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Second ruling filed by Arizona Superior Court in Dr. Kay's case (before AZ Supreme Court decision)
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Quick background: This ruling filed in August is the second ruling by a Superior Court Judge in Dr. Kay's case.
August 23, 1999
ARIZONA SUPERIOR COURT, PIMA COUNTY
FILED
PATRClA A. NQLAND
CLERK, SUPERIOR COURT
August 23, 1999 (10:13 a.m.)
By: Cathy Estes
CASE NO. C-328309
Marguerite Kay, M.D., Plaintiff (Don Awerkamp Plaintiff's Attorney)
vs.
STATE OF ARIZONA BOARD OF REGENTS, Defendant.
Jane Eikleberry and
Judith Leonard
Defendant's Attorneys
MINUTE ENTRY
UNDER ADVISEMENT RULING RE DEFENDANT'S (University 92s) REQUEST FOR
DIRECTION:
Defendant is requesting the Court to give direction to
the
attorneys so
that any administrative procedures are held in compliance with the Court's
Order. It wants the Court to give guidance in setting forth specific
ground
rules if the conciliation/mediation process is unsuccessful. Defendant
(University) contends that under Rule 16(a)(10) and (18) of the Arizona
Rules
of Civil Procedure, the Court has authority to institute appropriate
measures
to limit the CAFT proceedings to avoid entirely retrying the scientific
misconduct case which it contends is not envisioned by the Court's Order.
Specifically, Defendant (University) wants the Court to issue orders
regarding
limitations on the types of evidence that can be submitted at the hearing,
the
number of witnesses who would be allowed to testify, as well as the subject
matter of their testimony, the number of pages of exhibits that may be
submitted, and the amount of time allowed to present evidence at the hearing
and so forth.
Plaintiff (Marguerite Kay) opposes the request and asserts
that in an
administrative review such as this one, the Court lacks jurisdiction to
manage
administrative proceedings which have not yet been held. Plaintiff contends
that the Court's power is limited to a review of administrative proceedings
and
relates only to the issues open to review under the Administrative Review
Act. 20
The Court finds Plaintiff's (Marguerite Kay 92s) position
persuasive. After
reviewing the pleadings and the April 30 1999 Minute Entry, the Court
concludes
that it lacks the authority to grant Defendant's (University's) request.
With respect to the scientific misconduct hearing, the Court
found that
there was no statutory or constitutional right to counsel and that Dr. Kay
had
a fair opportunity to challenge the allegations made against her. See April
30,
1999 Minute Entry at l5-l7. The Order did not decide whether substantial
evidence existed to terminate Plaintiff for scientific misconduct because it
found that Defendant failed to comply with its dismissal procedures: Id at
9.
If the University intends to dismiss Plaintiff, it must provide
her
with a
sufficient written notice of dismissal. Id at 7-8. If the notice is based
on the
findings of the scientific misconduct hearing, Plaintiff must be given a
termination hearing where she can be given a fair opportunity to present
evidence and argue that termination is not an appropriate sanction.
Defendant
is correct, the Court order did not envision a second scientific misconduct
hearing. It did envision, however, a formal termination hearing where
Plaintiff
would be afforded a fair and adequate opportunity to defend her job. While
the
Court provided examples of the types of evidence Plaintiff could proffer,
they
were for illustrative purposes only. Id at 9. The scope of that defense
will be
up to her. Plaintiff must then be afforded a right of appeal of any
adverse
decision to the Board of Regents.
This Court's review of those proceedings will be limited to
whether there
was substantial evidence to support the decision based on the complete
administrative record. Consequently, the Court declines Defendant's
suggestion
to micro-manage the administrative proceedings below.
IT IS ORDERED that Defendant's Motion for Direction is DENIED;
IT IS FURTHR ORDERED that Plaintiff's request for an additional $526.50 for
attorney 92s fees incurred in responding to the Defendent 92s motion is
GRANTED.
HON. STEPHEN C. VILLARREAL
cc. Hon. Stephen C. Villarreal
Civil Calendaring
Under Advisement Clerk
Donald T Awerkamp, Esq.
Lane L Eikleberry, Esq.
Judith Leonard, Esq. University of Arizona, Administration Bldg., Room 103,
P.O. Box 210066
Tucson, AZ 85721-0066
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