[FirewallNOVA got this report from a spectator at today’s hearing.]
Substitute Circuit Court Judge Herman A. Whisenant heard argument today on a motion in the Brambleton v. LCPS case. It’s actually titled “Kelsey v. Loudoun County School Board,” but it exists because a number of parents of Briar Woods HS students who live in Brambleton are unhappy that the school board’s latest attendance-zone map moves their children out of Briar Woods. The law does allow anyone who is negatively affected by a school board’s decision to ask a court to review it, but the review is kind of limited and the court can only overturn the school board if the court finds the decision was “arbitrary and capricious.”
The exchange between the attorneys and the judge was interesting…
Today’s argument was a long way from deciding the overall case, but it dealt a major blow to Mr. Kelsey and his clients. They wanted to compel the school board to answer to “discovery,” a legal process that lets each side demand all kinds of information from the other side. The theory goes that both sides should know all the facts, so no one is surprised at trial, and the chances of settling before trial are the best that they can be. The practice, sadly, is that one or both sides try to use the power of their discovery rights to harrass the other side into giving up. I’m not saying Mr. Kelsey was doing anything improper, but I do believe the school board’s lawyer said he’d issued something like a hundred different discovery demands. Sounds like a lot to me, but who knows? Anyway, the school board was there to argue that discovery should be limited, if it was even available at all.
Mr. Kelsey tried to justify his discovery demands by saying that, without them, he would have no way to know if (just hypothetically) someone had bribed a member of the school board to vote a certain way with $50,000. He then went on to complain that members of the school board had met privately with their constituents, found out what those constituents wanted, and then went off and managed to get the votes on the school board to give those constituents what they wanted. Apparently, he thinks that’s grounds for reversal. Curiously, he mentioned that he, too, had been at some closed meetings with his own school board member. At the end of his argument, and perhaps because the judge was a retired gentleman from Prince William with a down-state accent, Mr. Kelsey mentioned that today was the 103’rd birthday of Ronald Reagan. Maybe he believed the judge would think only a Republican would know that and, being a good Prince William Virginia gentleman himself, that the judge was also a Republican. That’s just a guess, but I don’t think mentioning Ronald Reagan was such a good idea, no matter what the reason was.
LCPS’s outside counsel responded and made a solid point that, if discovery were available in every judicial review of a legislative decision, we’d never stop seeing discovery demands aimed at the majority members on every vote in Congress.
The judge ultimately stayed within the language of the statute authorizing judicial review. He said there was no provision for discovery in the statute and that, as he read it, the authority of the court is limited to a review of the public record, the submissions of the school board, and the evidence delivered by the petitioner. He specifically spoke to the hypo about being unable to show that anyone had bribed a board member, saying he could think of lots of ways to get evidence of that without discovery. (It’s kind of hard to imagine how discovery would even get that to come out. “Admit, deny, or state you lack knowledge of the following: You took $50,000 to vote a certain way.” Yeah, that would do it.)
In the end, the judge ruled absolutely in LCPS’s favor, and that was that. No date for any next hearing got set, so I don’t know where this will go next. Without discovery, Mr. Kelsey’s case may be weak. The public record made by the school board is almost verbatim what (now retired) Judge Horne said they needed it to be, the last time one of these things went to court. Very hard for a different judge to argue otherwise in the same court.
We’ll have to wait and see.