Blog 7

Monday

            After discovering that the sponsor of the student speech Senate Bill in 1999--Arizona State Senator Lopez--was retired, I drafted and sent an email to Senator Kelli Ward, the current Chairperson of the Education Committee in the Arizona State Senate, inquiring about her position on reintroducing a similar bill.

Tuesday

            I attended a court-ordered settlement conference presided over by a Judge Pro Tempore in his office. A Judge Pro Tempore is a temporarily appointed judge, who is a lawyer and not yet a judge. First, the Judge Pro Tempore discussed settlement behind closed doors with the plaintiff. Then, he stated that the plaintiff refused to budge from her original memorandum and she refused to quantify her damages with a dollar amount.

            The plaintiff claimed that she would fight this case as hard as she could because of the original plaintiff, who had since past away. The plaintiff was the god-daughter of the original plaintiff, a man who survived Pol Pot's genocide, so his attitude was very mistrusting. He filed the lawsuit against the auto-repair shop, which failed to fix the original plaintiff's car. However, the original plaintiff had withheld the necessary funds from the shop because he mistrusted them. Both the Judge Pro Tempore and my father acknowledged that the facts of the case were not in favor of the plaintiff.

            The Judge Pro Tempore left the room once again to confer privately with the plaintiff. After he returned, the plaintiff abruptly left the room and exited the office. The judge then explained how the plaintiff did not know her damages and was unable to give a dollar amount to settle the case.

            My father decided that he would depose the plaintiff and move for a summary judgment in an attempt to close the case.

Wednesday

            We visited the Old Courthouse in Phoenix once again for a minor's settlement. The plaintiff's attorney had informed my father the night before the hearing that the mother of the child may not be responsible enough to hold the minor's money. My father met with the attorney prior to the hearing to address this situation, but they decided that the mother would be an adequate acceptor of the settlement after explaining to her the rules regarding that the minor's settlement is not for her personal use, but only could be spent for and on behalf of the minor (like braces or a school field trip). Because the settlement amount was over the $10,000 statutory limit, we argued that because the "net" settlement was less than $10,000, the statute still applied. Fortunately, this issue did not hold up the settlement. While the Judge also raised a notice issue, as it related to the minor's father, the judge decided to not let that issue prevent the approval of the settlement.

Research

            This week I concentrated on analyzing law review articles discussing the detrimental effects of Hazelwood's ambiguous standard of review--both on student speech and lower court decisions. Three articles in particular, K.R. Martin's Demoted to High School: Are College Students' Free Speech Rights the Same as Those of High School Students?,45 B.C.L. Rev. 173 (2003), L.E. Levine's and Catherine A. Reardon's The Resurgence of Censorship in the Twentieth Century?: The Ninth Circuit's Response in Planned Parenthood v. Clark County School District, Journal of Civil Rights and Economic Development: Vol. 7: Iss. 2, Article 10 (2012), and Evan Mayor's The "Bong Hits" Case and Viewpoint Discrimination: A State Law Answer to Protecting Unpopular Student Viewpoints The George Washington Law Review Vol. 77: No. 3 (April 2009), provided compelling arguments. The first two articles examined the Supreme Court's public forum analysis and regulation of school-sponsored speech in student expression cases before and after Hazelwood to assert that Hazelwood's absence of a definitive statement on viewpoint neutrality in regulating the content of student speech has spawned a circuit split, which must be remedied either by another Supreme Court ruling or school policy. Likewise, Mayor's article elaborated on the Supreme Court's failure to address the disparity in Lower Court rulings on viewpoint discrimination in the Morse case, but he advocated for a state statute remedy, based upon  the Supreme Court's reluctance to tackle the issue and the vulnerability of school policies to lower court interpretations.

            I've included a synopsis of the evolution of case law regarding student speech to emphasize the dangerous inadequacy of Hazelwood's standard in an attempt to argue for a return to the more practical Tinker standard.

Here's a quick sketch of legal precedent:

            According to Tinker, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court also recognized in Bethel School District v. Fraser that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Thus, Fraser held that schools may sanction "lewd and indecent speech" that is "sexual in nature," applying Hazelwood, which stated that the rights of students "must be applied in light of the special characteristics of the school environment." Relying on these cases, the U.S. Supreme Court in Morse et. al v. Frederick carved out another exception to free speech by stating that school officials may take action to prevent student speech that can reasonably be assumed to promote illegal drug use, even if the speech did not disrupt school under Tinker.  

            To read about the cases in more detail, (or if you are trying to fall asleep) continue on:

Tinker v. Des Moines Independent Community School District

            The U.S. Supreme Court in 1969 affirmed the First Amendment rights of public school students, striking a balance between student expression and school authority with its "material and substantial disruption test." Requiring schools to offer more than a vague fear that student speech might disrupt order in school, the Court mandated that schools may censor content only if student expression will "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or invade the privacy rights of other students. Of course, student speech that is unprotected by the constitution can always be censored--such as obscenity, libel, false advertising, and incitement of a clear and present danger. In Tinker, students donned black armbands to school as an anti-Vietnam War protest and were suspended. The court held that the school violated the students' First Amendment rights, noting that since the school only punished one specific symbol--the arm bands--while allowing other symbols--political campaign buttons--the school's censorship amounted to unconstitutional viewpoint discrimination, which is not permitted in any forum--public, limited, public, or non-public.

Bethel School District No. 403 v. Fraser

            In Fraser in 1986, Chief Justice Warren Burger differentiated the sexually suggestive speech of a high school student at a school assembly from Tinker's armband connoting a political viewpoint. Upholding the student suspension, the court deferred to the school's decision regarding the appropriateness of student expression, without demanding proof of a "material and substantial disruption" under Tinker. Consequently, viewpoint discrimination seemed to be tolerated by the Court, a significant shift in First Amendment jurisprudence.

Hazelwood School District v. Kuhlmeier

            The Supreme Court created a new standard of review in Hazelwood in 1988 that continues to cast a shadow on student free expression today. In the case itself, a school principal censored controversial articles about teenage pregnancy and divorce written by the staff of the high school newspaper. In 1985, the district court of Missouri ruled in favor of the principal, stating that high school newspapers are not a public forum and that the topics were not appropriate for the high school setting. However, in 1986, the decision was reversed by the U.S. Court of Appeals for the Eighth Circuit, finding the school newspaper to be a public forum and applying the "material and substantial disruption test" standard of Tinker to the case, which led the court to believe that the students' First Amendment free speech rights had been violated because there was no proof that these articles would create a disturbance to the school environment.

            However, the U.S. Supreme Court reversed the circuit court's decision and created a new standard for the review of student publications in high school. The rulings of Tinker and Bethel School District No. 403 v. Fraser confirmed that students have their First Amendment rights to free speech, but some elements of free speech can be restricted inside a school as it may conflict with the school's educational purpose. The court used a three-step process to its ruling: the type of forum where the speech was created (in a journalism class), the nature of the speech in the disputed articles, and the review of the principal's censorship.

Public Forum Analysis

            The more public the forum, the higher the scrutiny of speech regulations. The three types of public fora characterized by the Supreme Court are the traditional public forum enjoying robust First Amendment protections (such as a public park), the limited public forum, in which public speech is permitted temporarily, and the nonpublic forum (government property where free speech may be more restricted). Both traditional public forums and limited public forums receive strict scrutiny of content-based regulations by the court. Under the strict scrutiny standard, the state must have a "compelling state interest" and the regulation must be "narrowly tailored." Nonetheless, even the seemingly sacrosanct public forum of a public street is subject to speech regulations based on time, place, and manner. For example, a planned protest march must apply for a permit from the city so that the city can provide adequate police protection and regulate traffic safely. 

            In a non-public forum, courts apply a lesser standard of review: the regulation of speech must be reasonable and viewpoint neutral. In Hazelwood, the Court held that the student newspaper was a non-public forum on the grounds that the school exercised control over the publication, which was produced as part of the journalism class. The Court reasoned that the school's intent was for the newspaper to be a "supervised learning experience for journalism students," not an indiscriminate use of a public forum. It deemed the school's censorship reasonable because it was "school-sponsored speech" bearing the "imprimatur" of the school: the school's name was on the newspaper and school funds were used to produce the paper. Therefore, the newspaper was not personal student expression, but school-sponsored speech, supporting the court's substantial deference to the school's restrictions on style and content, as long as they are "reasonably related to legitimate pedagogical concerns." The Court esteemed the school's actions reasonable in light of the "legitimate pedagogical" goal of protecting the specific students mentioned in the article discussing pregnancy and freshmen and possibly their younger siblings at home. Because the Court did not expressly limit this ruling to high school students, many lower courts have extended it even to university publications, such as Hosty v. Carter. 

            Brennan's dissent asserted that the Hazelwood school would have failed Tinker's material and substantial disruption test because the students' articles did not disrupt school functioning or invade the rights of others--for example, it did not cause a walk-out or riot. Brennan believed that the Tinker standard was a fair balance between school and student interests and did not need to be revised in Hazelwood. In fact, Brennan asserted that the Tinker standard should remain, even if student speech is not school-sponsored.

Post-Hazelwood Federal Court Cases      

 

            Nonpublic forums were unable to have speech suppressed by the government based on the viewpoint of the speaker prior to Hazelwood. In the aftermath of Hazelwood, the circuit courts have been split concerning the constitutionality of viewpoint discrimination in student speech, partly because Hazelwood was silent on the issue.  The First, Third, and Tenth Circuits have taken a stance permitting viewpoint discrimination by public schools, interpreting Fraser broadly as justification for justifying offensive speech. On the contrary, the Ninth and Eleventh Circuits ruled that viewpoint discrimination is impermissible in any type of government forum. The Tenth Circuit Court of Appeals decision in Fleming v. Jefferson County School District R-1 exemplified this circuit split. Stressing Hazelwood's finding that schools can regulate speech bearing the school's imprimatur, Fleming ruled that Hazelwood does not require viewpoint neutrality.   

Planned Parenthood v. Clark County School District           

            This case highlights how Hazelwood's vague, loose standard has been inconsistently applied. It is evidence that the First Amendment needs a stronger constitutional bulwark to protect student speech.

             In 1989, the Ninth Circuit held that the student publication at issue was not a public forum. Planned Parenthood sued the school district claiming violations of free speech because of the school's refusal to publish their advertisement in the student newspaper. However, since they were not students, the problem did not deal with students' First Amendment rights.

            First, the court defined what type of forum existed, and then it decided which level of scrutiny to apply to analyze if the First Amendment was violated. The Planned Parenthood Court cited the public forum test expressed in Perry Education Association v. Perry Local Educator's Association, which held that schools could become public forums if policies or practices exercised by school officials opened these facilities "for indiscriminate use by the general public." To decide if the school intended the newspaper to be a public forum, the court looked for written policies. Thus, the Court concluded that there was no intent to open a public forum. Citing Cornelius v. NAACP Legal Defense and Education Fund, Inc. 473 U.S. 788 (1985), the Court approved of the school's pedagogical interest in avoiding controversy as reasonable in a non-public forum, such as this student newspaper. However, if the Court had found the paper to be a public forum, this rationale would not have been reasonable.

            Lana E. Levine and Catherine Reardon posit that the Ninth Circuit exhibited the following three flaws in its decision: assuming a policy made by officials to be the only factor in establishing a public forum, applying the Hazelwood public forum test incorrectly, and failing to recognize the proper forum as the advertising space, not the student newspaper itself. If the court investigated further beyond the written rules of the school, it would have discovered  the intent to make a public or limited public forum, since all advertisements--including those from casinos, bars, medical clinics, political campaigns, and churches--were accepted, except those from Planned Parenthood.

Morse et al. v. Frederick

            Morse, a high school principal, was alarmed when she saw students at a school-sponsored event roll out a banner with a message she regarded as an inappropriate promotion of illegal drug use--"Bongs Hits 4 Jesus." When she demanded that the students put away the banner, one student, Frederick, refused, resulting in his suspension and her confiscation of the banner. An Olympic Torch Relay was passing by the school on the day of the incident. Frederick later claimed that the sign was only nonsense; his only purpose was to get on television, not to promote illegal drug use. Since this transpired at a school-approved social event, Frederick's argument that this case is not a school-sponsored speech was immediately rejected by the Supreme Court.

            Frederick took the case to the federal district court, where the Juneau school board prevailed, drawing points from the Bethel School District No. 403 v. Fraser ruling. However, the Ninth Circuit reversed the district court's order, stating Fraser only applies to speech that is "sexual in nature." Thus, the Court applied Tinker and ruled that the banner did not cause a substantial disruption, and consequently Frederick's rights were violated.

            In 2006, Chief Justice Roberts delivered the majority opinion, which held that school officials did not violate the First Amendment by suspending a student for his speech. Reversing the Ninth Circuit decision, the Supreme Court resolved two issues: the First Amendment permits schools to prohibit students from promoting the use of illegal drugs at a school event and the Ninth Circuit strayed away from established standards of qualified immunity in holding that a principal was liable. Chief Justice Roberts found that the "special characteristics of the school environment" and the government's interest in drug prevention to be paramount concerns justifying censorship.

            In his dissent, Justice Stevens, joined by Justice Souter and Justice Ginsberg, found that "the First Amendment demands more, indeed, much more." Describing the banner as "nonsense," rather than advocacy of "illegal or harmful" conduct, Stevens disagrees with the majority's upholding of the school's decision to punish a student for "expressing a view with which it disagreed."  Moreover, Stevens takes the Court to task for neglecting to realize that the legalization of marijuana is a legitimate public policy issue and that "the Court's test invites stark viewpoint discrimination" (127 S.C.T. at 2645).

            In the post-Columbine shooting tragedy era of school violence, courts are likely to continue to be deferential to schools regulating student speech, adding support to the need for legislators to pass student-speech protective laws.

Blog 6

Blog 6

            This week's events--two conservatorship hearings and a deposition--reinforced the routine, everyday work of an attorney. In addition, I honed my interpretive and argumentative skills, while I continued researching for my SRP and for cases at my internship.

Monday

            Because today's hearing was rescheduled, I had time to research the latest examples of student  newspaper censorship on the Foundation for Individual Rights and Education and the Student Press Law Center websites.

Tuesday

            More research allowed me to narrow down the relevant Supreme Court case law on the First Amendment in public high schools--Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988), Morse et. al. v. Frederick (2007). Likewise, I studied precedent from the Ninth Circuit Court of Appeals, which includes Arizona, as well as 15 Federal Judicial districts (mostly Western States, Hawaii, Alaska, and Guam). The pertinent Ninth Circuit case is Planned Parenthood v. Clark County School District (1989), However, both Fraser and Morse are Ninth Circuit decisions that were overruled. The circuit court confusion in interpreting Hazelwood often produces speech-restrictive results. For example, the Tenth Circuit Court case of Fleming v. Jefferson County School District R1(2002), upheld viewpoint discrimination--a type of discrimination usually not even allowed in non-public forums. This case led me back to review once more the seminal public forum analysis Cornelius v. NAACP Leg. Def. Fund (1985). This research has cemented my opinion that Hazelwood's ambiguous standard for evaluating school censorship of student publications opened a Pandora's Box of infringement upon students' free speech, confirming Tinker's framework as the proper balancing of authority and expression.

Wednesday                                          

            At the Phoenix court house, we met with a minor's mother to prepare her for testimony before the judge in a minor's settlement. In this conservatorship hearing, the minor was only one month shy of 18. Everything went well. I realized that I am growing familiar with these routine processes. I've memorized the procedure and statements by now. More interesting, on a personal level, was meeting with the minor's attorney afterwards. He was in his twenties and had attended Dartmouth as an undergrad and then attended UA law school. He even interviews seniors who apply to Dartmouth. Although he loved his college experience, he returned to Arizona, where he was born and raised, because he wanted to avoid student debt. It was an enlightening perspective to consider as I hear results from out-of-state colleges.

            Later, I reissued my online survey to my targeted group of 83 faculty advisers for student publications in Arizona. Since I had only received 21 responses at this point, I attached a new cover letter explaining my need for a more accurate representation of respondents' experience with prior review and censorship. Gratifyingly, I immediately received two more; more dismayingly, I've only received a total of four more as of this writing. Nevertheless, the trend of the responses is strong and supports the anecdotal evidence that both faculty advisers and student editors practice self-censorship, arguably in light of the looming threat of prior review and restraint. Finally, I completed a detailed analysis of my survey results, using percentages to correlate relationships and establish trends.

Thursday

            Instead of attending legal proceedings or researching cases, today I practiced how to form a legal argument. My father, another attorney, and I engaged in a mock oral argument based on a dog-at-large statute case. Since this was my second time encountering this statute, I already understood about strict liability, but the facts in this case argued that three defendants were strictly liable. Thus, the issue was apportioning strict liability under the statute, rather than assessing the reasonableness of a party's actions under the common law. After reading an assessment of liability and damages, I disagreed with the conclusions and had to present my argument and recommendations. Interestingly, the second attorney had a completely contrary assessment of liability and damages. This lively debate highlighted how legal minds can differ and how interpretation is pivotal to apportionment of fault. No question of facts were being considered; we were preparing for a summary judgment based on the law.

Friday

            I was glad to conclude the week with a deposition. I look forward to depositions because the attorney must adapt his strategy to address the particular plaintiff being questioned. In this case, the plaintiff, a pharmacist, had both medical bills and wage loss claims based on a lower back injury from an automobile accident. Her car was rear-ended by the defendant's truck and propelled into a car in front of her, causing a chain reaction with three other cars. Because the defendant admitted liability, the issue concerned damages. The plaintiff's damages and wage loss claims were close to exhausting the defendant's insurance policy limit. Her persistent back pain is likely to continue in the future. The defendant's policy coverage was not large enough to fully compensate her injuries.

            Hearing her first statement--a lengthy, detailed list of her specific duties and tasks as a pharmaceutical manager--I knew instantly that my father would need to take a different strategy to accommodate this plaintiff. She further elaborated about her inability to perform everyday tasks at her job and at home. Moreover, inconclusive MRI reports failed to pinpoint a clear solution to her injury. Being sensitive and respectful to the plaintiff  during both the deposition and subsequent informal settlement conference, my father convinced the plaintiff to decide against pursuing the defendant's excess coverage. She accepted the defendant's offer of settlement and decided to pursue a claim on her own Underinsured Motorist Coverage (UIM).

            Before this case, I was not too familiar with either Underinsured Motorist Coverage or Uninsured Motorist Coverage, but now I realize the value of both. If you are hit by a driver who either lacks any automobile insurance or only possesses a policy limit lower than the dollar value of your damages from your injury, then you can make a claim with your own insurance company for the excess amount if you have Underinsured or Uninsured Motorist Coverage.

            Later that day, I returned to the dog-at-large case to continue polish my oral argument. 

Blog 5

            In this blog, I combined Spring Break and Week 5. Two of the days were the most intriguing so far during my internship: the accident scene investigation and the settlement negotiations.

Tuesday

            Today, the tables were turned; this time, we were representing the plaintiff when being deposed, rather than our usual position as a defense attorney asking the questions to the plaintiff. I attended the deposition of the female plaintiff, who we had previously interviewed in preparation of her deposition regarding her car accident. In my eyes, the plaintiff made a good witness, meaning that she persuasively presented her position in a credible manner.

            Discussions centered on damages: her injuries resulting from the accident. Before the accident, the plaintiff had some problems with her neck and hand, but she had fully recovered by the time of the accident. After the accident, the plaintiff developed problems with her shoulder, arm, and tingling in her thumb; her entire right arm hurt, preventing her from sleeping since she habitually slept on her right side. Being bounced from doctor to doctor and receiving a number of conflicting diagnoses, the plaintiff ultimately had carpel tunnel surgery on her right wrist. After that surgery, she lost her pain--an admission which elicited a laugh from the defense attorney and the court report when my father said, "That is a breath of fresh air" in this business, since plaintiffs rarely admit to full recovery.

            After the deposition, we began settlement negotiations and requested that the defense attorney contact my father to discuss the case before he prepared his report to the insurance company. Then, we met with the client to discuss the value of her claim and to agree upon strategy to attempt to resolve the case.

Thursday

            To prepare for our accident scene inspection, my father and I reviewed the plaintiff's notice of claim against our client, defendant Mesa Public Schools. The plaintiff, a ten-year-old student, alleged a serious fracture injury to his right lower leg. We reviewed medical records, bills, photos, and x-rays to prepare for the meeting with the client at the accident scene.

            At the elementary school, we met with the principal and two playground aides, and inspected the accident scene, the recess field where the student broke his leg while playing Capture the Flag. Mesa Public Schools' 3rd party administrator joined us, and we discussed developing a plan for further handling of the case for a meeting with the plaintiff's attorney. Surprisingly, my father and the administrator were unfamiliar with the rules of the game; I gave a quick rundown and the principal elaborated. The plaintiff had been in pursuit of another student carrying the flag; he alleged that he hit the fence and twisted his foot in a hole under the fence. However, the plaintiff's allegations would mean the plaintiff was chasing the boy past the halfway point, which is contrary to the traditional rules. Later, I researched the rules of Capture the Flag to confirm the general accepted practices of the game.

            During our inspection, school was in session; watching the little kids running around at recess reminded me of days long ago.

Wednesday

            I thoroughly enjoyed attending the today's events; I was fascinated by each party's posturing without being untruthful, but simultaneously not showing all their cards.

            Today started with preparing for the deposition of a plaintiff in a personal injury case involving two defendants, with my father representing one co-defendant. Both liability and damages were disputed. Adding more complexity, the plaintiff was the wife of a co-defendant, and obviously favorable to the co-defendant. Likewise, the co-defendant was favorable to the plaintiff on damages. Consequently, it was two against one on liability, two against one on damages; a real David and Goliath predicament, with my father as David.

            To compound the problem, my father's client failed to appear for his deposition--an unfavorable development. The client's absence essentially transformed the situation into two against zero. David lost his sling, but he still had his stone.

            My father did the best he could on cross-examination of the plaintiff and the co-defendant on liability and damages, but without his own client, his position seemed weak. My father and I consulted on how to deal with the situation, and he suggested an informal settlement conference. This is when things grew more interesting.

            We met with the co-defendant's attorney and the plaintiff's attorney to suggest the best plan for further handling, and it was agreed that every attorney would agree to recommend to their clients on what was a reasonable settlement of the case. Ultimately, they reached an agreement that everyone would agree on a recommended settlement on a dollar amount, with the two defendants sharing equally--50/50--on the settlement. Things then became more difficult.

            The plaintiff's attorney obtained authority for the agreed-upon the recommended dollar amount of settlement, and the co-defendant's attorney had authority to contribute matching money with my father's client. Unfortunately, my father was not able to obtain authority for matching money; his client's insurance adjuster only authorized a lesser amount. From that point, negotiations back and forth over what the plaintiff would accept and what the co-defendant would offer in non-matching funds resulted in an agreement in which the co-defendant agreed to pay 60 percent and my father's client agreed to pay 40 percent of the settlement.

            At the end of the day, I thought that the settlement negotiation tactics and strategies employed by all sides were some of the most appealing aspects of being a lawyer. 

Blog 4

            While I didn't put much mileage on my car this week, I managed to cover a lot of ground researching Arizona student publications and the Arizona legislative history of an attempt in 1999 to pass an anti-Hazelwood statute. By the close of the week, I advanced to the next stage in my Senior Research Project-- launching my survey and receiving responses from public high school journalism faculty advisers.

Monday

            Logging seemingly-endless hours of phone calls to individual public schools to retrieve email addresses for faculty advisers for yearbooks or newspapers brought me nearer to my goal of selecting a targeted group of 83 schools to survey out of the 385 public high schools in Arizona. Many schools do not produce a student newspaper or even a yearbook. Surprisingly, it's not always the smaller schools in more remote locations; for example, Saguaro and Coronado High Schools in the Scottsdale Unified School District do not have student newspapers. As expected, Maricopa County had the largest pool of public high schools with journalism programs, with Pima County second. More unexpectedly, Yuma County hosts a significant-for-its-size crop of student newspapers. A few schools even offered broadcast journalism on a school TV channel.

            In retrospect, canvassing the schools reinforced what I had been learning by driving around the state in prior weeks: I was brushing up on my geography of Arizona. Looking at various school websites imparted the flavor of the different regions of Arizona, We really are a diverse state: I couldn't reach schools in Flagstaff last Friday because they were closed due to snow, while I was sitting in 70 degree weather in Phoenix.  On a side note, Arizona suffers from an overpopulation of wildcats and bulldogs--the hands-down favorite mascot of a majority of high schools. However, one school probably boasts the most unique mascot in all of the U.S.: Yuma High School cheers on "the Criminals" in homage to its territorial prison. Moreover, BASIS is dwarfed by many schools: Hamilton High School in Chandler squeezes in over 3500 students, and Mesa School District has at least 4 high schools with over 3000 students, also.

Tuesday

            Tuesday began with a bang-- receiving an email containing the Superior Court judge's decision on my father's Motion for Summary Judgment in the Mesa Public School adv. Encinas, et. al. case. The motion was granted! Thus, Mesa Public Schools will not have to go to trial to defend itself against the plaintiffs' allegation of a breach of the claimed duty to provide a school crossing guard for non-students. I wasn't surprised that my father prevailed, since I had thought at the oral argument that he had the stronger argument, using the Monroe vs. BASIS Schools case as precedent. However, the judge's off-record comment at the conclusion of the hearing expressing that this was a "tragic" case had me a little worried. However, the judge agreed with my father, finding the plaintiffs' reliance on the Alhambra case did not apply because the school district in that case had created a crosswalk and thus had assumed a duty to anyone who used the crosswalk, not just students. However, in the Mesa Public Schools case, the crosswalk was not of Mesa Public School's making, but rather an existing crosswalk which imposed no legal duty on the School District to provide crossing guards for non-students. Even though the guards sometimes arrived before school was dismissed, the court held that those facts did not impose a duty upon Mesa Public Schools.

Wednesday

            Once again, a well-timed phone call saved me a car trip. Using the citation I found at the county law library at the courthouse last week, I followed up with the Arizona State Library at the capital, ferreting out the legislative history of the Senate Bill introduced in 1999 to prohibit censorship in Arizona student publications. Because all bills after 1997 have their history available online, I accessed the minutes of the Committee on Education, which was assigned the S.B.1212-441R in February 1999. Senator Lopez, a Democrat representing District 22, was the "Prime Prime Sponsor" for the bill. I already knew the bill failed to pass, but I did not realize that it was never even voted upon. Instead, the Committee held the bill; no further action was taken on the bill in the Judiciary or Rules Committees. The minutes provided a few answers, but simultaneously provoked more questions. I learned that the Arizona Civil Liberties Union supported the bill under the right to free speech in US and Arizona Constitutions and stressed that such laws exist in other states, in which no disputes over student publications have arisen thereafter. Senator Lopez explained that authorized student publications would include a faculty adviser to decide with students what to publish.

            Next, I created an 11-question survey using SurveyMonkey in order for faculty advisers to feel comfortable, knowing that their responses would be anonymous. My survey will provide data to anecdotally assess the extent to which schools in Arizona practice prior review or label student publications as speech-protected public forums. Questions also addressed self-censorship. I modeled some of the questions after a survey of high school journalists and their media advisers at the National High School Journalism Convention in Washington DC in 2013. In this way, I can compare my Arizona survey results with a national survey.

Thursday

            Drafting a cover letter to introduce my attached survey, I sent out the survey and was pleased when my first response came through less than one minute later. A few teachers expressed interest in my survey and asked to hear the results. As of this writing, I've received 19 responses. Hopefully, this is not a plateau and more responses will arrive over the break. 

Blog 3

            I went old-school this week: loads of legwork on the internship front and for letting my fingers do the walking--thumbing through the phone book--on the home front. Even though I toted my laptop along, face-to-face communication and old-fashioned detective work ruled the week.

Monday

            Hunting down James A. Rapp's treatise, Education Law, for my research on the constitutionality of prior review on school-sponsored publications, I stopped in the Maricopa County law library to log onto their computer in an attempt to gain access, but unfortunately, it was not on Westlaw, only on LexisNexis. I already knew from a prior phone call that it wasn't on the shelves at the ASU library, but I called it to determine if they had access to LexisNexis which I could use. Unfortunately, despite my pleading that I was accepted at ASU in the fall and that my father was a practicing attorney, ASU informed me that only current law students could avail themselves of LexisNexis' services. Deflated, but determined, I resolved to return to the county law library after the day's hearings to look for another treatise, Schneider's  Education Law: First Amendment, due process, and discrimination litigation, which I knew was available on Westlaw.

            A short elevator ride took me from the law library to the courtroom. Sitting in the gallery, I listened to other hearings, a co-guardianship for a mentally unstable aunt and an estate case involving creditor's claims, while waiting for my father's hearing regarding approval of three minors' settlements without a conservator being appointed--a case of first impression for the judge. Although both attorneys thought it might be more problematic, the judge agreed to allow the settlements without a conservatorship because none of the minors' settlements were in excess of $10,000. This case introduced me to the issue of consideration, a fundamental concept in contract law. At first, I thought it was odd that one of the minors, an infant, was awarded $1 for a release of her bodily injury claims stemming from a car accident when it was in utero. however, I learned that consideration is essential to prove a bargained-for agreement. A nominal $1 consideration is commonly used to establish something of value given by the parties to promise to perform or refrain from performing something they are legally entitled to do. A contract can be rescindable or unenforceable in the absence of consideration.

            After the hearing, we chatted with county employees in the courtroom. I learned how lawyers are required to attend Continuing Legal Education classes annually as part of their bar membership and that county employees also have similar continuing education requirements.

Thursday

            Well, I didn't catch the 3:10 to Yuma. Instead, I hit the road at 6 a.m. and returned back home 14 hours later at 8 p.m.. Although the signs on the I-8 beckoned me to the beaches of balmy San Diego, I had to exit at the dusty dunes of Yuma and go to a state prison. After swinging by the office to check incoming mail, I headed to the Yuma State prison--not the old western territorial prison, but the Arizona Department of Corrections prison in San Luis, a place so desolate that it made Yuma look like an oasis. Surprisingly, the prison guards did not check our car as we passed through the prison gates this time. However, since I did not have prior clearance, I could not enter the actual buildings. I sat in the car reading a law journal article while looking out the window at the corps of prisoner "trustees"--prisoners allowed to roam around and rake the rocks in the prison yard. Inside, my father met the claimant, a prisoner, to finalize a settlement and sign closing documents on a bodily injury claim.

            Then, we headed to the Yuma courthouse and met with a client and her criminal defense attorney to prepare for a criminal restitution hearing. Subsequently, we attended the criminal restitution hearing, which raised a state constitutional law issue. The court held that it was unconstitutional to reject an Arizona state statute that limits criminal restitution to a 10,000 maximum.  

            Switching gears, we met with a young female client, and her father, another client, regarding the status of the federal district civil case involving huge potential excess exposure over and above the insurance limit and the impact of the recent amendment of the plaintiffs' complaint to allege a fraudulent transfer count. Since I was familiar with the facts of the case, I was amazed how all these legal troubles began with a simple left-turn gone-wrong, which seriously injured four motorcyclists. A sobering scenario to talk over on the ride home, along with listening to my father discuss deals on other cases on the phone.

Friday

            My alarm was not the most welcoming sound on Friday morning after my long haul on Thursday. Nevertheless, I hustled to the Maricopa County Superior Courthouse in downtown Phoenix, where, once again, I detoured into the law library for some more legal sleuthing. This time, I was ferreting out the legislative history of the bill, SB1212-441R, introduced in the Arizona legislature protecting the free expression rights of students in authorized school publications and eradicating prior review by school authorities. Although the AZ Senate read the bill twice in 1999, it was not received in its final disposition. I found a site to search further the details about its defeat.

            Next, I attended the oral argument on a motion for summary judgment made by my father on behalf of his client, Mesa Public Schools. There were three attorneys representing the plaintiffs; only my father represented the defendant. The defense spoke first, asserting no duty to non-students to have student crossing guards at an intersection, relying primarily on Monroe v. BASIS. In Monroe, BASIS prevailed against a lawsuit, in which a student was injured by a car while crossing an intersection on her way home from school; the court held that BASIS had no duty to provide a crossing guard. Two plaintiff attorneys then spoke; one representing the injured plaintiff and the other the wrongful death claimants, alleging that there was a duty, or at least a question of fact.

            A motion for summary judgment pivots upon whether or not a question of fact exists: if not, the judge will grant the motion for summary judgment and there will be no trial; if so, then a jury must decide the question of fact and the motion will be denied by the judge. Listening to both sides present their arguments, I discerned how imperative it is to build an arsenal of case law to support your position. Because there was a death of a minor, emotions could potentially cloud legal precedent, although it is not allowable. The judge took the motion for summary judgment under advisement, meaning he will review the case law and make a decision in the future. Following up, my father reported to Mesa Public Schools on the argument.

Research

            On the days that I did not shadow my father, I took the lead at home. Commandeering the phones, I spent hours individually calling high schools in Arizona to obtain the email address of journalism teachers or the faculty advisers of student newspapers. The prior two weeks have taught me a hard lesson, I should have verified my SRP proposal's assumption that emails for other schools would be as readily available online, as is the case at BASIS. My earlier attempts at calling school district superintendents produced negligible results: transfers to answering machines and no returned calls. To fix this glitch in my research, I committed myself to cold calling each school to ask for journalism teacher's email. Surprisingly, Friday afternoon proved the most profitable, scoring tons of contacts--tedious, yet productive. On Monday, I'll man the phones some more, hoping to amass enough emails to amass a truly representative survey, which I'm hoping to send out by the end of next week.

While the email situation was a little discouraging, my research on the viability of challenging Arizona's laws on student publications was encouraging. A bill introduced in January of 2015 in North Dakota protecting student journalists freedom of speech using Tinker's expansive standard, not Hazelwood restrictions, was likely to be passed. Because a Republican representative had introduced this, it holds hope for Arizona. Moreover, Washington State in 2010 also entertained a school district's proposal that protected both the student free speech without prior review and school districts from liability for that speech. I consider these both good leads for further research.  

Blog 2

Week two highlighted the highs and lows of shadowing an attorney, who also happens to be your father: preferential access to tag along to a variety of venues, yet no special treatment either--a ten-hour work day with no lunch break! All in all, the fast pace was fun, and even travel time was enlightening, discussing the law and listening to my father on the phone strategizing with other attorneys and adjustors to strike deals.

Wednesday started with an early morning meeting with a proposed conservator for a minor settlement at Maricopa County Superior Court. Driving to the court, my father, the defense attorney in this case, briefed me on the facts. While driving a monster truck, his client took a right turn by the nail salon where she was working and killed a mother of two minors, injuring one with over 70,000 medical expenses and scarring, leaving the other minor with emotional distress. Right away when we arrived at the court, there was a problem--the Arabic interpreter we requested did not appear. Because the plaintiff only spoke Arabic, my father made a motion to the court to make an exception and rule on the pleading without testimony. Fortunately, the judge granted the motion and approved the settlements. Once again, as I am learning the standard procedure, we went to the clerk of the court to get letters of conservatorship issued and then traveled to the bank to set up restricted accounts for the minors.

At the bank, we met with the plaintiff's attorney, who was a new attorney who had only been practicing for two years. He had immigrated from Palestine to the U.S. and attended ASU as an undergrad, graduated law school, and then started as a sole practitioner doing criminal defense, immigration defense, and personal injury law. Engaging with the plaintiff's attorney about his perspective about being a lawyer, I noticed how both he, a new attorney, and my father, an attorney for 29 years, shared an enthusiasm about the law and being an attorney.

Next, we hustled to west Phoenix to meet with clients to get an affidavit of no other insurance signed, so that the plaintiffs could pursue an underinsured motorist claim. We had to hurdle past another language barrier, this time the clients were Spanish speakers so we had the neighbor next door translate. The clients couldn't understand why the insurance company was paying any money when they were not at fault. In short, the answer is that payment protects the clients from a potential huge excess exposure, even if they don't believe they have liability. The risk is winning big or losing big. It wasn't easy, but the affidavit was signed. Afterward, my father and I traveled to the apartment of the client's passenger, where my father did a repeat performance--getting a neighbor to translate Spanish and getting an authorization signed to enable him to gather her medical records and evaluate her claim.  

For a change in pace, my father was going to meet with a plaintiff as a client (generally, he is a defense attorney, but sometimes takes on plaintiffs as clients). The case involved a car accident; causation was the issue--whether her injuries were related. Speaking with the female client, the attorney went over medical records from before and after the accident, developed a theory of recovery based upon these medical records in preparation of the client's deposition, and completed responses to discovery requests made by the defendant's attorney and her initial disclosure statement. 

In this case, the plaintiff was an "egg-shell" plaintiff, a term in tort law referencing plaintiffs who have prior conditions which are aggravated by an injury caused by the defendant. The defendant takes the plaintiff as he finds them; he is liable for all damages to the egg-shell plaintiff even if damages would have been much less to an average plaintiff. Here, the plaintiff alleged that she had prior problems with neck, right shoulder, and right arm, which first occurred in an incident six years before, had been asymptomatic for six years except for a tingling in the right thumb, and then ultimately required carpel-tunnel surgery after the accident. When evaluating a client's claim, an attorney must weigh his client's credibility--how believable he/she appears. We both agreed that the plaintiff appeared very credible.

On Thursday, I finally was stationary. For five hours, I poured over pleadings and case law in preparation for an oral argument on Mesa Public School's motion for summary judgment on a duty issue regarding student crossing guards. I reviewed the school district's motion and accompanying statement of facts in support of the motion, the plaintiff's response and supporting statement of facts, the school district's reply in support of its summary judgment, the plaintiff's objection to the school district's reply, all case law cited in the pleadings, and the Restatement of Torts on this issue. The purpose for all of this reading was to begin preparation of a mock oral argument to question my father, who is representing Mesa Public Schools. Even though I was no longer sitting in class at BASIS, it still loomed in my thoughts. Monroe v. BASIS School, Inc. was used as precedent to support the school district's defense.

Back home, I researched online and discovered that most high school districts in Maricopa, Pinal, and Pima counties have the same policy on student publications in the Arizona School Board Association Manuals. The wording basically provides a standard of prior review for school sponsored publications in line with the Hazelwood decision. However, I also discovered a few high school online newspapers that contain policies declaring the publication to be either a public forum, such as Kofa High School in Yuma, or a limited public forum, such as Valley Vista High School. Consequently, Hazelwood  is the floor for student journalists' right to free expression in Arizona, and each high school can provide more First Amendment protection by adopting an express school policy.  The Governing Board Policy of Mesa Unified School District is particularly intriguing: its language echoes both the "materially disrupts school" test of Tinker and the prior review standard of Hazelwood. I called many school district offices in Maricopa County to contact their superintendents for more detailed information and further contact emails. Presently, I am still waiting for replies, and I plan to make further calls next week. 

Blog 1

            Reviewing my first so-called "on-site" week shadowing an attorney, I realized that attorneys aren't often on-site. Bustling back and forth between varied venues this week defied my initial expectations of a more sedentary job. Besides learning some fundamentals of the law and civil procedure, I was impressed by how important a role the soft skills of communication and psychology  play in the practice of law.

Monday:

            On Monday, to prepare me for the day's agenda, the civil defense lawyer who I am shadowing gave me a legal primer on the difference between tort law and statutory law. A cause of action is a set of facts justifying the right to sue. Statutory law is based on federal or state statutes defining a cause of action; tort law is based on the "reasonably prudent person under the same circumstance" standard. The day's issue concerned statutory law--Arizona's "dog at large" statute, in which the owner of a unleashed dog is strictly liable if an injured plaintiff brings suit within one year. Because it is statutory law, the plaintiff does not need to prove that the dog owner acted reasonably.

            Next,  we arrived at the plaintiff's law firm to conduct a deposition-- a meeting attended by both parties' attorneys to take the sworn statement of a party or witness to a lawsuit that is conducted through a question and answer format, similar to cross-examination at trial. Attending a deposition of the female plaintiff claiming to be injured by a neighbor's dog, I observed how attorneys cross-examine claimants to make a written record of their testimony that is admissible in court. Attorneys seek to get yes-or-no direct answers, therefore they narrowly frame their questions. I also saw how attorneys interact with opposing counsel--what is known as professionalism. For example, requests for medical records or diaries were made politely, rather than aggressively demanded. Because the plaintiff was emotional and disputed the accuracy of her medical records, questioning was difficult and sensitivity was required.

            After the sworn deposition of the plaintiff, both counsels discussed settlement and further handling of the case, including experts and independent medical and psychological exams. This settlement discussion was followed up with a visit to the Apache Junction Justice Court to find an injunction against harassment that the plaintiff sought against the defendant, our client, for a subsequent incident alleging intimidation with a car and to gather documents on the dog incident.

            Later, we met with his client, the defendant in the dog incident, to interview him at his home and also to interview two other witnesses there. An attorney is required to receive permission before he can make any offer of settlement on the client's behalf. The client gave his permission to enter into a binding arbitration high-low agreement (Alternative Dispute Resolution) to avoid a jury trial. By capping the plaintiff's damages, the attorney avoided the potentially excess policy limit jury verdict that he would be exposed to at trial.

            The plaintiff's damages depended on deciding causation--what injury was caused by the incident--and aggravation--if her pre-existing injuries and stress were compounded by the incident. I learned the difference between "a" cause (meaning one of many causes) and "the" cause (a but-for single cause of the injury) when measuring liability.

Tuesday:

            Heading up north to Prescott to the Yavapai County Superior Court, the attorney and I meet with his client, a twenty-four-year-old male charged with DUI and aggravated assault from a car accident, facing 4 months in jail and 5 years of probation. We were not dealing with his criminal claims; we were explaining to him his situation and what we were trying to accomplish as it relates to criminal restitution claims. We filed pleadings in the court to get a court order deeming the client's criminal restitution satisfied by using the client's insurance coverage to reach a global settlement of all claims.

            Leaving the court house, we encountered a press conference and memorial honoring Kayla Mueller, the humanitarian aid worker from Prescott who was kidnapped by ISIL and confirmed dead the prior day. Sadly, unlike his client, it's going to take more than a court order to rectify that grievous situation.

            Afterwards, we made a detour to inspect another accident scene in Prescott Valley, observing the timing sequence of a traffic light and evaluating liability.

Wednesday:

            At an early morning meeting in the Phoenix law office where I am interning, I sat in on my attorney's consultation regarding an excess policy limit exposure and a minor's settlement, which lasted about 1.5 hours. Because the minor, who was a driver in a major car accident, was about my age, I found the issues relatable.

            Next, we conducted an investigation in an attempt to locate a potential claimant. Successful, we were able to contact him to explain the situation and obtain his cooperation. After we made a quick stop to tour the courtrooms at the Maricopa County Superior Court, the main courthouse in Phoenix, we visited the adjacent Law Library to gather information on how I can sign onto legal search engines for my SRP research.

            Finally, we attended a court hearing regarding the reasonableness of another minor's settlement. After preparing the clients for about 45 minutes, we attended the conservatorship hearing, which was fairly routine because it was not contested, but provided a glimpse of the rules of civil procedure in action. I sat at counsels table and was introduced to the judge. Afterwards, we accompanied the client to the clerk's office to have letters of conservatorship issued and then to a bank to set up a restricted account for the minor's settlement.

Research

            I started accumulating contact information for the high schools which I will survey about school censorship. In Maricopa County alone, there are over 380 public high schools. Finding email addresses is proving difficult. Most schools just list phone numbers and mail addresses. I've discovered a few schools which have established policies declaring their school publications to be public forums, which is promising.