Appeals Court Signals Remand of Petrilli Case

School District Attorney Argues

Plaintiffs should Sue School Councils

Rather than Superintendents

in School-based

Racial Discrimination Claims

Ruling Expected in Mid march

During Oral Argument before the Kentucky Court of Appeals today, two judges openly and repeatedly expressed doubts about Fayette County Circuit Court Judge James Ishmael’s threshold instruction to the jury in Petrilli v Silberman.

In deliberation during the trial, jurors were only allowed to consider whether they thought former Booker T Washington Principal Peggy Petrilli had resigned voluntarily. The jury made their decision while looking at a handwritten resignation letter from Petrilli that read, in its entirety, “I hereby resign my position in the Fayette County Schools” with no effective date.

None of the other issues related to civil rights, retaliation, or whistleblower claims were considered by the jury since they found her resignation to be voluntary.

That result undermined J Dale Golden’s constructive discharge claim and exonerated Fayette County Schools Superintendent Stu Silberman and the Fayette County Board of Education.

Responding to an argument from Golden, Judge Kelly Thompson said, “I don’t agree with that threshold instruction either…” Later during John McNeill’s argument, Judge Glenn Acree said, “I, too, have a problem with this instruction…I’m not sure a jury understands [everything that goes into making a resignation] voluntary.”

McNeill argued that the superintendent and board weren’t guilty of anything, that the jury instruction was proper because it contained the word “voluntary,” and that Golden’s assertion of constructive discharge was made “without evidence.”

Judge James Lambert made no specific assertions during questioning but only two judges are needed to prevail on any particular point of law.

The only clue about the court's leaning on the central issue of whether Petrilli voluntarily resigned came from Judge Acree who said at one point, “It sounds like she didn’t want to leave.”

I'm no attorney but it sounds like this case may be headed back to Fayette County. But we won’t know for sure until sometime in mid March. A ruling is expected in 30 to 45 days.

KSN&C Backstory here

Each side was given 15 minutes to argue points of law and procedures before the court. Golden, representing Appellant Peggy Petrilli, chose to argue for 10-minutes and reserve 5-minutes for rebuttal. John McNeill, representing Stu Silberman and the Board of Education used all 15-minutes for argument – thus allowing Golden to speak first and last.

Most of the court’s attention was on the threshold jury instruction, and the question of whether Kentucky’s school council laws have the effect of insulating superintendents and school boards from discrimination claims.

What did the school board do wrong? one judge asked. You tell us about the Clarks and Ms Berry but what about the board?

“If there is a racial discrimination claim, who would you sue?” Acree asked repeatedly. McNeill opined that one must sue individual school council members. Golden argued that it was appropriate to sue the superintendent who is ultimately in charge of everything.

The district filed a Cross Appeal claiming that Judge Ishmael should have issued a directed verdict on all of Petrilli’s claims because they all lacked evidence. During a pretrial hearing, Judge James Ishmael had rejected the district's request for summary judgment saying,

"Right now, I’m not comfortable that the facts are so undisputed, that I feel comfortable making a ruling as a matter of law."

Golden argued that all of Petrilli’s other claims should have survived any resignation. For example, if a woman is raped at work, she does not have to keep working there to have a case, Golden said.

From Twitter: (READ FROM THE BOTTOM UP.)

Reday000 Adjourned. Court indicates it will respond in 30 to 45 days.
Reday000 when asked...says Buddy Clark was disbarred in Chicago.
Reday000 Golden: Voluntary was not defined. Threshhold question was inappropriate.
Reday000 Golden rebuttal begins. Thompson demures on sanction question.
Reday000 McNeill denies sanctionable conduct.
Reday000 McNeill defending jury instruction because it contained the word voluntary.
Reday000 Acree: I, too, have a problem with this instruction...not sure jury understands what voluntary means...
Reday000 Acree: If there was a racial discrimination claim, who would you sue?
Reday000 District filed cross appeal saying there should have been a directed verdict on all of Petrill's claims.
Reday000 Acree: "It sounds like she didn't want to leave."
Reday000 McNeill says constructive discharge claim was without evidence.
Reday000 McNeill is up.
Reday000 Golden: "This was a hatchet job."
Reday000 Golden goes after McNeill's conduct during trial.
Reday000 Golden argues whistleblower & civil rights claims should survive any resignation.
Reday000 Brenda Allen is in attendance.
Reday000 ...what did the school board do?
Reday000 Thompson: "I don't agree with that threshhold instruction either. That's not my problem...
Reday000 Each side gets 15 minutes. Golden goes first.
Reday000 Lambert presiding. Welcomes and introduces.

An Imaginary Hurley-Richards Defense

As KSN&C readers know, I'm not an attorney, so take my ramblings with a grain of salt. But I've been trying to imagine the defense attorney JoEllen McComb might use in an attempt to derail the FCPS appeal of Ernesto Scorsone's circuit court ruling in the Hurley-Richards case. (I'm seeking the actual brief, but it will be next week at the earliest before I can see it.)

Bob Chenoweth will argue for the district that the court is bound by KRS 13B.150(2) and that the court cannot substitute its judgement for that of the Tribunal when it comes to the weight of evidence.

13B.150 Conduct of judicial review.
(1) Review of a final order shall be conducted by the court without a jury and shall be confined to the record, unless there is fraud or misconduct involving a party engaged in administration of this chapter. The court, upon request, may hear oral argument and receive written briefs.
(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.

OK. That seems very straightforward. How can the district lose? Scorsone appears to have done a little evidence weighing himself in determining that the Tribunal's conclusions were "without support of substantial evidence..." The word "substantial" would certainly seem to indicate a weighing of the evidence occurred.

But there are lots of laws and some are higher than others. I wonder if McComb will make a constitutional claim on Hurley-Richards' behalf.

Would granting the district's claim constitute an

unconstitutional breach of the separation of powers?

Here's my imaginary defense:

The Kentucky Constitution is particularly strong on the separation of powers. Authored by a guy named Thomas Jefferson, our Constitutional provisions related to the separation of powers contain explicit provisions which mandate a separation among the three branches of government. At Sec 27:

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

That's the part everyone remembers because David Williams and other politicians have made outrageous claims in recent years, in an attempt to extend that separation into more power for the legislature (...or was it just Republicans?).

But there's a second part to the provision at Sec 28:

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

So my question is: By what right does the legislature constrain the manner in which the courts consider evidence? The power to try cases by hearing evidence and reviewing governmental processes would seem to belong exclusively to the judiciary.

It seems to me that the Kentucky Court of Appeals could choose to reject as improper the limitations placed on the court in KRS 13B.150(2) - a violation of the separtation of powers doctrine - and uphold the lower court ruling.

In LRC v Brown (Ky.) 664 S. W. 2d 907, 912 (1984) the Kentucky Supreme Court declared that the separation of powers doctrine must be "srictly construed."

In Rose v Council for Better Education (Ky.) 790 S.W. 2d. 186, 60 Ed Law Rep. 1289 (1989) that same court reiterated that "the power to legislate belongs to the General Assembly, and the power to adjudicate belongs to the judiciary. It is our goal to honor both the letter and the spirit of that constitutional mandate."

Just as the court is constrained from dictating to the legislature how it goes about its business, the legislature is constrained from dictating to the judiciary how judges must adjudicate.

Did I mention that I'm not an attorney?

Oh, and one more thing. The language in KRS 13B.150(2) says the court can "remand the case for further proceedings..." So, one supposes that if the district wins its appeal, the case would return to the circuit court for final disposition.