Monday's attempt by outgoing Dover Area School Board member David Napierskie to save the district from legal fees is not as simple as it sounded, said the district's attorney Richard Thompson.

Napierskie asked the board to revoke the curriculum change that includes intelligent design, agree not to add it again and ask their legal representation, Thomas More Law Center, to file a motion to dismiss the lawsuit against them and pay $1 in damages.

Napierskie said he believes the action would make the case moot and prevent the district from paying legal fees.

"It's not as simple as let's dismiss the case and walk away with paying $1," said Thompson, who spoke with Napierskie prior to his motion. "By merely dismissing the case, even if that were agreed upon, would not eliminate the plaintiffs' ability to ask for reasonable attorney fees."

Plaintiffs' attorneys declined to comment.

Kevin Alan Lewis, assistant professor of theology and law at the Talbot School of Theology, Biola University in California, said the defense could file a motion to dismiss on the basis that there is no controversy because the new board doesn't favor the curriculum.

But despite the implications of the election, the judge could say the policy, one which can change often, falls under the possibility of escaping review and not accept a motion to dismiss - much like the nine-month constraint surrounding abortion cases, he said.


Judge John E. Jones III said the election results don't figure into his ruling.

Thompson said that the judge is making his decision based on the board's actions from last year when the plaintiffs allege a constitutional violation and that needs to happen.

"The case was tried with the assumption that regardless of who won or lost an appellate court and maybe ultimately the (U.S.) Supreme Court would take a look at it and change the law," Thompson said. "If they don't appeal, what they've done is short-circuit the entire legal strategy that was put in place by the Thomas More Law Center."

But the new board can make its own decisions, he said. Napierskie said he was looking out for the taxpayers and started thinking about the possibilities the day after the election.

"I think (Thompson's) agenda is a little different from the way I'm looking at it myself," Napierskie said.

Thompson said he believed Napierskie was pushed by the pro-intelligent-design Discovery Institute.

The defense and institute have been at odds since before the trial began in Harrisburg. The Discovery Institute opposes teaching intelligent design in the classroom. The defense said the institute victimized its clients.

No one from the Discovery Institute could be reached for comment.

Napierskie said he talked to representatives from the institute but said they didn't influence his decision. He considered other sources, such as advice from a Carlisle attorney Andrew Shaw.

In a legal analysis, which Napierskie said was prepared for him by Shaw, the attorney said he saw a substantial risk that the judge would rule against the board and said the board could carry on or try to end the case prior to the ruling.

"The law is clear that a court cannot make a decision on a case that is moot," Shaw's document read. "If the court cannot make a decision, the court also cannot award attorney fees."

Napierskie said he was surprised board members didn't second his motion because they won't be around to fight the suit, and the new board isn't interested in having intelligent design in science class. He also didn't believe the new board would continue with Thompson.

It doesn't look like incoming board members will adopt Napierskie's idea.

Several incoming board members, including Patricia Dapp, Terry Emig and Judy McIlvaine, said they want to hear what the judge has to say in the case. Some believe it will help bring closure and healing to the community.