Response To Injunction Appeal

One day after Judge Toth issued a preliminary injunction ordering the 5 kids that sought the injunction back to school, the SB announced it was going to let the other 3 kids involved in the incident (that were not seeking judicial review or the injunction) back to school as well. Then the next day they announced they intended to appeal the Judge's issuance of the preliminary injunction in order to re-expel the kids that sought judicial review. To the parents seeking judicial review this seemed like something that was done somewhat vindictively. It appears to the parents that filed suit to be a vindictive, face-saving gesture on the School Board's part. Vindictive because it drives up our legal costs and has no real meaning relative to the judicial review process or result. The effective period of the injunction has already passed (it got the kids back in school for the remainder of the Spring 98 semester). In addition, the result of the SB's appeal of the injunction is likely to come after Judge Toth's formal judicial review is complete.

Nonetheless, below is the substance of the "response brief" our attorney (Kelly A-R McCurley) filed in response to their Injunction Appeal Brief. In reading it, the "Appellants" refers to the School Board and we are the "Appellees."

I. Statement of Issues Presented for Review

1.Did the District Court abuse its discretion in granting the Students' motion for a preliminary injunction?

2.Did the District Court exceed its authority in granting the Students' motion for a preliminary injunction.

II. Statement of the Case

A. Nature of the Case

Plaintiffs C. P., C. W., A. S., R. Q. M. and D.M. were expelled from Lewis-Palmer High School for violating School District 38's drug and alcohol policy. Each Plaintiff appealed the expulsion to School District 38's Board of Education. The Board of Education upheld and affirmed the expulsions.

Pursuant to C.R.S. 22-33-108, Appellees' exercised their right of judicial review of the Appellant's decision (R., Vol. I, pp. 24-32) and also requested a preliminary injunction pursuant to Rule 106 (R. Vol. I, pp. 36-38) which was granted. (R. Vol. I, pp. 74-75)

B. Statement of Facts

Appellee's are students at Lewis Palmer High School. Each of the Appellees were honor students and each had no disciplinary record. (R. Vol. II, p. 6) On the weekend of April 3, 1998, Plaintiffs attended an All State Band function. On the evening of April 3, 1998 after all school related activities were over, the students were socializing in the rooms at the motel at which they were staying. (R., Vol. I, pp. 24) Alcohol was present in one of the rooms. Appellee D.M. did not provide the alcohol. However, he was asked to bring it with him and did. He did not drink it. When questioned later about who had been drinking, D.M. admitted that he had couriered the alcohol. (R., Vol. I, pp. 25) Appellees C.P., A.S. and R.Q.M. took a single sip of alcohol and thereafter removed themselves from that environment. (R., Vol. I, pp. 24-25) Appellees C.P., A.S. and R.Q.M. were not caught or suspected. However, they turned themselves in on April 6, 1998. (R., Vol. I, pp. 25) Appellee C.W. had what he believed to be the equivalent of three shots of alcohol. (R., Vol. I, pp. 25) He was in the room when the band chaperone, Mr. Kettles, discovered the alcohol. When Mr. Kettles asked who had been drinking the alcohol, C.W. admitted that he had. (R., Vol. I, pp. 25)

Each student was suspended in violation of school policy. (R., Vol. I, pp. 25-26) Each student requested hearings before Dr. Strawn. David Dilley made findings of fact and recommended expulsion. (R., Vol. I, pp. 29) Each finding of fact contained only the conduct of each student with respect to the possession or consumption of alcohol. (R., Vol. I, pp. 26 ) Mr. Dilley presented no findings of fact with regard to how the Appellees' conduct was detrimental to the welfare or safety of other students or school personnel. Id. (See also, (R., Vol. I, pp. 29) Dr. Strawn expelled the students for the remainder of the school year. (R., Vol. I, pp. 26)

Each student appealed the expulsion to the Board of Education. The Board of Education upheld the expulsion. (R., Vol. I, pp. 26) No additional findings with respect to how the Appellees' conduct was detrimental to the welfare or safety of other students or school personnel was offered. (R., Vol. I, pp. 31-32)

Appellees sought judicial review of the Appellant's decision pursuant to C.R.S. 22-33-108 (2). Appellees also sought an injunction pursuant to Rule 106, C.R.C.P The District Court, Judge Toth, enjoined the Appellants from enforcing the expulsions pending the District Court's review of the expulsion decisions. (R., Vol. I, pp. 74-76) This appeal follows.

III. Standard of Review

This is an appeal from a final order granting a preliminary injunction. The "decision whether to grant preliminary injunctive relief is within sound discretion of trial court and will not be reversed absent abuse of that discretion". Gold Messenger, Inc. v. McGuay, 937 P.2d 907, 909 (Colo. App. 1997). An appellate court reviewing a ruling on a motion for preliminary injunction does so with great deference to the conclusion reached by the trial court. A trial court's ruling will be overturned only if it is manifestly unreasonable, arbitrary, or unfair. Board of County Commissioners, County of Eagle, v. Fixed Base Operators, Inc. , 939 P.2d 464 (Colo. App. 1997).

IV. Argument

A.The District Court did not abuse its discretion in granting the motion for a preliminary injunction.

1.Introduction

The District Court did not abuse its discretion in issuing a preliminary injunction, because the Court found that the Plaintiffs had satisfied all necessary elements pursuant to Gold Messenger, Inc. v. McGuay, supra, for the issuance of a preliminary injunction.

2.Evidence before the District Court.

The evidence before the Court was that one student couriered alcohol, that three students took one sip and that one student drank slightly more. Appellants do not disagree with this statement of the facts and no other evidence was presented by either party on this point. It is of equal, if not greater importance, that Appellants failed to present any evidence that the Appellees' conduct was detrimental to school personnel or other students. (R., Vol. II, pp. 11-15)

3.The Students met the Requirement for a Preliminary Injunction

As stated previously, the decision to grant a preliminary injunction rests within the sound discretion of the trial court. Clinger v. Hartshorm , 911 P.2d 709 (Colo. 1996). In order to receive a preliminary injunction, the party requesting same must prove that

1.there is a reasonable probability of success on the merits;

2.the danger of real, immediate and irreparable injury may be prevented by injunctive relief;

3.a plain, speedy and adequate remedy at law is absent;

4.granting a preliminary injunction will not disserve the public interest;

5.the balance of the equities favor the injunction; and

6.the injunction will preserve the status quo pending a trial on the merits.

Gold Messenger, Inc. v. McGuay, supra.

a.The Trial Court correctly found the probability of success on the merits.

Appellees were expelled pursuant to C.R.S. 22-33-106 (1)(c) which states that a school may suspend or expel for "(b)behavior on or off school property which is detrimental to the welfare or safety of other pupils or of school personnel including behavior which creates a threat of physical harm to the child or to other children...". Appellees sought judicial review because while the findings by Mr. Dilley were that they transported or consumed a small quantity of alcohol, the Appellant failed to establish how this behavior was detrimental. In other words, the Appellant established the existence of the "behavior" which lead to expulsion. What the Appellant failed to establish was the relationship of the "behavior" to a "detriment" or threat of "harm" necessitating judicial review pursuant to C.R.S. 22-33-108.

Under C.R.S. 22-33-108 (3), judicial review is to proceed in accordance with the provisions of Rule 106 (a)(4) of the Colorado Rules of Civil Procedure. ("C.R.C.P.") The standard then for judicial review in this case by the District Court was whether the "body or officer abused its discretion, based on the evidence in the record before the defendant body or officer." Rule 106(a)(4)(I), C.R.C.P.

Appellants correctly cite the legal definition of abuse of discretion in such cases as Van Sickle v. Boyes , 797 P.2d 1267 (Colo. 1990), such that it is abuse of discretion when the decision under review is not supported by any competent evidence. Appellants also correctly quote the legal definition of "competent evidence" as defined in VanSickle, supra. These definitions work in favor of the Appellees.

There is competent evidence in the record that the students either transported or consumed alcohol. Thus, Appellee met its burden of establishing the "behavior" . Appellants argue that appropriate findings have been made because they established the behavior. Appellee's argument fails because there is no competent evidence in the record of the "detriment" or threat of "harm" that the students behavior posed to other students, school personnel or to the Appellees. Thus, it is not enough to establish the behavior. Rather, as Judge Toth correctly stated, Appellant had an obligation to establish the "nexus... between the behavior and the harm allegedly caused."

Consequently, by failing to establish a nexus between the "behavior" of the students and the "detriment" to other students, school personnel or the "harm" to the Appellees or other students, the Appellant abused its discretion. Again, Appellees would agree with Appellants that administrative proceedings are accorded a presumption of validity and that all reasonable doubts must be resolved in favor of the agency. Van Sickle, supra. Likewise, Appellees would again agree with Appellants that a court is not permitted to substitute its judgment for that of an administrative agency. Coates, Reid and Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). However, this does not mean that a Court must "rubber stamp" an agencies' actions either.

For example, in Bauer v. City of Wheat Ridge, 513 P.2d 203 (Colo. 1973), the City of Wheat Ridge denied the Bauer's application for a special exception for building in a flood plain, and the Bauer's appealed to the district court who agreed that it appeared that the application was denied because of the type of building to be built and not because the Bauer's did not meet the criteria for having an application approved under a special exception. In upholding the district court, the Supreme Court stated that Under C.R.C.P. 106(a)(4), the role of review of the district court '. . . shall not be extended further than to determine whether the inferior tribunal has exceeded its jurisdiction or abused its discretion.' The proper function of the district court is to affirm the council where there is 'any competent evidence' to support the council's decision. Civil Service Commission v. Doyle, 174 Colo. 149, 483 P.2d 380 (1971).The findings which the city council made when it denied the permit were very brief, and were extremely vague as to any substantial reason for its action. Bauer, pages 204-205.

In this case, the District Court determined correctly that there must be more than a "behavior" of which the school disapproves for which a student can be expelled (see R. Vol. II, pp. 17, line 17), and that in addition to a "behavior", the school must show that the behavior is detrimental. Therefore, in this case, as in Bauer, supra, there is no competent evidence in the record that any of the Appellees' behavior was detrimental to anyone. In expelling the Appellees without making such a finding, the Appellant abused its authority, and in abusing its authority, the District Court found that Appellees had a reasonable probability of success on the merits.

b.There was a showing of real, immediate and irreparable harm.

In addition to success on the merits, the Appellees were required to show real, immediate or irreparable harm. Three of the Appellees were seniors. Appellants acknowledge that expulsion would not permit them to attend their high school graduation. (See R. Vol. II, p. 14) Likewise, Appellant acknowledged that the two sophomores in this group would receive no credit for the semester, thereby stalling the progress toward graduation. (See. R. Vol. II, p. 14)

The District Court addressed the issue of irreparable harm to the Appellees with respect to its comments within the order issued from the bench regarding the importance of attending one's high school graduation. (See R. Vol. II, p. 18, lines 18-25) While not referencing the importance of attending one's high school graduation specifically as the irreparable harm to Appellees, it is the irreparable harm that these Appellees sought to avoid. (See R. Vol. I, p 36-37) Moreover, the sequence in which the Court addressed the requirements for a preliminary injunction makes it clear that the Court was addressing the requirement of irreparable harm to the Appellees at this point. Thus, to state that the Court noted only irreparable harm to the Appellants is not an accurate recitation of how the Court issued its order.

The Court has adequately addressed the issue of irreparable harm to the Appellees. Since the Court did not abuse its discretion, its decision should not be disturbed on review.

c. The students did not have an adequate remedy at law.

As stated in the record by the pleadings filed and statements made before the District Court, the students had no other remedy by which to be immediately permitted to attend school and other school related functions such as graduation other than a preliminary injunction. Appellants' version of a speedy and adequate remedy as set forth in the Defendants' Response to Motion for Expedited Hearing and for Stay of Decision (see R. Vol. I., p. 42-54) would not have permitted the Appellees who were seniors to graduate and the sophomores would have lost their ability to graduate with their classmates due to the loss of a semester.

Additionally, the record is certainly silent on the part of Appellants as to what other remedies were available to the Appellees which would have permitted the seniors to graduate and the sophomores to remain on track with their peers.

d. The preliminary injunction is contrary to public interests.

The Court did make findings that the injunction does serve a public interest. Moreover, it is clearly in the public's interest that societies' children be educate, that they not have the free time on their hands that they would otherwise have if they were not in school five days per week and that the values that we teach them such as honesty and integrity matter.

While Appellants discusses the various public and legislative policies regarding the use and possession of alcohol by minors and claim that based on these policies it is contrary to the public's interest to issue a preliminary injunction allowing the Appellees to return to school, nothing could be a less accurate state of the Court's position on this issue. Judge Toth was quite clear that he does not condone the use or possession of alcohol by the Appellants or any other minor. (See R. Vol. II, p. 17) Judge Toth was also clear he supports punishment but that the "punishment should fit the crime." (See R. Vol. II, p. 18)

In this case, the Appellant has a one strike policy. Any use or possession of alcohol, even so much as a single sip, and expulsion is mandatory, without any regard given to the student's disciplinary record or contribution to the student body as a whole. Moreover, such a policy is in contravention of the legislation regarding mandatory expulsion. Specifically, the legislature in C.R.S. 22-33-106 (1)(d)(I) has noted those offenses for which expulsion is mandatory and they are: possessing or using a dangerous weapon; the sale of a drug or controlled substance or the commission of what could be considered a third degree assault if committed by an adult. Thus, in making expulsion mandatory, the Appellant is substituting its judgment for that of the legislature, which is not in the public's interest.

e.The balance of the equities favors injunction.

The Trial Court did not address balance of the equities. However, the weight of the discussion before the Court and the Order by the Court notes that the balance of the equities was in favor of granting the injunction. More specifically, public school education is mandated and expulsion should be a remedy of last resort in accordance with C.R.S. 22-33-201. While the Appellants' parents generally favor a zero tolerance policy for the possession or consumption of alcohol, all parents are in agreement that zero tolerance need not mean expulsion unless conditions exist which would satisfy C.R.S. 22-33-106(1)(c). Because C.R.S. 22-33-106 (1)(c) was not satisfied by these expulsions, because there is no clear, adequate or speedy remedy and because these expulsions do not serve the public's interests, the balance of the equities favored granting the preliminary injunction.

f.That the injunction will preserve the status quo while pending trial.

While not addressed by Appellants, this is an element which must be addressed and satisfied. This element was satisfied by the Trial Court when it noted that keeping the Appellees in school would preserve the status quo.

4.The Board of Education did not issue appropriate findings.

In this case, the Appellant found that the Appellees had violated the district's zero tolerance policy for drugs and alcohol. Appellee's specifically reject any citation to the policy as it is not a part of the Trial Court's record. Moreover, as noted in the record (R. Vol. II, p. 7), all Appellees deny receiving a copy of this policy.

Their objection notwithstanding, the policy makes a general statement that use or possession of alcohol is detrimental to the welfare, safety and morals of other students. While the School Board is certainly vested with the authority to create policy in this area pursuant to C.R.S. 22-32-109, the policy must still be in accordance with Article 33 of title 22. It cannot

be said that the creation of a policy which states that use or possession of alcohol is detrimental to the welfare or safety of others satisfies the requirement of C.R.S. 22-33-106(1)(c). In other words, C.R.S. 22-33-106(1)(c) requires "behavior" to be detrimental, not the creation of a policy making a general statement that the use or possession of alcohol is detrimental. Thus, expulsion may be implemented when there is a behavior which is detrimental. As stated previously, the behavior is present. The finding of any form of detriment other than a policy so stating detriment is not present. This is not an appropriate finding under Rule 106, C.R.C.P.

For all these reasons, the decision of the Trial Court was sound and should not be disturbed on review.

B.The District Court did not exceed its authority in granting the motion for preliminary injunction.

1.The District Court did not substitute its judgment for the judgment of the Board of Education

Judicial review exists pursuant to C.R.S. 22-33-108(2) to insure a checks and balances approach for judgments which interfere with a child's fundamental right to an education. The Court was very clear that the Appellants failed to make findings of detriment or harm in accordance with C.R.S. 22-33-106(1)(c). Thus, because the Appellant failed to meet its statutory obligation to make those findings, it cannot be argued that the Trial Court substituted its judgment for that of the School Board.

Appellants argue that the District Court substituted its opinion that the conduct was not detrimental to the health or safety of others. However, no where within the record (See R. Vol. I and R. Vol. II) does the Appellant provide a single fact stating that the each student's "behavior was detrimental because...". To permit the Defendants to make a statement that this behavior was detrimental without evidence of more would allow the Defendants to completely abuse their authority by creating policies for virtually any conduct, i.e. bringing a Bible to school, and determining that such conduct was detrimental to the welfare or safety of others with expulsion as the penalty for violation of the policy.

In this case, the Court recognized that Appellant failed to make any findings of detriment or harm specific to each student and determined that same was an abuse of authority. Its judgment should not be disturbed on review.

2.The District Court did not exceed its authority after remanding the matter to the Board of Education.

Appellants complain that the expulsion should have continued until Appellants were given an opportunity to make findings of detriment. In this case, Appellees specifically requested of the Mr. Dilley and the Board of Education to tell them how their conduct was specifically detrimental or harmful to others. In one case, this request was rebuffed by Mr. Dilley stating that he would not debate the matter. (See R. Vol. I, p. 26 and R. Vol. II, p. 25) To continue the students' expulsion to permit the Board of Education time to do what it was legally obligated to do under C.R.S. 22-33-106 and Rule 106, C.R.C.P. would only have served to further punish the students and to reward the Board of Education for refusing to abide by its legal obligation. The District Court recognized this and required that the students be returned to school. There is no abuse of discretion and the judgment of the Trial Court should stand.

V. CONCLUSION

The Appellees' met the burden of meeting all six criteria for the granting of a preliminary injunction. Consequently, the Trial Court properly issued a preliminary injunction. Its judgment should not be disturbed on appeal.

© Copyright 2003 All Rights Reserved.