Opposition to Motion to Dismiss

[perspective]

Yea, I get the message that SC made regarding this not being about selecting a site, but enforcing the "implied" language of referendum to build on the site based on the flyers and statements. The problem, IMO, is that his point here is predicated an the judge actually agreeing that the flyers and statements are part of the referendum, which I believe will be a bit of a long shot short of the actual trial. Additionally, I am personally not sure that the above inclusion of location is pertinent unless SC can prove that it had a material impact on the vote.

I have read several posts that speculate the number of voters that switched from no to yes because the location was identified and "was therefore part of the ballot”. IMHO, that number would need to be made clear to the court and the correlation would need to be very high. I think SC my have a circular reference here that will prove difficult for the court to resolve -- again, my opinion.

Also, I believe that any referendum that requested to approve funds to build a third HS on a particular plot of land would be invalid on the premise that we did not own the land. I do not know how the SD could ask for money to build on land we do not own -- this may get into the intent of the SB, but that is anyone's guess.

I guess I just see SC as throw it up on the wall and let's see what sticks kind of guy.

[perspective]

One additionally point and I am done for a while. If anyone has read some of my posts on the Sun blog, I am not a fan of our current SB. Where I disagree with some is that I do not feel their actions were illegal or immoral. Incompetent and ill advised yes.

[sashimi]

perspective..I look at this a little different (which does not mean I am right).

I think the issue of proving the actual number of people that relied on the representations in voting yes is immaterial (and impossible), and is not a requirement for NSFOC to prevail (I do not think this is NSFOC's burden).

The arguement is that these statements were not "extrinsic, extraneous and rhetoric", but were unequivical and factual (and included as representations in materials printed and created using taxpayer monies) and as such, MUST BE READ into the referendum (regardless of how many people relied on these statements to vote).

[perspective]

sashimi

I see your point and it has some validity. However, I believe that in order to overturn an affirmative vote or alter the actions (whether competent or not) of the school board, it would also have to be material. Since it is the NSFOC argument that this information caused the "swing" vote to the affirmative, I do think the burden of proof will be on the party arguing that this information materially altered the outcome of the affirmative vote for the ref. If the outcome would not change (i.e., the affirmative would carry regardless of the “implied” location information), then there would be no clear call to action to alter the events to date. I preface by saying that this all my opinion. I think the burden of proof is on the accusing party in this case. I do agree that this is probably impossible to prove and as such will render itself an insufficient cause.

I believe that this is what part of the motion to dismiss addressed. The statement which (I am paraphrasing ) alluded to the compliant that even if all of this is correct what is the impact it had on the approval ( previous case law was sited in the dismissal filing) – I obviously do have the exact wording in front of me at this writing.

[Arch]

perspective,

2005 referendum did not pass, 2006 passed.

Survey says people wanted more INFO. Thus, for the 2006 Referendum the District used our tax money to disseminate more INFO, that INFO that was deposed in court to be FACT.

[ru4real]

May 15, 2008 21:14:04 GMT -6 Arch said:

perspective,

2005 referendum did not pass, 2006 passed.

Survey says people wanted more INFO. Thus, for the 2006 Referendum the District used our tax money to disseminate more INFO, that INFO that was deposed in court to be FACT.

How does one equate more info with fact??

As in the analogy

Steak

More info: muscle from a cow used to feed the lazy homo sapien

The disputation in court is??

[perspective]

To d204 mom

I hear what you are saying. The problem IMHO with the case law referenced by SC is that the SB is not a legislative body so it would be a huge leap to tie the actions of the SB to this case law.

[perspective]

Arch,

Define more info. Personally I did not follow the district number for attendance projections so I did not vote for the '05 ref. I think it is a stretch to say that the entire turn in votes was due to a "site boundary" platform. I think you are saying that the '06 vote would be no if the BB site was not equated to the new HS. I can not say it was or it was not -- I can only say that since the NSFOC suit says that it was, then the burden of proof is on them to prove that it was. I do not buy into the broad argument that since '05 did not pass and '06 did that it was entirely based on the "site boundary" tie in.

[ru4real]

May 15, 2008 21:34:29 GMT -6 perspective said:

Arch,

Define more info. Personally I did not follow the district number for attendance projections so I did not vote for the '05 ref. I think it is a stretch to say that the entire turn in votes was due to a "site boundary" platform. I think you are saying that the '06 vote would be no if the BB site was not equated to the new HS. I can not say it was or it was not -- I can only say that since the NSFOC suit says that it was, then the burden of proof is on them to prove that it was. I do not buy into the broad argument that since '05 did not pass and '06 did that it was entirely based on the "site boundary" tie in.

bravo perspective and cheers

[Arch]

May 15, 2008 21:34:29 GMT -6 perspective said:

Arch,

Define more info. Personally I did not follow the district number for attendance projections so I did not vote for the '05 ref. I think it is a stretch to say that the entire turn in votes was due to a "site boundary" platform. I think you are saying that the '06 vote would be no if the BB site was not equated to the new HS. I can not say it was or it was not -- I can only say that since the NSFOC suit says that it was, then the burden of proof is on them to prove that it was. I do not buy into the broad argument that since '05 did not pass and '06 did that it was entirely based on the "site boundary" tie in.

What would quantify 'proof' for you? I think boundaries were an integral part of many of the votes that were cast.

[perspective]

Arch,

I think proof would have to be a quantifiable number. It's just my opinion, but I do not think that a court can possible rule on what is either thought or something someone claims to know -- it can only rule on what can be proven. I think that may be the fatal flaw in SC argument of the case in the first place. If you read the district motion to dismiss (as exciting as that is) they did a sufficient job of saying that even if you (the court) agree that the location was part of the ref. then it must prove that that specific information had a material effect on the outcome. SC is going after a point that once approved it became law and therefore it was illegal for the board to use the money elsewhere, because by law the money could only be used for the BB land. I think there are two flaws in this argument -- first saying that it is incorporated in the ref. and therefore by law they could not build anywhere but BB without proof that the site location/boundary information materially altered the affirmative vote then SC is in essence asking the court to potentially go against the will of the majority of voters -- the court will not know for sure without quantifiable proof. Second, if according to NSFOC and SC that the site/boundary information should be incorporated into the language of the ref. since it was on "printed " material from the district, then what is the logic to include the site boundary info and NOT include the attendance data, the split shift scenarios, the proposed cuts in extracurricular activities such as the arts, music and sports. Who decides what data gets included and what does not. Without the proof that the vote would be material altered on olely the site boundary location, how does one conclude that the other published (i.e., printed and sent to the district constituents in the same manner) factors by the SB were of more or less factors in the "swing voter" class.

[Arch]

May 16, 2008 5:01:42 GMT -6 perspective said:

Arch,

I think proof would have to be a quantifiable number. It's just my opinion, but I do not think that a court can possible rule on what is either thought or something someone claims to know -- it can only rule on what can be proven. I think that may be the fatal flaw in SC argument of the case in the first place. If you read the district motion to dismiss (as exciting as that is) they did a sufficient job of saying that even if you (the court) agree that the location was part of the ref. then it must prove that that specific information had a material effect on the outcome. SC is going after a point that once approved it became law and therefore it was illegal for the board to use the money elsewhere, because by law the money could only be used for the BB land. I think there are two flaws in this argument -- first saying that it is incorporated in the ref. and therefore by law they could not build anywhere but BB without proof that the site location/boundary information materially altered the affirmative vote then SC is in essence asking the court to potentially go against the will of the majority of voters -- the court will not know for sure without quantifiable proof. Second, if according to NSFOC and SC that the site/boundary information should be incorporated into the language of the ref. since it was on "printed " material from the district, then what is the logic to include the site boundary info and NOT include the attendance data, the split shift scenarios, the proposed cuts in extracurricular activities such as the arts, music and sports. Who decides what data gets included and what does not. Without the proof that the vote would be material altered on olely the site boundary location, how does one conclude that the other published (i.e., printed and sent to the district constituents in the same manner) factors by the SB were of more or less factors in the "swing voter" class.

Would statements made by board members stating it was their belief that it played a role in passing the referendum be considered 'expert testimony' if offered into evidence?

M2 is on record, (page 16 in this PDF, last sentence at the end of question#2)

winsome.cnchost.com/204/FIM/news_14469_1.pdf

If anything SC is taking M2's lead in this assumption. Was M2 fabricating this simply to get re-elected to his board seat?

I think it's a fair legal question and will weigh in heavily on this specific point along with all of the other statements and printed materials claiming the same thing, like the email from Howie about how BB and the boundaries were a promise made to the community, etc.

I don't know who else you can find that can trump their expert and publically stated opinions.

[rew]

What about CBs speech when he voted for Option 5? He said he could not vote for Option 6 because "the referendum would not pass"?

[steckmom]

May 16, 2008 5:37:59 GMT -6 Arch said:

May 16, 2008 5:01:42 GMT -6 perspective said:

Arch,

I think proof would have to be a quantifiable number. It's just my opinion, but I do not think that a court can possible rule on what is either thought or something someone claims to know -- it can only rule on what can be proven. I think that may be the fatal flaw in SC argument of the case in the first place. If you read the district motion to dismiss (as exciting as that is) they did a sufficient job of saying that even if you (the court) agree that the location was part of the ref. then it must prove that that specific information had a material effect on the outcome. SC is going after a point that once approved it became law and therefore it was illegal for the board to use the money elsewhere, because by law the money could only be used for the BB land. I think there are two flaws in this argument -- first saying that it is incorporated in the ref. and therefore by law they could not build anywhere but BB without proof that the site location/boundary information materially altered the affirmative vote then SC is in essence asking the court to potentially go against the will of the majority of voters -- the court will not know for sure without quantifiable proof. Second, if according to NSFOC and SC that the site/boundary information should be incorporated into the language of the ref. since it was on "printed " material from the district, then what is the logic to include the site boundary info and NOT include the attendance data, the split shift scenarios, the proposed cuts in extracurricular activities such as the arts, music and sports. Who decides what data gets included and what does not. Without the proof that the vote would be material altered on olely the site boundary location, how does one conclude that the other published (i.e., printed and sent to the district constituents in the same manner) factors by the SB were of more or less factors in the "swing voter" class.

Would statements made by board members stating it was their belief that it played a role in passing the referendum be considered 'expert testimony' if offered into evidence?

M2 is on record, (page 16 in this PDF, last sentence at the end of question#2)

winsome.cnchost.com/204/FIM/news_14469_1.pdf

If anything SC is taking M2's lead in this assumption. Was M2 fabricating this simply to get re-elected to his board seat?

I think it's a fair legal question and will weigh in heavily on this specific point along with all of the other statements and printed materials claiming the same thing, like the email from Howie about how BB and the boundaries were a promise made to the community, etc.

I don't know who else you can find that can trump their expert and publically stated opinions.

I don't think MM's opinion of whether or not SC has a "legitimate claim" will affect what the law actually is. It might be relevant as to what MM's intent was at the time, but it shouldn't affect how the judge determines the law.

I agree with perspective that, if this thing gets past the 23rd, the burden will be on the NSFOC to show the class of swing voters alleged.

[Arch]

May 16, 2008 6:11:02 GMT -6 @steckmom said:

May 16, 2008 5:37:59 GMT -6 Arch said:

Would statements made by board members stating it was their belief that it played a role in passing the referendum be considered 'expert testimony' if offered into evidence?

M2 is on record, (page 16 in this PDF, last sentence at the end of question#2)

winsome.cnchost.com/204/FIM/news_14469_1.pdf

If anything SC is taking M2's lead in this assumption. Was M2 fabricating this simply to get re-elected to his board seat?

I think it's a fair legal question and will weigh in heavily on this specific point along with all of the other statements and printed materials claiming the same thing, like the email from Howie about how BB and the boundaries were a promise made to the community, etc.

I don't know who else you can find that can trump their expert and publically stated opinions.

I don't think MM's opinion of whether or not SC has a "legitimate claim" will affect what the law actually is. It might be relevant as to what MM's intent was at the time, but it shouldn't affect how the judge determines the law.

I agree with perspective that, if this thing gets past the 23rd, the burden will be on the NSFOC to show the class of swing voters alleged.

What is the quantifiable number the judge will be looking for?