Letter from Dr. Kay's Lawyer to UofA

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CAFT Hearing, March 30 - April 4, 1998

Dear Ms. Eikleberry:

This responds to your March 23, 1998, letter requesting that we provide sufficient additional sets of documents which we may use as exhibits for distribution to each member of the panel prior to the hearing, and comments upon the letter of the same date from Dr. Cetas to Dr. Glittenberg complaining about our voluntary document production and asserting that I have somehow wrongfully created "confusion" respecting the captioned proceedings.

I turn first to your request that we provide sufficient copies of all the documents we have produced so that the panel members may ". . . have an opportunity to review [them] before the hearing."

Please be advised that we consider it improper in the extreme for any panel member -let alone all of them -to review evidence outside the confines of the formal hearing process. Such a procedure totally deprives both parties of the right to object to improper matter (such as the inclusion of highly prejudicial materials in the CAFT documents . . .) and to fully and timely seek the exclusion of such materials before it is submitted to, and considered by, the appointed fact finders. Such ex parte communication (that is, unilateral communication outside the formal hearing) is yet another violation of well-established principles of administrative due process by CAFT. (See, Gillett v. Arizona Corporation Commission, 121 Ariz. 541, 592 P.2d 375 (Ct.App. 1979, citing Morgan v. United States, 304 U.S.1 (1938). See, also, Corbin v. Arizona Corporation Commission, 143 Ariz. 219, 693 P.2d 362 (Ct.App. 1984).)

Wholly aside from the impropriety of such communications, the cost to Dr. Kay of these, and the predecessor, proceedings has been, and will continue to be, extremely burdensome, as I'm sure you are well aware. Since CAFT has persisted in changing its position, altering its charges, raising new and different issues, and now plans to call something on the order of 40 witnesses, it is impossible for us to know, at this juncture, precisely which exhibits we may use and which witnesses we may call during the course of the hearing, if and when it does go forward. This problem is being exacerbated by the University's refusal to allow active participation by counsel for any of the involved entities and individuals to structure and coordinate the proceedings in an orderly fashion.. . .

I also remain skeptical that materials that we have provided in the past, in good faith and at the express request of CAFT, have actually been timely distributed to and considered by members of prior panels. I have yet to receive unambiguous assurances to that effect. . . .

First, Dr. Cetas apparently does not appreciate that our recent production was made voluntarily, in good faith, in an attempt to provide everyone on the University's side of this dispute (not the panel members) with some notion of the documentary evidence from which we currently expect to choose exhibits for eventual use in the course of the hearing. We were not obliged to do so, much less are we required to prognosticate what the forty witnesses listed by CAFT may testify to, what new and different charges CAFT may conjure up to add to its ever-changing kaleidoscope of allegations against Dr. Kay, or what evidence we will choose to meet the University's case-in-chief. Our document production was most assuredly not for the purpose of giving the panel an advance look at evidence which might or might not be competent and admissible or which might or might not be used in the course of the hearing. As we have already stated, in our view providing the panel [CAFT acting as triers of fact] with a pre-hearing "opportunity to familiarize themselves with the documents that are important to the presentation of our [CAFT acting as prosecutor] position," or, for that matter, documents we view as important to Dr. Kay's defense, would be improper in the extreme.

. . . Moreover, in thirty years of litigation and administrative practice I have never encountered a requirement that exhibits identified prior to the commencement of a hearing be categorized in the fashion demanded by Dr. Cetas. His threats to seek exclusion of materials not organized in keeping with his view of how things should be done are thus both unwarranted and improper.

Third, for reasons stated in earlier correspondence, the suggestion by Dr. Cetas that the presentations by either side will be subjected to arbitrary time limits is totally improper, as is his ex parte communication with Dr. Glittenberg, the chair of the panel he chose (undoubtedly in onsultation with Dr. Cusanovich) to try this matter, arguing his position as prosecutor.

Finally, I object most vehemently to Dr. Cetas' perjorative characterization of my efforts to bring some semblance of order and due process to these proceedings, and to preserve and enforce the Constitutional and statutory rights of my client, as creating confusion. Any confusion which currently exists is the direct result of the inexplicable refusal of CAFT and the University to follow prescribed procedures for conducting proceedings relating to charges of scientific misconduct.

As counsel to Dr. Glittenberg and her panel, I request that you advise her in the strongest possible terms respecting the impropriety both of the ex parte presentation to, and consideration by the panel of, any material bearing on the dispute outside the formal hearing process and the reasons we are not prepared to fund the preparation of additional copies of the documents we produced.

Very truly yours,

Robert K. Wrede, of
PARKER, MILLIKEN, CLARK, O'HARA & SAMUELIAN

RKW/vab
cc: Thomas M. Thompson, Esq.