submitted a written statement to the Mount Vernon Board of Education regarding the recent subpoena I received from the school board’s attorney Sarah Moore.

In the subpoena, Moore stated that it was for the federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al.

(Click here to view a copy my statement to the school board and a copy of the subpoena. 891 KB PDF.)

Below is a portion of my statement:

“I understand that attorney Moore has a job to do in defending the school district in the federal case. However, there is a difference between being thorough and casting such a wide net, while fishing for information, that one goes overboard. Attorney Moore’s actions appear to be the latter.

“What criteria did attorney Moore use in deciding to whom to send subpoenas? Has she also sent subpoenas to the Mount Vernon News, KnoxPages.com, 13WMVO or the countless television stations and other newspapers who have reported on the story involving Mr. Freshwater? Will she send subpoenas to every person who has ever blogged about the story, written a letter to the editor or spoken at a school board meeting?”

I wasn’t the only one that Moore sent a subpoena to recently. Among those that received a subpoena is Levi Stickle, who maintains the website cfacts.org.

Three people spoke to the school board during the public participation portion of Monday’s school board meeting. Two of the individuals spoke about the recent subpoenas.


(“Levi Stickle to school attorney: Why did you send me a subpoena?”)



(“Community member responds to proposed MVCS levy”)



(“William Pursel: Frivolous subpoenas”)


Moore has been sent a request for comment. If and when she replies this article will be updated with her response.

Also during Monday’s meeting, school board treasurer, Barbara J. Donohue, provided an update to the school board regarding the district’s five-year forecast. She provided information regarding the financial challenges facing the district due to budget cuts at the state level.

UPDATE 10-16-10:


Moore still has not responded to the request for comment.

Mount Vernon News reporter Pamela Schehl did not include any mention of the subpoenas in her coverage of the school board meeting. See her article “McKinley honored by MV school board.”

The managing editor for the News, Samantha Scoles, provided an explanation in an email to AccountabilityInTheMedia.com :

“The reason we have not reported on the public participation portion of the most recent school board meeting is because we were not in attendance. Our education reporter was attending a different school board meeting.

“When we do not attend meetings, we can call on board members, the treasurer or the superintendent for details of the meeting, which we did in this case. I believe we were provided with the statements made in regards to the Behind the Scenes Award.

“Therefore, without being present to hear the public comments, we cannot possibly report on those.”

In an email on Oct 12, Scoles had been provided with links to videos of the public comments and a copy of the written statement given to the school board.

UPDATE 10-20-10:

Dave Daubenmire, through his attorney, has submitted a motion to quash a subpoena sent to him by Moore. Below is a portion of the motion:

“After reviewing the subpoena, it is clear that the only purpose of the subpoena was to harass, embarrass, and incur expenses for a non-party witness, simply because he is a friend of one of the parties. The subpoena should be quashed in its entirety, and attorneys fees awarded to Mr. Daubenmire from the Defendant for the expense of obtaining counsel to respond to this harassing subpoena.”

A copy of the motion is posted on the website of the National Center for Science Education.

Richard Hoppe, who writes for pandasthumb.org, wrote about the recent subpoenas issued by Moore. Below is a portion of Hoppe’s post:

“Essentially the defense is asking for everything Sam [Stickle] has ever written on the web, whether public or in private, about Freshwater, Hamilton, and the Freshwater hearing. That’s a remarkable demand. It has the effect of bringing everything a private citizen has written about this affair into a federal court proceeding for no discernible reason beyond the defense’s hope that something, anything, will turn up. It is a chilling affront to the First Amendment rights of the Stickle brothers and to anyone else (what, who me?) who might have commented somewhere on the web about this specific affair or who might write a blog post or even comment on a discussion board about any legal proceeding.”

Freshwater’s Closing Arguments: Allegations Unsubstantiated

John Freshwater’s “closing statement brief” was released Thursday.

The 180 page document, including diagrams, provides extensive arguments for why the allegations made against Freshwater are unsubstantiated. The brief draws upon the many witnesses who testified during the hearing that began in October of 2008.

(“Freshwater's Closing Statement Brief.” 4MB PDF.)

(The “Middle School FCA Speakers Survey” diagram, like others used in the brief, emphasizes significant details of the testimony.)

The following is from the introduction of the brief:

“Everything in this case is about purpose, context and intent with an ultimate goal of answering the question set forth in the opening statement –

‘What makes sense?’ versus ‘What does not make sense?’

“Shamefully and sadly, had the administration of the employer invested any zeal in investigative fact gathering to determine the basic:

‘Who?, What?, Where?, When?, Why? and How?’

- legitimate answers could have been achieved both by the end of the last day of school in 2008, and before the employer’s resolutions of June 20, 2008, and July 7, 2008.”

AND

“The sum of the decision calculus in this matter will demonstrate John Freshwater prevails in this matter because:

“1. Any and all matters related to John Freshwater’s use of a Tesla Coil were adjudicated by Principal William White’s letter to John Freshwater dated January 22, 2008.

“2. The Academic Content Standards were not applicable in the Mount Vernon City School District until the beginning of the 2004-2005 school year.

“A. John Freshwater taught his 8th grade students exactly as he was required as evidenced by the only known assessment tool authorized in the State of Ohio; the Ohio Achievement Tests. John Freshwater’s students received proper instruction resulting in him being the only 8th grade teacher whose students achieved a proficient rating of seventy-seven (77%) percent on the Ohio Achievement Tests despite his classes containing the most special education students.

“B. Ten (10) eyewitness students, two (2) teachers and one (1) principal testified John Freshwater never instructed on the topics of creationism nor intelligent design.

“3. John Freshwater complied with all of the known parameters as he facilitated, monitored and supervised the Fellowship of Christian Athletes (FCA).

“A. Witness testimony from credible sources clearly demonstrates John Freshwater did not conduct nor lead any prayers during FCA meetings.

“B. Witness testimony from credible sources clearly demonstrates John Freshwater never asked non-familial students to lead prayer in FCA meetings.

“C. Witness testimony from credible sources clearly demonstrates John Freshwater did not exceed his role as facilitator, monitor and supervisor of the FCA.

“4. John Freshwater exercised a constitutional right to have a personal Bible in his classroom on his desk.

“A. John Freshwater removed all items he was lawfully asked to remove.

“B. John Freshwater did not receive any instruction from Principal William White or anybody else to remove the patriotic poster, which was distributed through the Mount Vernon Middle School office, depicting former President George Bush and Colin Powell.

“C. John Freshwater never intended or tried to ‘make a point’ by bringing additional religious articles into his classroom.

“At the conclusion of this brief, John Freshwater will respectfully request the Referee to evaluate and find each of the employer’s allegations against John Freshwater as detailed in the Amended Resolution of Intent to Consider the Termination of the Teaching Contract(s) of John Freshwater to be unsubstantiated.

“John Freshwater prays this Referee, after consideration of the evidence presented, and assessment of the testimony heard, will find the Board of Education (BOE) has failed to prove the charges set forth in the resolution to consider his termination originally dated June 20, 2008, but amended on July 7, 2008.”

For additional coverage of the Freshwater hearing, see the articles in the archive.

UPDATE 9/20/10—related documents:

August 13, 2010 David Millstone’s brief on behalf of the Mount Vernon Board of Education. 239 KB PDF.

August 20, 2010 R. Kelly Hamilton’s rebuttal on behalf of Freshwater. 5.64 MB PDF.

August 20, 2010 Millstone’s rebuttal on behalf of school board. 180 KB PDF.

The above three documents were obtained from the National Center for Science Education.

UPDATE 9/22/10:

The links to the above three documents have been temporarily taken down. (The documents may not have been officially released.)

Freshwater’s “closing statement brief” was released Thursday by attorney Hamilton.

UPDATE 3/17/11:

The links to the above three documents have been reactivated. (The documents are part of the public record pursuant to Ohio Revised Code 3319.16.)

What’s in the Trash, Stays in the Trash, According to Judge

Federal judge Gregory Frost on Monday rejected the attempt by John Freshwater and attorney R. Kelly Hamilton to have previously issued sanctions lifted.

Frost sidestepped the various issues raised in the dispute and went to what he believed could resolve the matter—the credibility of the parties involved in Doe v. Mount Vernon Board of Education et al.

With $28,737.50 at stake, Frost decided against Freshwater and Hamilton because Freshwater testified to having pulled items back out of the trash.

“The Court finds Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony,” Frost wrote.

Freshwater had merely explained in the federal hearing, like he had in the administrative hearing, that he pitched some items into a garbage can in his barn and then retrieved the items when his attorney requested them.

Frost also focused on a similar, though separate, situation. This time, Frost wrote that it couldn’t be true that Freshwater both put the item, a Tesla coil, in a trashcan and also gave the item to his attorney.

In research done by AccountabilityInTheMedia.com, it was found to be physically possible to place something in a trashcan and then remove the item.

Perhaps for a person such as Howie Mandel, with germaphobia, it would be psychologically impossible to remove an item from a trashcan.



(Mandel talks about his fear of germs.)

Mount Vernon City Schools’ superintendent Steve Short and Mount Vernon Board of Education attorney David Millstone both testified on behalf of the plaintiffs. Neither one mentioned anything about having every removed something from a trashcan.

“The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses,” Frost wrote.

Frost did not include any details about the testimony of Short or Millstone.

Other than the trashcan issue, the only other issue Frost offered as the basis of his decision involved the dispute over whether Hamilton delivered two affidavits on April 30, 2010 to the plaintiffs’ attorney Douglas Mansfield.

It was a matter of Hamilton’s word against Mansfield’s and his two associates. Even at that, Frost wrote that he didn’t even have to include Hamilton’s side of the story in his deliberation on the matter.

Frost wrote that Hamilton didn’t properly word his affidavit about the affidavits. What Hamilton wrote in his brief about the affidavits Frost did find to be properly worded. However, Frost wrote that statements made in a brief cannot be considered “evidence.”

While Hamilton was in the federal hearing, he said a couple of times that if Frost had particular wording he was looking for on any matter to direct him in what would satisfy the court. Hamilton told the judge that he was not trying to be evasive in how he responded to the various issues.



(The Trial by Franz Kafka, starting at 1:07 in video, provides a sense of the legal proceedings regarding Freshwater.)

Frost went ahead and wrote in his decision:

“And, it appears to the Court that the language utilized in Attorney Hamilton’s affidavit is carefully crafted to appear to state that he attached the affidavits to Exhibit 161 but does not actually state such. Moreover, although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable.”

Credibility of judge Frost

During the federal hearing conducted on July 29, Frost did acknowledged twice, after being pressed, that he had been mistaken on something.

One issue had to do with who Freshwater’s attorney was in Doe v. Mount Vernon Board of Education et al. The other was regarding the wording of the 2008 requests by the plaintiffs for the production of documents.

AccountabilityInTheMedia.com previously reported on Frost’s odd decision in April to grant the plaintiffs, the Dennis family, standing in regard to their claims of Establishment Clause violation. (See the article, “Christian Family Objects to Bible in Classroom.” )

The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.

Frost, nonetheless, granted the Dennis’ standing.

Related document:

August 2, 2010 opinion and order by Frost on motion for reconsideration of sanctions. (Doc# 120) 28.32 KB PDF.

Judge to Reconsider Previously Issued Sanctions

The dispute over discovery in Doe v. Mount Vernon Board of Education et al. continues.

On Thursday, a hearing was held in the courtroom of federal judge Gregory Frost to reassess the basis of his previously issued sanctions against defendant John Freshwater and attorney R. Kelly Hamilton.

Douglas Mansfield, attorney for the plaintiffs, had argued that Freshwater and Hamilton failed to turn over all items requested for discovery.

Freshwater and Hamilton have maintained that they did turn over all items subject to discovery that they have.

(See documents provided at end of article for the details of this ongoing dispute.)

Collaboration among attorneys

Although Hamilton is representing Freshwater in related legal matters—another federal case, the administrative hearing and formerly for the dismissed counter claims—he is not Freshwater’s attorney in Doe v. Mount Vernon Board of Education et al.

Freshwater testified in the hearing that he believes the dispute over discovery is about the other side trying to keep Hamilton busy so that he cannot focus on the other case and on writing the “massive brief” that is coming due in the administrative hearing.

Freshwater said that the attorneys are “collaborating” against him and Hamilton.

The attorneys on the opposing side of the legal matters regarding Freshwater have done nothing to hide that they are, to some degree, working together. During the administrative hearing the school board’s attorney, David Millstone, routinely allowed the attorney for the “Doe” family to sit at the table with him.

During the federal hearing, Sarah Moore, an attorney for Mount Vernon City Schools’ superintendent Steve Short, sat at the table with the plaintiffs. Ironically, Short was a defendant in the case until a partial settlement was reached in August of 2009.

The partial settlement removed all defendants from the lawsuit except for Freshwater. The only significant monetary consideration that the plaintiffs received in the settlement was $115,500 for the reimbursement of their legal fees. The money was paid by the school board’s insurance.

Short was brought as a witness for the plaintiffs to testify about a one-sheet handwritten inventory he said he made of items that he returned to Freshwater in August of 2008.

(Short’s testimony on this matter covered the same ground as when he testified about it in the administrative hearing. See the section “Inventory of Freshwater’s personal items” in the article “BIBLE ON THE DESK: Freshwater Hearing Comes Full Circle with Last Witness.” )

Moore stated—as an explanation for why the inventory sheet was not turned over in response to public record requests from Freshwater—that it is protected by the work product doctrine and not a public record.

No explanation was provided of how the plaintiffs ended up with a copy of the inventory sheet by May 14, 2010 when they used it as an exhibit in one of their motions regarding the discovery disputes.

Also brought as a witness for the plaintiffs was Millstone, attorney for the school board. The school board, as shown by the name of the case, was the primary defendant until the partial settlement was reached in August of 2009.

Millstone testified that he had a conversation with Hamilton in which Hamilton indicated that he had recorded an interview with retired science teacher Jeff George. Millstone said that he did not request a copy of the recording. (George was not brought as a witness in the administrative hearing.)

In Mansfield’s closing arguments, he said that any recordings should be turned over to him even if the person recorded was not listed in pre-trial as a witness.

Billing records

One of the documents that Mansfield had requested was the billing records for the production of Freshwater’s May 2008 affidavits.

Freshwater testified that he had created the affidavits in preparation for what was to be the second interview with the H.R. On Call investigators.

Hamilton said in his opening statement that he does not have the billing records from May of 2008 regarding the affidavits. He explained that the records were destroyed when a water pipe burst above his computer. Hamilton provided the court with supporting documentation.

Mansfield said that it doesn’t ring true that the records were destroyed in a “flood.”

In a memorandum, Mansfield had provided his summary of Hamilton’s billing records that he was able to obtain from an attorney for the school board. He said that the records included the May 2008 time period but did not mention the production of any affidavits.

Freshwater testified in the hearing that he had four separate fee agreements with Hamilton. In a written statement, Freshwater said:

“The two bills I got from [Hamilton for May 2008] were for two different processes. One bill was for the investigative interview and the other bill was for the legal works other than the interview preparation. I have never hidden the fact that I had separate legal billings.”

Judge Frost

At the close of testimony and arguments, Frost said that he wants this case and the related case to go away more than anyone else does.

Related documents:

2008 response by Freshwater to plaintiffs’ requests for production of documents. 828.8 KB PDF.

January 20, 2010 memorandum by Hamilton responding to plaintiffs’ motion to compel. (Doc#78) 43.93 KB PDF.

May 7, 2010 motion by Mansfield for sanctions. (Doc# 96) 56.57 KB PDF.

May 10, 2010 response by Hamilton to Mansfield’s motion for sanctions. (Doc# 97) 30.76 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—main. (Doc#101) 44.59 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—attachment, inventory. (Doc#101-8) 81.51 KB PDF.

June 1, 2010 opinion and order by Frost on motion for sanctions. (Doc# 106) 51.7 KB PDF.

June 15, 2010 motion by Hamilton for reconsideration of Frost’s opinion and order. (Doc#107.) 23.54 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—main. (Doc# 114) 59.68 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—attachment, inventory and photos. (Doc# 114-3) 7.49 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—main. (Doc# 116) 42.94 KB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment one, Freshwater’s affidavit concerning billing records. (Doc#116-1) 1.65 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment two. (Doc# 116-2) 27.9 KB PDF.

The National Center for Science Education maintains an archive of many of the court documents for the case Doe v. Mount Vernon Board of Education et al. and for the related case Freshwater v. Mount Vernon Board of Education et al.

MV News: Agreement reached in civil suit

According to the Mount Vernon News, an agreement has been reached “between the Doe family and John Freshwater” regarding the civil suit that was scheduled to go to trial today.

The News stated that it was unable to obtain the details of the agreement.

The attorney representing Freshwater in the federal case, Sandra McIntosh, did not respond to a previous request for comment from AccountabilityInTheMedia.com.

On July 16, 2010, AccountabilityInTheMedia.com sent the following email to McIntosh:

Will the jury trial for Doe v. Mount Vernon Board of Education et al. scheduled to begin July 26, 2010 continue as planned?

(In document number 116, attorney R. Kelly Hamilton states that “On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff’s Memorandum of Opposition [Doc. 114].”)

What was the “resolution in this matter” that occurred on July 2, 2010?

UPDATE 7-27-10:

According to the News, the "Doe" family's attorney Douglas Mansfield said that the trial was delayed due to settlement discussions. The News was unable to obtain details.

SECOND UPDATE:

For details from the settlement, see the Oct. 27, 2010 News article by Pamela Schehl, “Settlement signed by both parties in civil lawsuit.”