Free Motion for New Trial - District Court of Arizona - Arizona

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COLLINS & COLLINS, L.L.P. By: JOSEPH E. COLLINS Attorneys for Plaintiff Arizona Bar #018289 10801 North 32nd Street, Suite 3 Phoenix, Az., 85028 (602) 788-7227 ===================================================================== IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

6 7 8 9 10 Plaintiff, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 testing prove alcohol in Plaintiff's system. Interrogation of Plaintiff who was a minor at the time occurred without the presence of her parents or attorneys. The Goodyear City Police were contacted, but took no action. After several hearing and contrary to the recommendations of Plaintiff accepted and upon tasting the water realized it had an odd taste. It was later claimed by another student that the water was alcohol. Defendants subsequently suspended Plaintiff from school for this accident claiming a no tolerance policy against drinking while at school regardless of a student's knowledge. 2. None of the Defendants detected any alcohol on Plaintiff's breath nor did any and IN AND FOR THE COUNTY OF MARICOPA ===================================================================== In Re The Matter of: ) ) KENNETH & TOWANDA LYON, ) Case Number CV03-2306PHX-JAT for TARALYN D. LYON, ) ) ) ) ) )

MOTION FOR NEW TRIAL

ESTRALLA FOOTHILLS HIGH SCHOOL,) et al. ) ) Defendant. ) ===================================================================== Plaintiff moves the court for a new trial pursuant to F.R.C.P. Rule 59, and show the court. 1. On November 6, 2002, Plaintiff was a student at Estrella Mountain High School

and was returning from a gym class when another student offered her a drink from a water bottle.

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Defendants' hearing officer, Plaintiff was suspended from school for the remainder of the school year. 3. The student hand book which is Defendants' Exhibit 7 (Bates Number EF000230)

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 either alone or in combination." The handbook, however, does not say what "all other relevant 23 24 25 26 27 28 factors" include. Plaintiff received the maximum allowed and more than any other student has ever received, although she was an honor student, a student body officer and had no prior history of any discipline. 7. Defendant's exhibit 12 shows the following information. expulsion and a second Offence is solely expulsion. (Bates page number EF000231of Exhibit 7) 6. The handbook also states that "depending upon the nature of the violation, student considered the most severe. Each category has an established disciplinary action. Group A offenses are those offenses that are generally felonious in nature. Group A offenses are drug/alcohol use or possession including paraphernalia, arson, verbal/physical assault of a staff, drug selling or pushing, inciting to riot, possession of a weapon, bomb threat, gang activity. 5. The handbook also states that for a first offense, there is long term suspension or states "if you violate the rules of the Estrella Foothills High School, certain consequences will follow. The specific consequences will be determine on the basis of the severity and or the frequency of the offense". Defendants here ignored completely the "frequency of the offence" and never informed Plaintiff of the "severity" of the accidental consumption of alcohol. 4. The handbook lists three (3) disciplinary categorizes; A, B, and C with A

discipline shall be progressive. For example, generally a student's first violation should merit a lighter penalty than a subsequent violation. District employees shall take into account all other relevant factors in determining an appropriate penalty. The principal penalty may be imposed

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Student Number Plaintiff 20065 20123 20009 20216 20525 20160 20316 20590 20725 20758 20622 20624 20771 20716

GPA 4.5 1st 1st 2.34 3.00 1st 1st 2nd 4th 1st 1st 1st 1st 1st 1st 1.94 1st 2nd 1.17 2nd

Offense Alcohol Alcohol Alcohol Assault1 Drugs Drugs Drugs Drugs Drugs Drugs Drugs Alcohol Alcohol Drugs Drugs

Days Suspended 15 15 15 3 10 10 10 10 10 10 10 10 10 10 10

Extra Curricular yes no yes yes yes no yes no no no no no no no no

Bates # EF179 EF179 EF179 EF176 EF176 EF178 EF180 EF181 EF181 EF182 EF182 EF183 EF183 EF183 EF183 and EF184 EF184 EF185 EF185 EF186 EF186 EF186 EF186

20955 20123 20890 20697 20797 20389 20695

1.25 2.21

1st 1st 1st 2nd 1st

Phy Agg Staff Alcohol Alcohol Drugs Drugs Alcohol Alcohol

3 15 3 10 10 10 10

no no no no no no no

1.59 1.81

3rd 1st

1

Dr. Schmidt testified that this was a class A offense.

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8.

Defendant also received a twenty percent reduction in her grades. There was no

testimony that any other student received that punishment. RULE 50 MOTION

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 rational basis for selectively enforcing the law is a pretext for "an impermissible motive." 23 24 25 26 27 28 Freeman v. City of Santa Ana, 68 F.3d 1180, 1187-88 (9th Cir.1995) (internal quotation marks and citation omitted); Armendariz v. Penman, 75 F.3d 1311, 1327 (9th Cir.1996) (en banc). Squaw Valley Development vs. Goldberg, 375 F.3rd 936, (9TH Circuit 2004). 11. However, here we are dealing with a "fundamental right" does not implicate a fundamental right or a suspect classification, the plaintiff can establish a "class of one" equal protection claim by demonstrating that it "has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook, 528 U.S. at 564, 120 S.Ct. 1073. Where an equal protection claim is based on "selective enforcement of valid laws," a plaintiff can show that the defendants' be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The equal protection guarantee protects not only groups, but individuals who would constitute a "class of one." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); Sea River Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.2002). In Squaw Valley the court said: "Where, as here, state action 10. 9. In considering a motion for a directed verdict, we view the evidence as a whole

and we draw all possible inferences in favor of the non-moving party. Shakey's, Inc. v. Covalt, 704 F.2d 426, 430 (9th Cir.1983). EQUAL PROTECTION The Equal Protection Clause ensures that "all persons similarly situated should

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12.

Defendants treated Plaintiff differently than other similarly situated students when

she was suspended for consuming alcohol on campus. 13. A Defendant treated her differently than other similarly situated students; Squaw

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 17. 23 24 25 26 27 28 considered the most severe. Each category has an established disciplinary action. Group A offenses are those offenses that are generally felonious in nature. Group A offenses are drug/alcohol use or possession including paraphernalia, arson, verbal/physical assault of a staff, drug selling or pushing, inciting to riot, possession of a weapon, bomb threat, gang activity. The handbook lists three (3) disciplinary categorizes; A, B, and C with A 16. The student hand book which is Defendants' Exhibit 7 (Bates Number EF000230) 15. In this case, the Court should look at the Defendants' definition of a class to Valley Development vs. Goldberg, 375 F.3rd 936, (9TH Circuit 2004). What then is a similarly situated student. 14. Squaw Valley citing Freeman indicated that "the goal in identifying a similarly

situated class ... is to isolate the factor allegedly subject to impermissible discrimination [to] the similarly situated group" and use it as a "control group".

determine what evidence goes before the jury. Arizona Revised Statute §15-843(N) requires that Defendants through "the Principal of each school..... ensure that all rules pertaining to the discipline, suspension, and expulsion are communicated to students at the beginning of each school year."

states "if you violate the rules of the Estrella Foothills High School, certain consequences will follow. The specific consequences will be determine on the basis of the severity and or the frequency of the offense". Defendants here ignored completely the "frequency of the offence" and never informed Plaintiff of the "severity" of the accidental consumption of alcohol.

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18.

The handbook also states that for a first offense, there is long term suspension or

expulsion and a second Offence is solely expulsion. (Bates page number EF000231of Exhibit 7) 19. The handbook states that "depending upon the nature of the violation, student

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the factors usually considered important by the decision maker strongly favor a decision contrary 23 24 25 26 27 28 to the one reached. Village of Arlington Heights V. Metropolitan Housing Development Corporation et Al., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 pg 565(1977). 23. Defendants failed to take into consideration all relevant factors when disciplining demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Village of Arlington Heights V. Metropolitan Housing Development Corporation et Al., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 pg 564(1977). 22. Departures from the normal procedural sequence also might afford evidence that ever received, although she was an honor student, a student body officer and had no prior history of any discipline. 20. The difference in treatment was intentional. Squaw Valley Development vs. discipline shall be progressive. For example, generally a student's first violation should merit a lighter penalty than a subsequent violation. District employees shall take into account all other relevant factors in determining an appropriate penalty. The principal penalty may be imposed either alone or in combination." The handbook, however, does not say what "all other relevant factors" include. Plaintiff received the maximum allowed and more than any other student has

Goldberg, 375 F.3rd 936, (9TH Circuit 2004). 21. Determining whether invidious discriminatory purpose was a motivating factor

improper purposes are playing a role. Substantive departures too may be relevant, particularly if

Plaintiff. Defendants also failed to their own stated policy, which conflicts with the

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"implementation" of that policy . Policy J-3050 (bates stamp EF142) states "any student who violates the above may be subject to warning, reprimand, probation, suspension, or expulsion, in addition to other civil and criminal prosecution."

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28. 27. The other student had a lower GPA and did not get involved in other activities. 26. If you look at the two other girls with the same offense date you will note the one legitimate governmental policy. There were no facts given to show a difference between Plaintiff and any other. In the Defendant's mind the offense was all that mattered. If that was the case then why did 19 other students receive a lesser punishment. The 19 other students are not even in the same class but a lesser class and they received lesser punishment when they should have received more. 24. All the witnesses testified that they disciplined based upon the offense. The

testimony flies in the face of written policy. A jury could find from these facts that all defendants acted intentionally. 25. No rational person could regard the circumstances of the plaintiff to differ from

those of a comparator to a degree that would justify the differential treatment on the basis of a

that brought the liquor and drank it received the same punishment. Plaintiff 20065 20123 2.34 4.5 1st 1st 1st Alcohol Alcohol Alcohol 15 15 15 yes no yes EF179 EF179 EF179

They were clearly in a lesser class as well. QUALIFIED IMMUNITY 42 U.S.C. § 1983"creates a private right of action against individuals who, acting

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under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc). "Qualified immunity, however, shields § 1983 defendants `[f]rom liability for civil damages insofar as their conduct does not violate clearly

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 it. 23 24 25 26 27 28 31. The student hand book which is Defendants' Exhibit 7 (Bates Number EF000230) the second question is "whether the right was clearly established." Saucier, 533 U.S. at 201, 121 S.Ct. 2151. A constitutional right is clearly established when "it would be clear to a reasonable [government actor] that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. 30. Squaw Valley Development vs. Goldberg, 375 F.3rd 936, (9TH Circuit 2004) The defendant's themselves defied the right and it's boundaries and did not follow and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir.2001). "If no constitutional violation is shown, the inquiry ends." Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir.2003). On the other hand, if "the parties' submissions" create a triable issue of whether a constitutional violation occurred, established statutory or constitutional rights of which a reasonable person would have known.' " Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (alteration in the original)). 29. Under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the

first step in the qualified immunity analysis is "to consider the materials submitted in support of,

states "if you violate the rules of the Estrella Foothills High School, certain consequences will follow. The specific consequences will be determine on the basis of the severity and or the frequency of the offense". Defendants here ignored completely the "frequency of the offence"

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and never informed Plaintiff of the "severity" of the accidental consumption of alcohol. 32. The handbook lists three (3) disciplinary categorizes; A, B, and C with A

considered the most severe. Each category has an established disciplinary action. Group A 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 process and show the court that the facts at trial allow the claim to be heard. 23 24 25 26 27 28
2

offenses are those offenses that are generally felonious in nature. Group A offenses are drug/alcohol use or possession including paraphernalia, arson, verbal/physical assault of a staff, drug selling or pushing, inciting to riot, possession of a weapon, bomb threat, gang activity. 33. The handbook also states that for a first offense, there is long term suspension or

expulsion and a second Offence is solely expulsion. (Bates page number EF000231of Exhibit 7) 34. The handbook states that "depending upon the nature of the violation, student

discipline shall be progressive. For example, generally a student's first violation should merit a lighter penalty than a subsequent violation. District employees shall take into account all other relevant factors in determining an appropriate penalty. The principal penalty may be imposed either alone or in combination." The handbook, however, does not say what "all other relevant factors" include. Plaintiff received the maximum allowed and more than any other student has ever received, although she was an honor student, a student body officer and had no prior history of any discipline. SUBSTANTIVE DUE PROCESS CLAIM 35. Plaintiff request the court to grant her a new trial on the dismissed claim2 of due

36.

As a threshold matter, "[t]o establish a substantive due process claim a plaintiff

must show a government deprivation of life, liberty, or property." Nunez, 147 F.3d at 871; see City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 198, 123 S.Ct. 1389, 155

The claim was dismissed at the summary judgment level.

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L.Ed.2d 349 (2003) (noting threshold requirement of identifying property interest). Squaw Valley Development vs. Goldberg, 375 F.3rd 936, (9TH Circuit 2004) 37. Plaintiff has an interest in a free public education. GOSS v. LOPEZ, 419 U.S 565

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 41. 23 24 25 26 27 28 own standards on matters of conduct in which society as a whole has important interests. Wisconsin v. Yoder, 406 U.S. 205, 215-16, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). 42. The student hand book which is Defendants' Exhibit 7 (Bates Number EF000230) The very concept of ordered liberty precludes allowing every person to make his Angeles, 147 F.3d 867, 871 (9th Cir.1998) (quoting United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)); Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (explaining that substantive due process protects against government power arbitrarily and oppressively exercised). Squaw Valley Development vs. Goldberg, 375 F.3rd 936, (9TH Circuit 2004). 39. Arbitrary is something that is "Determined by chance, whim, or impulse, and not (1975). 38. `[T]he touchstone of due process is protection of the individual against arbitrary

action of government.' " County of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)).

by necessity, reason, or principle. see http://dictionary.reference.com/browse/arbitrary 40. The substantive component of the Due Process Clause "forbids the government

from depriving a person of life, liberty, or property in such a way that `shocks the conscience' or `interferes with rights implicit in the concept of ordered liberty.' " Nunez v. City of Los

states "if you violate the rules of the Estrella Foothills High School, certain consequences will

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follow. The specific consequences will be determine on the basis of the severity and or the frequency of the offense". Defendants here ignored completely the "frequency of the offence" and never informed Plaintiff of the "severity" of the accidental consumption of alcohol.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 46. 23 24 25 26 27 28 be subject to warning, reprimand, probation, suspension, or expulsion, in addition to other civil and criminal prosecution." 47. At least one of the jurors believed the conduct of the school shocked the conscious. Policy J-3050 (bates stamp EF142) states "any student who violates the above may relevant factors in determining an appropriate penalty. The principal penalty may be imposed either alone or in combination." The handbook, however, does not say what "all other relevant factors" include. Plaintiff received the maximum allowed and more than any other student has ever received, although she was an honor student, a student body officer and had no prior history of any discipline. 44. The handbook also states that for a first offense, there is long term suspension or 43. The handbook lists three (3) disciplinary categorizes; A, B, and C with A

considered the most severe. Each category has an established disciplinary action. Group A offenses are those offenses that are generally felonious in nature. Group A offenses are drug/alcohol use or possession including paraphernalia, arson, verbal/physical assault of a staff, drug selling or pushing, inciting to riot, possession of a weapon, bomb threat, gang activity.

expulsion and a second Offence is solely expulsion. (Bates page number EF000231of Exhibit 7) 45. The handbook also states that "depending upon the nature of the violation, student

discipline shall be progressive. For example, generally a student's first violation should merit a lighter penalty than a subsequent violation. District employees shall take into account all other

He said "Had the case gotten to the jury, I, for one, was prepared to award her whatever damages

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she requested, times two, plus written apologies from all the arrogant bully bureaucrats." see Attachment a 48. Defendants did not consider the fact that there was no alcohol in the system of

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ` ______________________________ JOSEPH E. COLLINS CERTIFICATE OF MAILING THIS IS TO CERTIFY that a true and correct copy of the foregoing was hand delivered, not mailed, to Respondent on July 17, 2006 to: /s// 018289 jec ______________________________ JOSEPH E. COLLINS Attorney for Plaintiff Plaintiff, she did not know what was in the bottle. She drank it without intent. 49. Plaintiff was the victim of a practical joke.

WHEREFORE, the court should set the matter for trial. Dated June 21, 2006 COLLINS & COLLINS L.L.P

Georgia A. Staton, Bar #004863 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 /s// 018289 jec

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ATTACHMENT A From: [removed to protect identity - Juror No. 3] Sent: Friday, June 23, 2006 8:05 PM To: [email protected] Subject: A message from your AzbarBio Mr Joseph E Collins , The following message is from "Find a Lawyer" on Azbar.org: ============================================================== Well, now I remember why I didn't go into trial work. My blood pressure. I trust your client has learned a valuable lesson ­ namely, that there is a big difference between "law" and "justice." Today (and in the past 3½ years), she got a big dose of law, and no justice. Had the case gotten to the jury, I, for one, was prepared to award her whatever damages she requested, times two, plus written apologies from all the arrogant bully bureaucrats. I did not discuss the case with any other jurors, but I overheard two on the elevator agreeing that your client really had no case, because "after all, she did admit she drank the alcohol, and rules are rules." I will flatter myself by imagining that had I had a chance to reason with them in the jury room, I would have changed their minds. Defendants made the venerable "The law is the law" argument, which I so learned to despise in law school. "The law says that Jews must get a tattoo on the left wrist. Are you Jewish?" "Yes." "Then, case closed; hold out your arm and shut up. The law is the law." That's not the point. Your case (as I perceived it) was (1) the policy is unfair ("unjust") because it is ambiguous and arbitrary with respect to considering "other factors," and (2) if in fact the defendants are correct that no other factors are ever considered, then it is arbitrary and unreasonable because no other factors are ever considered! Here are some questions from my notes. Does assault with a knife get the same punishment as assault with a gun? (Presumably, yes.) Assault with fists and feet? (Presumably, yes.) How about assault with a rubber band? If a student shoots a rubber band at a teacher, the punishment is the same as assault with a knife or gun? "Zero tolerance" apparently means "strict liability," with no scienter required. So, if Student A plants drugs in Student B's backpack, Student B gets suspended? (That sounds like a good way to eliminate competition for the lead in the school play, or for a position on a sports team.) Query: if the principal or superintendent had unknowingly taken a drink from a "spiked" bottle, or had drugs planted in his desk, would that person have resigned, or willingly accepted suspension? (Presumably, the school district has "zero tolerance" of alcohol and drugs for teachers, too, right?) If a student spiked the drinking fountain, the principal would follow the manual and suspend everybody in the school?

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Somebody might want to believe that your client's story is self-serving, that in fact she did know that she was drinking alcohol. Yet, in the trial, the defense seemed to concede that she did not have such knowledge, and that it would not matter anyway. "Zero tolerance" means "zero common sense." It means all students receive the same penalty, regardless of the "nature" of the offense (or "severity" of the offense, as the superintendent said, in explaining why some offenses get suspension, and some get expulsion. In other words, all offenses are equal, but some are more equal than others.) Defendants said repeatedly, "Everybody gets the same penalty," as if that was supposed to prove fairness. That's the point! Everybody should NOT get the same penalty! One thing I had hoped to hear about was the word "felonious." The policy manual says that Class A infractions are "felonious" behavior. Was the plaintiff charged with a felony? Did she commit a felony? Why is it fair or consistent for her to get the same penalty as felons? Why is it fair for her to be branded a felon, to be stigmatized as a felon? Isn't the policy really intended to treat all "felonious" activities the same? You know, this case reminds me of the cases in which students have been treated as felons (drug dealers) for possession of Midol, Advil and Certs. http://www.crossmyt.com/hc/zerotol/zero-tol.html So, the real lesson Ms. Lyons should have learned is, "Some adults are morons, and often they are in charge. Reason, common sense and justice have no meaning for morons. They don't need reason, common sense or justice; they have something better: a Policy Manual." Please tell your client that she should not have any self-doubt. She did the right thing, sticking up for principle, even though it has cost her and her family much heartache and money. She is a fine young woman, whom any parent would be proud to have as a daughter, and whom any reasonable school would be proud to have as a student. I hope that she will not be embittered by her realization that sometimes, as Dickens wrote, "the law is a ass ­ an idiot." I hope she will not be embittered, but I would certainly understand if she were. ==============================================================

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