Previous Extra Extra's!!!

Hearing on the 8/26 a Dissappointment!

On the 26th Judge Cisneros heard verbal arguments from both sides but did not make a decision. She seemed to be saying that she could only review the SB's actions in context with their policy not state law. That is, a request for judicial review was limited to her determining whether they abused their discretion/authority in the execution of the policy relative to our kids. She is reluctant to substitute her judgment for the boards relative to whether the kids misbehavior warranted expulsion.

It appears that a judicial review of a school boards decision is a relatively useless exercise in that the judge also does not appear to factor in all the relevant circumstances of the incident. The question of whether a zero tolerance policy for something above and beyond what the state has authorized also appears to be beyond the scope of a judicial review.

All and all it was/is a big disappointment as the support we received from Judge Toth and the Appellate Court had been very encouraging. Judge Cisneros is now going to investigate the record to determine if we received adequate notice of the policy and then make a decision. We didn't ever receive the policy and the school board doesn't have any evidence to the contrary but we are not sure if this will be enough for her to rule in our favor. But the real substance of our disagreement appears to be beyond the scope of a "judicial review". We may have a final decision from Judge Cisneros in a couple of months.

July, 1999 - Hearing set for the August 26th!

All of a sudden the School District is "hot to trot" to get a District Court Decision! They filed a motion to "set a hearing" for August 26, 1999. This request was accepted and at 8AM on August 26 we will be meeting in Judge Cisneros' Court hoping for a decision on our case. Up until this point the School District hasn't seemed to be in any sort of a rush to resolve this. We have submitted many suggestions to them via many channels that we were interested in sitting down with them and resolving this out of court, but they have all been ignored. Moreover, their actions on the court side of this struggle have indicated a desire to draw this out as long as possible and make it very expensive for us to get a judicial review of their decision.

Now they are in a rush! Perhaps they want to get this resolved before the School Board Elections this Fall? Then again, if they are planning to Appeal Judge Cisneros' decision (assuming it doesn't go their way), they are running out of time! It typically takes from 6 to 12 months to get an appellate decision in Colorado. All of the kids originally involved in this case will have graduated come May of next year. Are they that adament to inflict additional harm on these kids???? I hope not.

June 14, 1999 - Judge Theresa Cisneros Assumes our Case!

On June 14, 1999 the Judge Gilbert Martinez (the senior District Court Judge) reassigned our case to Judge Theresa Cisneros. Judge Richard Toth removed himself from our case on May 26 fro reasons detailed below. We don't know too much about Judge Cisneros. We do not know very much about Judge Cisneros. According to some, she has a reputation for being more liberal in her views than some but we are not sure that that is particularly relevant to this case. After all, many people have spoken out against Zero Tolerance excesses including Rush Limbaugh and Phyllis Schafley.

We are hoping for a decision within a month or two. However, if it takes another 6 months, we won't be surprised. The court system does not move quickly (as a rule).

May 26, 1999 - Judge Toth Excuses Himself from Our Case!

On May 26, 1999 we were surprised and disappointed that Judge Toth excused himself from our case. We were certainly not expecting that. Especially because Dr. Winans specifically raised this issue with him (via his wife) when he was first asked to take his mother as a patient! It was not a problem then (last October) but now "may constitute the appearance of a conflict of interest."

Initially (at the hearing) Judge Toth stated that grounds for him to excuse himself require that the SB submit evidence of bias. He said no such evidence had been submitted because there is no evidence (in his opinion). But then he went on to say that since last October his Mother-in-law has also become a patient of Dr. Winans' and they are both in an ICU-type nursing home requiring life and death decisions to be made. He then said given this he didn't feel comfortable staying on the case and was going to ask the senior district court judge to reassign it.

We were really surprised. He could have made this decision 6 months ago! We were all disappointed in him. But on the positive side it is still extremely unlikely that the replacement judge will rule against us given that via the injunction and the appeals court upholding the injunction, 4 different judges have all weighed in on our side. Moreover, if yet another judge rules in our favor it would seem astoundingly stupid for the SB to appeal that decision. So maybe Judge Toth excusing himself will end up saving us having to continue this at the appellate level.

The main down side is that it will probably take another month or more to get a new judge appointed and then maybe 2 - 3 months more to get a decision. Our attorney is more optimistic but our experience to date convinces us that even the 3-4 month projection is probably optimistic.

While Judge Toth disappointed us by withdrawing from our case, He remains our HERO! In our greatest time of need (May 1998) he made room on his extremely busy docket to hear our case and to issue an injunction reversing the mindless wrong perpetrated by the Lewis-Palmer School Board. For that we will for ever be grateful!

YOU ARE A GOOD MAN JUDGE TOTH!

Meanwhile, the school district continues to refuse to begin the review/revision process for any of the Zero Tolerance school policies until this litigation is over. To us, this seems spiteful. Any subsequent action on the part of the SB to review and revise the policies at issue in our case would be inadmissible as evidence supporting our argument. That is, it has no bearing on what happened on April 6, 1998 in a motel room in Greeley, Colorado. The SB knows this, or should know this, nonetheless they stubbornly refuse to start the review process.

As of the first part of April of this school year they had expelled an additional 12 students for possession or use of alcohol or drugs. These kids may have all deserved expulsion. But we contend that the law requires a case-by-case consideration, not a mindless, automatic expulsion that fails to consider mitigating circumstances and/or the seriousness of the offense etc.

The real reasons the SB refuses to start the review process are politics and ego. They are worried initiating the review process will be interpreted by their extremist supporters as a sign of weakness. It is unfortunate they cannot be a little more mature and enlightened for the sake of the community. Nothing has to change right away, lets just start the discussion!