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Don Awerkamp, Dr. Kay's lawyer, motions for revision of a previous court order in light of a recent Arizona Supreme Court decision
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Quick background: The Oct. 4 Arizona Supreme Court decision (which you can read in the file called "Arizona State Board of Regents v. Arizona State Personnel Board CV-98-0237-PR OCT 4 1999" on their Internet site) applies to all actions taken in the case of
Marguerite Kay, because her case is still open
before the courts. It implies that the actions of the CAFT panel were
all illegal, since they did not afford Dr. Kay the protections granted
by the Arizona Administrative Procedures Act, namely the right to have a
lawyer represent her and the right to supoena witnesses and documents.
This would nullify all so called findings of scientific misconduct.
October, 1999
The Law Firm Of
RAVEN & KIRSCHNER, P.C.
POST OFFICE BOX 3017
TUCSON, AZ 85702-3017
(520) 628-8700
DON AWERKAMP
State Bar No. 007572
Pima County No. 2144
Attorneys for Plaintiffs
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
MARGUERITE KAY, M.D. NO. C-328309
Plaintiff,
vs.
STATE OF ARIZONA BOARD
OF REGENTS,
Defendant.
MOTION FOR REVISION OF COURT ORDER AND FOR ADDITIONAL ATTORNEY FEES
Judge Villarreal - Div. IV
Plaintiff Marguerite Kay, pursuant to Rule 54 (b) of the
Arizona Rules of Civil Procedure and Rule IV of the Arizona
Superior Court Uniform Rules of Civil Procedure hereby moves for
revision pages 11, 12, 17 and 18 of the Court's order dated April
30, 1999, and additional attorney fees. In light of the Arizona
Supreme Court's decision in Arizona State Board of Regents v.
Arizona State Personnel Board, No. CV-98-0237-PR (decided October
4, 1999), the Court should revise its order to find Doctor Kay is
entitled to judgment as a matter of law that Defendant violated
Plaintiff's statutory rights under A.R.S. 41-1062 when her
attorney was not allowed to actively participate in the hearing
that resulted in her termination and Defendant should be ordered
to reinstate her in her position immediately with full back pay
and benefits. The reasons for this Motion are set forth in the
Memorandum of Points and authorities which follows.
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF FACTS
The facts are undisputed. Plaintiff Marguerite Kay was not
allowed to have her attorney speak for her at the administrative
hearing which resulted in her termination and which is the
subject of this judicial review proceeding. Doctor Kay claimed
that this violated her statutory rights under A.R.S. 41-1062 to
be represented by counsel.
Defendant relied on Arizona State Board of Regents v.
Arizona State Personnel Board, 191 Ariz. 160, 953 P.2d 904 (App.
1996), to argue that it did not violate the provisions of A.R.S.
41-1062 when Doctor Kay's attorney was not allowed to actively
participate in the hearing that resulted in her termination.
This Court relied upon that same case to grant Defendant judgment
as a matter of law on that claim.
As Doctor Kay has repeatedly pointed out, the Arizona
Supreme Court granted review of the Court of Appeals decision in
Arizona State Board of Regents v. Arizona State Personnel Board.
On October 4, 1999, Arizona Supreme Court issued its decision,
vacating the opinion of the Court of Appeals.
II. STATEMENT OF LAW
The Arizona Supreme Court, in reversing the Court of
Appeals, has held that the Board of Regents cannot by its rules
take away the right of persons such as Doctor Kay to be
represented by counsel in the administrative hearings such as the
hearing of the Committee on Academic Freedom and Tenure which
resulted in her termination.
We granted review to decide whether the
Administrative Procedure Act allows an agency to exempt
itself from the rights to counsel and subpoena
contained in A.R.S. 41-1062 (1992). We hold that it
does not.
Arizona State Board of Regents v. Arizona State Personnel
Board, No. CV-98-0237-PR, page 2, (decided October 4, 1999). The
Supreme Court explained:
Administrative agencies have no common law or
inherent powers their powers are limited by their
enabling legislation. Kendal v. Malcolm, 98 Ariz. 329,
334, 404 P.2d 414, 417 (1965). Thus, if an agency rule
conflicts with a statute, the rule must yield.
Id., page 5. The Supreme Court explained further:
Yet under A.R.S. 41-1002(C), while an agency may
grant rights in addition to those provided by the
Administrative Procedure Act, it may not diminish
rights conferred by any "provision of law," which
includes the Administrative Procedure Act.
Id., page 7-8.
The Supreme Court also answered Defendant's argument that
the right to be represented by counsel does not include the right
to have one's attorney speak on one's behalf at the hearing.
We hold that because the words "[u]nless otherwise
provided by law" in 41-1062(A) do not include agency
rules, the University's grievance procedures with
respect to counsel and subpoena must yield to the right
to counsel, including the right to cross-examine, and
the right to subpoena contained in A.R.S. 41-1062(A).
The language of 41-1062 that refers not only to
representation but also to the right to cross-examine
means that a lawyer acting on behalf of a party must be
able to participate fully at the hearing.
Id., page 8.
Doctor Kay's termination was based upon the administrative
hearing at which she was denied the right to be represented by
counsel in violation of A.R.S. 41-1062(A). The hearing and the
termination which resulted from it are therefore void and can be
given no effect. Doctor Kay should therefore be immediately
reinstated with back pay. If Doctor Kay had only been denied
post termination procedures, remand for those procedures without
reinstatement might be all that is required under Zavala v.
Arizona State Personnel Board, 159 Ariz. 766 P.2d 608 (App.
1987)(citing City of Tucson v. Mills, 114 Ariz. 107, 110, 559
P.2d 663, 666 (App. 1976). Zavala and Mills both concerned post
deprivation procedures which were not properly conducted. It is
clear that Zavala and Mills sought to restore the situation to
where it was before the violation occurred, namely post
deprivation.
It would be a fundamental violation of due process to void
a procedure as unlawful and yet allow the deprivation based upon
that unlawful procedure to stand. This Court should Order
Defendant to immediately reinstate Doctor Kay in her position and
pay her the back pay and benefits which were taken from her
because of the illegally conducted hearing.
Doctor Kay should also be awarded an additional $885 in
attorney fees for the 4.6 additional hours her attorney has spent
on this Motion. Indeed, the decision of the Supreme Court shows
the reasonableness of the time to which Defendant objected spent
by Doctor Kay's attorney in furtherance of her case by his
assisting those writing the petitioner's and amicus briefs in the
Supreme Court.
III. CONCLUSION
The Court should revise its order to find Doctor Kay is
entitled to judgment as a matter of law that Defendant violated
Plaintiff's statutory rights under A.R.S. 41-1062 when her
attorney was not allowed to actively participate in the hearing
that resulted in her termination and Defendant should be ordered
to reinstate her in her position immediately with full back pay
and benefits. The Court should also award Doctor Kay an
additional $885 for attorney fees.
Respectfully submitted this __ day of October, 1999.
RAVEN & KIRSCHNER, P.C.
DON AWERKAMP
Attorney for Plaintiff
Copy of the foregoing
with authority attached
hand-delivered this __
day of October, 1999, to:
Honorable Stephen C. Villarreal
Pima County Superior Court
110 W. Congress Street
Tucson, Arizona 85701
and mailed this __
day of October, 1999, to:
Jane L. Eikleberry
WATERFALL, ECONOMIDIS, CALDWELL,
HANSHAW & VILLAMANA, P.C.
5210 E. Williams Circle, 8th Fl.
Tucson, Arizona 85711
Attorney for Defendant
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