IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
STEVEN P. BARBA, individually
and d/b/a
)
INNOVATOR.
)
)
Plaintiffs,
)
)
v.
)
)
GOVERNORS STATE UNIVERSITY,
)
BOARD OF TRUSTEES OF GOVERNORS
)
No. 01- C- 0500
TOMMY DASCENZO, PATRICIA
CARTER,
)
STUART FAGAN, PAUL KEYS,
)
JANE WELLS, DEBRA CONWAY,
)
PEGGY WOODARD, FRANCIS
BRADLEY,
)
PETER GUNTHER, ED KAMMER,
)
DOROTHY FERGUSON, JUDY
)
YOUNG, CLAUDE HILL IV, and
PAUL
)
SCHWELLENBACH,
) The Honorable
SUZANNE B.
CONLON,
Judge
Presiding.
Defendants.
Jurisdictional Memorandum
Now
come Plaintiffs, acting pro se, in
their appeal to this court for consent to file a cross-appeal with the U.S.
Court of Appeals, per the First and Fourteenth Amendment complaint filed by them
in the Seventh Circuit District Court. This
memorandum shall attempt to accomplish the following:
1)
demonstrate that Defendants offered patently untrue statements in their
testimonies;
2)
demonstrate that Defendants’ counsel offered patently untrue statements
in its’ arguments;
3)
demonstrate, therefore, that the District Court relied on Defendants’
and Defendants’ counsel’s patently untrue statements in determination of
its’ erroneous rulings;
4)
demonstrate that the Defendants were erroneously granted summary judgment
by the District Court;
5)
demonstrate that the Defendants were erroneously granted qualified
immunity by the District Court;
6)
demonstrate that the Defendants were
erroneously granted respondent superior immunity by the District Court;
7)
demonstrate that the student Defendants were erroneously dismissed by the
District Court;
8)
demonstrate that the Plaintiffs were erroneously denied a motion to amend
their complaint by the District Court; and
9)
demonstrate the jurisdiction entitled to this Appellate Court to remedy
the errant decisions of the District Court, thereby ensuring the remedy and
justice guaranteed to Plaintiffs by the Illinois State Constitution, and a
preservation of the liberties guaranteed to Plaintiffs by the U.S. Constitution.
As
this court has requested Plaintiffs to submit a “brief memorandum,”
Plaintiffs shall merely provide examples, therefore, substantiating their
complaints against Defendants, Defendants’ counsel, and the District Court.
This is necessary to fulfill, as
best as possible, the request for brevity made on the part of this court, as
a detailed exposition of the two-dozen-plus counts and comparably-enumerated
Defendants would, understandably, result in a compendium of argumentation far
exceeding the size of a brief proper. Plaintiffs
request pardon from this court for the undoubtedly exceptional length of this
memorandum, however, also hope to justify it to this court by virtue of its’
contents. (1)
Of
the Defendants named, four were deposed during the period designated by the
District Court for written discovery, namely Defendants Fagan, Keys, Carter, and
Bell; the remaining Defendants provided affidavits as to the allegations
annotated in the original complaint filed by Plaintiffs. These Defendants, in
the course of their testimonies, or in the text of their sworn testimonies,
conveyed to the District Court patently untrue statements, for which the
material evidence to substantiate the falsehoods uttered by Defendants was
provided during the course of the District Court’s prescribed written
discovery period.
For
example, Defendant Fagan testified that Plaintiffs never filed an complaint with
the university against Defendants (Fagan 46,
16-17), yet in the course of written discovery, both Defendants’ and
Plaintiffs’ counsel filed a copy of the December
2000 letter written to Defendant Woodard by Plaintiffs of which the very opening
sentence reads “Please consider this an official grievance.” Moreover,
Defendant Keys testified that he had instructed Defendant Woodard to handle the
grievance and report her findings to him (Keys 32, 17-24), for which Defendant
Woodard provided a written report to Defendant Keys, a copy of which was
submitted by Defendants during written discovery As such, Defendants themselves
supplied material evidence to substantiate that Fagan’s testimony herein is
false, and that, indeed, an official grievance had been filed by Plaintiffs, and
that administrative Defendants had been ordered to address it.
_____________________________________________________________________
(1) Plaintiffs are hopeful that this court will patiently and graciously bear in mind Plaintiffs pro se status herein, as Plaintiff editors are merely college students in the discipline of English, with no legal background or training of any kind, and, as such, are conversant neither with established court protocol or points of law. Any perceived disrespect to this court, by this court, therefore, is unintentional on the part of Plaintiffs, who ask pardon of it, and who intend to honor this court to the best of their abilities, research, and instruction per these and all future proceedings.
Moreover,
Defendant Carter testified that the reason she had contacted Plaintiffs’
printing agency was to verify that Plaintiffs had access to an advisor and to
ensure that an individual was in place to proofread for spelling and
grammatical
errors. (Carter 4, 1-20) Yet in
every issue of Plaintiffs’ publication, The INNOVATOR, there appeared a
“credentials box,” in which the name of Plaintiffs’ advisor, Geoffrey de
Laforcade, appeared. Plaintiffs’ advisor’s name in each issue could be
readily located by anyone, including Carter, as the box cited consistently
appeared near the front of every issue produced by Plaintiffs.
(The decision to whom advising and proofreading --
purely editorial function-- would fall, is an entitlement of the
editorial board, which neither Carter no any other of the Defendants had the
right to abrogate. The District
Court acknowledged in its opinion of November 13, 2001, that “student editors
and writers are given complete editorial control over the newspaper,” (Section
B, g.2) and the District Court acknowledged, at least herein, that Defendant
Carter overstepped her discretionary powers.)
Most
importantly per this argument, though, is not simply that Defendant Carter
alleges that her calls to the printing agency were to establish advisory and
editorial facets being in place per Plaintiffs’ publication, but that
Defendant Carter’s testimony should be considered untruthful in light of
material evidence. In addition to
the fact that a confirmation of an advisor being in place by virtue of the
credentials box included in each issue of said publication, Defendants Carter
and Keys both signed a contract with another university employee by name of
Emmanuel Elozie to perform such a function .in effect, no less, than the very
day prior to Defendant Carter’s having placed the calls to Plaintiffs’
printing agency. As such, Carter
cannot truthfully claim that she made the calls in an attempt to ensure there
was an individual in place to perform the functions she cites, as she had
contracted one to do so the very day prior to placing the calls.
Additionally, Defendant Keys’ signature is likewise on the contract,
and therefore his testimony that he assumed Carter’s response to his alleged
inquiries to have been truthful should be viewed as being highly suspicious and
incongruent to the material evidence which bears his signature, no less, as he
would not have been required to sign the contract until after Carter did, and
unless Defendant Keys is in the habit of signing over hundreds of dollars to an
individuals without questioning if the need is valid, then either his habits or his testimony herein can only be
questionable.
In
the case of Defendant Bell, Bell testified that, as an ex officio member of the Plaintiffs’ intended publishing body, the
Student Communications Media Board (SCMB), he had no authority to act
independent of that body (Bell 5, 15), i.e., that he had only advisory, and not
discretionary powers. Yet
Defendants submitted copies of invoices having been submitted by Plaintiffs to
the university for equipment vital to the success of their press operations
(i.e., cameras, a facsimile machine, and a printer which could handle
layout-sized paper) on which Bell is autonomously designated as having been the
individual cancelling said purchase requests In this, Bell not only arguably
acted independent of the SCMB in exercising a discretionary power to which he
was not entitled, he overturned an official act of the SCMB, which had
previously voted approval for purchase of the equipment, and for which the SCMB
was specifically apportioned money by the
university per the INNOVATOR’s and SCMB’s annual budget requests for that
fiscal year.
Moreover,
the reasons which are annotated on cited invoices for Defendant Bell’s
cancellation are patently misleading; Bell cites Plaintiffs’ failure to
collect items ordered as being reason for the cancellations, yet Plaintiffs
arguably could not collect merchandise for which they were not remitted payment,
and the SCMB had frozen Plaintiffs’ account in refusing to transfer the money
awarded to it for Plaintiffs’ use into Plaintiffs’ account, evidenced in
Defendant Dascenzo’s handwritten note to Plaintiffs that no purchase orders
could be processed against their account until a transfer of said accounts had
occurred. Of course, the purchase orders for the equipment were authorized
(in a meeting taped by Plaintiffs) by the SCMB to be charged against that
body’s account since it refused to release the funds directly to
Plaintiffs’ account, but the invoices were still
never honored, despite the fact that the SCMB’s account had funds enough to
cover the intended and approved purchases.
Since the SCMB cancelled its’ October, November, and December 2000
meetings, and since the equipment cancellation was not discussed at the January
2001 meeting (which Plaintiffs have on tape, done in order to evidence OMA
violations on the part of Defendants Bell and SCMB members), the cancellation of
the equipment, therefore, becomes even more suspect of duplicity on the part of
the Defendants: either Bell lied to the court about having rightful autonomous
and discretionary powers in association with the SCMB, or Defendants (minimally
Bell and the SCMB members) conspired secretly to overturn the authorization of
payment for the equipment ordered by Plaintiffs.
As those Defendants most certainly could not have voted to overturn the
decision legally as a result of the cancellation of the October, November, and
December 2000 meetings, and since Plaintiffs’ possess material evidence (i.e.,
the tape of that meeting) which can demonstrate that such action was neither
discussed nor determined at the January 2001 meeting, it stands to reason that
Bell acted either independently in excess of his rights, or that the SCMB
conducted clandestine meetings to rule on cancellation of the equipment—which
is a violation of the OMA of this state, and indicative of civil conspiracy on
the part of the Defendants. In
fact, Defendants Bell, Carter, Ferguson, Kammer, and Bradley did conduct clandestine meetings regarding SCMB matters, evidenced
by the agenda submitted by Defendants for December 7, 2000. (2)
________________________________________________________________________
(2) Plaintiffs have secured an agreement
on the part of a witness to provide the court with an affidavit to this effect,
who is a former member of the SCMB, and not a party named in this suit.
Of
the Defendants who provided written affidavits, Plaintiffs shall example the
falsehood of said testimonies in at least two instances herein, as constraints
exist which preclude Plaintiffs from addressing them all in detail.
In
Defendant Conway’s affidavit, she affirms that she performed her functions as
a staff member designated to support Plaintiffs by virtue of her position at the
university. (Conway 1, item 12) Yet
Conway refusal to process Plaintiffs’ paperwork is evidenced both by her
contradictory admittance that Plaintiff Hosty processed all purchase orders for
the duration of Plaintiffs tenure (Conway 1, item 14), as well as by the
purchase order ledgers maintained under Conway’s auspices exclusively for
processing purposes, as no entries existing during the period of Plaintiffs’
tenures on the INNOVATOR are in Conway’s manuscript, but instead are in
Plaintiff Hosty’s. If Conway, indeed, had performed her duties as she has
testified, then there would have been no reason for Plaintiff Hosty to enter the
multiple ledger entries for processing purposes. Moreover, Defendant Bell provided Plaintiff Hosty with a
sample purchase order at Hosty’s request when Conway refused to process the
Plaintiffs’ paperwork, in order that she could attempt to have documents
processed. The sample document is
in Bell’s own script, and if Hosty had no need to process her own paperwork,
then Bell would not have needed to provide her with one.
Moreover,
this evidences further perjury on the part of Defendant Bell, who testified that
students, during his tenure, were never
permitted or required to process purchase orders themselves, and that the duty
fell always to Student Life employees. (Bell 38, 12-14) Yet, again, the
processing ledgers are indisputably in Plaintiff Hosty’s manuscript, which
betrays the falsehood of Bell’s statement; if Hosty were not either permitted
or required to process the purchase orders, then Bell is at a loss to explain
why he created for her a sample document to that effect.
The
Defendants having provided affidavits to the District Court affirm that they had
no knowledge of the repeated break-ins having been committed in regards to
Plaintiffs’ press office. Yet the break-ins were reported in two issues of the
INNOVATOR, in a campus-wide flyer created by Plaintiffs and posted by Student
Life, as well as n meetings of the SCMB. Moreover, Defendant Kammer was employed
in Student Life at the time of the aforementioned flyer’s having been posted
on the Campus boards, which fell directly to the station at which he was
employed. (3)
As
should be apparent to this court per these limited examples, Defendants both
misrepresented the truth to the court and then themselves provided the District Court with material evidence to
betray the truthfulness of their testimonies.
While Plaintiffs are of the opinion that such falsehoods should
ultimately be regarded as contempt for the court (in that they mislead and
misinform the court), it should minimally evidence that Defendants’
testimonies should not have been construed by the District Court as having been
entirely truthful when having rendered its’ decisions.
Defendants
are not exclusively at fault in misleading the District Court, as Defendant’s
counsel egregiously misrepresented aspects of the Plaintiffs’ complaint,
testimonies, and evidence, as well as aspects of Defendants’
________________________________________________________________________
(3) It is
a university-established policy that all items to be posted on the campus-wide
boards falling under the auspices of Student Life first be stamped with that
unit’s approval, and then ordinarily be posted by employees of the station
wherein Kammer (and later Hill) have been employed. It is also the
university-established policy of Student Life to remove any items from its’
campus-wide boards not authorized by the unit, and therefore, even if Defendants
employed in Student Life did not hang the flyers citing the break-ins
themselves, it is arguably probable that, in the event Plaintiffs had posted
them without unit consent, they would have witnessed the flyers in removal of
said items. If Defendants elect to testify that they did not bother to read the
newspaper, then their commitment to upholding their public offices and the
mission statement governing them, i.e., “to support the student media at GSU,”
must be called into scrutiny as being willful ignorance on their parts.
testimonies and evidence.
Here also, owing to requested brevity by this court, Plaintiffs shall
attempt to afford this court with a minimal accounting of Defendants’ counsel
(hereafter simply referred to as ” Defense”) errant and misleading
offerings. As such, Plaintiffs
contend that the District Court, nominally, should have, when ruling, reasonably
cited and considered the following deficiencies and anomalies in Defense’s
argument(s), namely that:
a)
Defense’s argument misrepresented Plaintiffs’ testimonies;
b)
Defense’s argument contradicted Defendants’ testimonies;
c)
Defendants’ testimonies contradicted other Defendants’ testimonies;
d)
Defense’s argument did not sufficiently address Plaintiffs’
complaint;
e)
Defendant testimony contradicted itself for some Defendants; and
f)
Defense’s argument attempted to utterly dismiss Plaintiffs’ evidence
which runs contrary to Defense’s argument.
An example to
substantiate each contention is offered, then, as follows:
a)
Example:
Defense consistently presents the argument that Plaintiffs received Macintosh
computers instead of IBM ones, yet Plaintiffs’ complaint specifically states
that they were “impeded” from receiving the platform of their choice (24m of
original January 24, 2001 complaint), not ultimately denied it.
Defense argues consistently that Plaintiffs had Macintosh computers
ultimately forced on them, which is patently untrue, not merely in consideration
of Plaintiffs’ testimonies, but by virtue of Defense’s own
material evidence submitted during written discovery.
Anyone should plainly see that the invoices which were paid for the
nominal equipment received by Plaintiffs are not
Macintosh products, but Compaq.
Why Defendants fail to instruct Defense correctly per this regard remains a
mystery to Plaintiffs, however, the District Court and all subsequent paperwork
filed by Defendants incorrectly maintain that Plaintiffs’ were ultimately
forced to receive Macintosh equipment, which is irrefutably untrue by virtue of
the purchase invoices. If Defense
cannot even get the facts of the case straight, how can the District Court be
expected to rule on them accordingly? Just as important is the fact that the
District Court assumed Defendants’ position as being patently true, in spite
of contradictory testimony and material evidence; this it does not have the
authority to do, as it is not the judge's role to determine "the truth of
the matter." Big Apple BMW, Inc. v.
BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)(quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)),cert. denied, 113 S. Ct. 1262
(1993)
b)
Example:
Defense has argued that its’ evidence establishes that the SCMB meetings of
November and December 2000 were cancelled by Defendant Kammer. Yet Defendant
Bell’s testimony affirms that he
cancelled the meetings because he
thought it appropriate to do so (Bell 107, 22). In this, contrary to Defense’s argument, Defense’s own
evidence does not establish that said meetings were cancelled by
Defendant Kammer, and thereby contradicts Defendants’ testimonies.
This is also evidence of the next
problem inherent with Defense’s argumentation.
c)
Example:
Both Defendant Bell and Defendant Kammer claim to have employed discretionary
privilege in cancelling the December 2000 meeting, Kammer in his affidavit (Kammer
1, item 9), and Bell in his deposition (Bell 108,1).
In this, Defendants’ testimonies contradict each other, and therefore
must be called into greater scrutiny, as it is not possible for both Defendants
to be relating the truth to the court in each claiming autonomous determination
in cancellation of the aforementioned meeting. Also, Defendants Carter and Bell
contradict Defendant Dascenzo’s testimony regarding Plaintiff’s
accessibility to essential software and manuals.
Dascenzo affirms (Dascenzo 2, item 16) that Plaintiffs had access to said
materials “at all times,”yet Bell testimony reveals that his hours were
incongruent to Plaintiffs (Bell 37,1-2), and Carter testified that Defendants
were aware of the considerable disparity between Bell’s and Plaintiff’s
hours (Carter 56,2-3). How then, if Plaintiffs’ access to said materials were
contingent on Bell’s presence, could access be unrestricted, as Dascenzo
affirms? Moreover, Plaintiffs
submitted a written by a member of the university’s Department of Public
Safety (DPS) which affirmed that Plaintiffs’ hours regularly fell outside
those work hours in which Bell would typically be expected to be on campus.
d)
Example:
Defense’s argument only addresses the cancellation of the November and
December 2000 SCMB meetings cancelled, despite the fact that Plaintiffs’ have
consistently argued that a third, regularly-scheduled meeting, that of October
2000, was cancelled. As such, Defense insufficiently addresses Plaintiffs’
contentions, and neither acknowledges nor addresses the October 2000 meeting in
its arguments attempting to defend parties appointed to it for representation.
So too, the District Court completely glossed over the fact that no
explanation is offered for the October 2000 meeting, ruling only on the two
acknowledged by Defendants. In
this, the District Court has ruled on an inadvertent assumption that
Defendants’ contentions are truthful (I.e., only two meetings were cancelled)
since it failed to even acknowledge Plaintiffs’ contentions that three SCMB meetings were
cancelled by Defendants and not addressed by Defense. (The meeting to have been
held is evidenced in the annual, published schedule for the SCMB. That court
does not have the authority to determine “the truth of the matter” as to how
many meetings were cancelled, again, per the ruling Big Apple BMW v. BMW of No. America.
e)
Example:
Defendants’ testimony contradicts itself as evidenced in Defendant Bell’s
testifying that he possessed no autonomous discretionary powers regarding SCMB
matters, yet he testifies also that he cancelled the December 2000 meeting.
Also, Bell testified (Bell 108,1-4) that Plaintiffs’ could have gone to press
in December of 2000 with his
authorization as offered in his email of December 19, 2000 , yet also testified
that it was necessary for an advisor to sign off on the publication (Bell 109,
2-5), which Bell is not nor has ever been for Plaintiffs.
Additionally,
Defendant Carter had already exceeded her authority and abrogated editorial
control of Plaintiffs’ publication by firing Plaintiffs’ advisor 12 days
prior to Bell’s email. Bell’s offering to authorize signing off an issue,
therefore, is moot; Bell was aware, due to his experience as liaison to the SCMB
for several years, that an advisor’s signature was required, and having no
officially-recognized advisor at the date of his email transmission,
Plaintiffs’ could not submit to the printing agency an issue to publish.
Moreover, Bell testifies that Defendants were attempting to ensure that
all elements were in place for Plaintiffs to be able to go to press (Bell 52,
18-23), a statement which emphatically, although indirectly, implies that, as
Plaintiffs contend, those elements were not
in place, which precluded them from publishing.
Defendants
did not appoint an official advisor to the INNOVATOR until mid-February of 2001,
which demonstrates that Plaintiffs’ were unable to gain officially-recognized
authorization for submission to the publishing agency for in excess of two
months, and therefore could not rightly publish any issues as a result of
Defendants’ actions. (4) As
such, Defendant testimony severely contradicts itself herein, which should cast
further suspicion on the truthfulness of Defendants’ testimonies and the
propriety of Defense’s arguments.
f) Example:
Defense has argued that “the evidence presented by the record established that
none of the Defendants’ conduct amount to constitutional violation.” This is
patently untrue and intentionally misleading on the part of Defense, as the
court should rightly recognize that the letter written by the publishing
agency’s owner is emphatically evidence contrary to Defense’s claims.
The document is clearly material evidence, the author of the missive
herein cited is not a party of the suit, and the letter clearly implicates
Defendant Carter as having engaged in constitutional violations.
So too the ’ “open letter” to Defendant Fagan written by
Plaintiffs’ advisor, his confirmation of behavior witnessed by the Defendants,
and the letter written by the external organization which investigated
Plaintiffs’ claims about Carter’s calls to the printer. Here too, the
documents constitute material evidence, the parties are not named in this suit,
and they clearly implicate the offensive behavior of the Defendants.
Such evidence does not
“establish” what Defense argues. No evidence whatsoever?
Hardly the case, and said statement evidences Defense’s intentional
misrepresentation of the truth to the court in an attempt to achieve a more
persuasive argument.
For
these reasons, amongst others which neither time nor brevity permit to be
addressed herein, Plaintiffs contend that Defense argued patently untrue
statements in its arguments to the court, which, in turn, contributed to the
District Court’s having rendered erroneous opinions.
______________________________________________________________________________
(4) Plaintiffs wish to point out another
misleading and patently untrue statement evidenced by Defense, i.e., the
statement that “The only thing preventing Plaintiffs’ from publishing the
Newspaper was their own paranoia.” (Pg.11 of its’ “Memorandum to support
Defendants motion for Summary Judgment”)
Plaintiffs contend that, despite the fact that this is an outright lie,
their having been stripped of an advisor, suffering repeated criminal damage to
equipment and tampered mail, and having been detained/restrained for hours by a
handful of armed state police officers on more than one occasion, would not
constitute “paranoia” to any reasonable, intelligent human being.
Plaintiffs resent the derogatory and libelous representation of their
characters in public record as erroneously inferred by Defense, and despite the
fact that Plaintiffs are the victims of this sad affair, they have refrained
from resorting to defamatory language in reference to the Defendants in their
arguments. Plaintiffs would
appreciate, therefore, if this court would instruct Defense to afford Plaintiffs
the treatment with “the fairness and respect for their dignity” assured to
victims by this state’s constitution (Article I, Section 8.1.a.1), and to
hereafter abide by the decorum which should rightly be afforded to, exemplified
by, and upheld by this court and all parties in connection to it.
The District Court
relied on Defendants’ and Defendants’ counsel’s patently untrue statements
in determination of its’ erroneous rulings
As
should be increasingly apparent to this court, both Defendants and Defendants’
counsel have not aptly or truthfully rendered to the District Court arguments,
responses, and testimonies which convey the genuine facts of this case.
Sadly, these parties are not exclusively at fault in the dealings of this
complaint, as the District Court seems to have failed in rendering unbiased
opinions by virtue of assuming the position contrary to Plaintiffs, in essence,
seemingly relying on Defendants’ testimonies and Defendants’ counsel as
being factual, disregarding even the inconsistencies in Defendants’
testimonies and the material evidence supplied, no less, by them, to the public
record.
For
example, the District Court, in its’ opinion of November 13, 2001, stated that
“The media board replaced the IBM computers with Macintosh computers in order
to conform to the media industry standard.” (Section B, pg.3)
Yet it should abundantly clear (per the invoices cited previously) that
the computers received by Plaintiffs were not
Macintosh, but Compaqs. Moreover,
the District Court’s statement upholds Defendant testimony that Macintosh
computers are truly representative of the media industry standard, which absolutely
contradicts the intensive research conducted by Plaintiffs, and constitutes one
of the reasons Plaintiffs fought Defendants so strenuously to block
implementation of a Macintosh platform. (5)
________________________________________________________________________
(5) Plaintiff
Hosty contacted the university’s own Information and Technology Services
(ITS), i.e., its’ computer department, all of the major newspapers in Chicago,
and some of the major publications in the Chicagoland area, each which rely on
IBM-compatible computers for everything save advertising layouts, as Macintosh
is well-suited for graphics. This
reliance on the part of these papers, as was explained to Hosty by said papers,
constitutes many of the same reasons Plaintiffs objected to the Macintosh
platform Defendants attempted to force on them, which can be explicated more
fully in a brief. Plaintiffs intend to call as witnesses the ITS personnel with
whom they spoke.
Also, Plaintiffs
must request pardon from this court
for the following, apologetically-lengthy example, as Plaintiffs’ intent is to
demonstrate to this court the error in ruling that the meetings were cancelled
for reasons stated only by the Defendants and erroneously upheld by the District
Court. (In doing so, any of the Defendants involved herein should additionally
have any attempts on their parts of pleading having acted in “good faith”
towards Plaintiffs under careful consideration.) The District Court, in the same
opinion, wrote “The November and December 2000 media board meetings were
canceled,” (Section B, Pg. 3) which evidences, as is the case with Defense’s
stated arguments, no acknowledgment on that court’s part whatsoever of the
October 2000 meeting having been cancelled by Defendants.
In this, the District Court inadvertently assumes Defendants’ position
as being truthful instead of Plaintiffs, and does not require Defendants to
account for the cancellation of the third meeting.
The District Court continues to state that “The November meeting was
canceled so the new administrative liaison to the media board, Donald Bell,
could familiarize himself with the issues pending before the media board,” and
that “The December meeting was canceled due to the hospitalization of media
board chairman Ed Kammer.” (Section B, Pg. 5)
Also
stated in the opinion is that “Here it is undisputed the November and December
meetings were canceled for legitimate reasons.” (Section B, Pg. 10) This is
nothing more than an exclusive recanting of Defendants’ position, and
evidences that the District Court had taken it upon itself to determine that
these were, indeed, truthful (and moreover, legitimate) reasons for the
cancellation of said meetings—a privilege to which that court should not be
entitled, as that privilege properly should be reserved for a jury. The cancellations of the meetings were not even
legitimate per the OMA of this state, and Plaintiffs hotly
dispute the reasons. Defendant Bell was not, as the District Court states,
“new” to the position, as he had acted as liaison for several years prior to
Plaintiffs’ tenure on the INNOVATOR. (In this, the District Court wrongly
assumed that Bell was new to the position simply because Defense said so, which
is evidence again of its merely assuming Defense’s position to be “the truth
of the matter.”)
Bell
was, however, temporarily removed during the course of Plaintiffs’ tenure by
Defendant Dascenzo (Bell 7,8-24 & 15,8-12) as a result of Plaintiffs’
discovering and presenting material evidence to Dascenzo that Bell was
misappropriating SCMB funds and equipment, having made several purchases with
money intended for the Plaintiffs’ budget (without SCMB knowledge or approval,
both requisite per university-established policy), and for taking home
(unbeknownst to the university, including his immediate supervisor, Dascenzo)
expensive computer equipment , i.e., a several-thousand-dollar laptop computer
and accessories purchased with SCMB funds specifically for student use, is an
invoice which Plaintiffs attempted to tender to the SCMB for payment to fix the
computer Bell reluctantly turned over to them when mandated to by Dascenzo), and
because Bell had failed consistently to perform his duties as liaison despite
numerous requests by Plaintiffs. Defendant
Dascenzo created, following discovery of Bell’s indiscretions by Plaintiff
Hosty, a form to help prevent further offenses from being committed, and
Defendant Dascenzo assumed the position on an interim basis until his departure
for retirement in September of 2000. Defendant Carter re-appointed Defendant
Bell in the wake of Dascenzo’s departure, and Bell’s first act upon being
reinstated was to see to it that the November 2000 meeting was cancelled, and,
as Bell testified, to collaborate with the other Defendants in the development
of a policy to oust Plaintiffs’ from their student leadership roles on either
the press or the student press. Bell’s
arranging to have the SCMB meeting cancelled is especially problematic because
Defendant Carter testified that she specifically instructed Bell, in a meeting
called by her, to convene a November 2000 meeting in order to hear Plaintiffs’
concerns. (Carter 30, 5-24) This
statement infers that Bell disregarded the instruction of his superior
administrator as one of the first acts in resuming his position as
administrative liaison.
The
November 2000 meeting was to have occurred following both Bell’s having
arranged to have university security (DPS), on October 25, 2000, detain
Plaintiff Hosty upon knowledge that she was investigating files in the vary same
filing cabinet wherein she had discovered evidence of his prior indiscretions.
There were two other students present (including Defendant Kammer), but of them,
only Hosty was detained and harassed by DPS.
Defendant Ferguson and Plaintiffs Barba and Porche arrived to the scene
at different intervals, and Plaintiff Porche was detained with Plaintiff Hosty
for approximately three hours. The other two students (including Kammer, and
also Defendants Ferguson and Hill), Plaintiff Hosty later discovered, received
illicit (monetary) stipend awards from Defendant Carter per a secretive
arrangement with Carter, in which Defendant Ferguson, with Defendant Hill’s
and Defendant Kammer’s assistance, created an illicit stipend policy in
violation of university-published policy, their oaths of office, the OMA of this
state, and trustees’ regulations), the funds of which were derived from an
account of Carter’s creation and doled out clandestinely.
This
offense is all the more reprehensible and suspect, not primarily because
Plaintiffs, due to the covert nature of said dealings, were denied by Defendants
a consideration for receiving stipends, but since Defendants Hill, Kammer, and
Ferguson were all members of the Student Fee Board (SFB), responsible for
working with the dean of Student Life (Carter) in apportioning budget money
received per student fees, which, once collected, become state funds. (6)
As
such, Plaintiff Hosty came to student Defendants (and Ceska) with questions
regarding what she detected as being anomalies in the fiscal accounts
________________________________________________________________________
(6) The other student present on October
25, 2000 was George Ceska III, fellow student senator, chair of the SFB, and
also a contributing creator of and recipient of the illicit stipends. He is also
one of the students, who, in addition to Defendant Kammer, provided DPS with a
(false) statement about the incident.
under Carter’s
auspices. Instead of attempting to
hold Carter accountable for clandestine spending, Kammer, Hill, and Ferguson
arranged for themselves to benefit from such practices.
Plaintiffs
Hosty and Porche, both executive members of the student senate, upon receipt of
knowledge that the attempt to secure the stipend money was being done in the
name of the student senate outside the
sanctioning of the student government (on which all student Defendants and
Plaintiffs sat), i.e., not in the public forum or at senate meetings with
official voting as to the agreement of the conception and terms of the awards
(which the recipients failed to meet, even per their own standards set forth in
the proposed policy), hotly
contested the propriety of student Defendants’ actions
via correspondence , and in
a series of (unofficial) debates with them, as the fulfillment of creating the
stipend policy outside of the official arena of the student senate but in its’
name would be a violation of their oaths of office, parliamentary procedure,
existent university policy, the Board of Trustees’ regulations, the university constitution, and even the OMA of
this state, and should rightly be construed as a misappropriation of state
funds—possibly even a violation of the Hobbs Act (i.e., if Carter agreed to
dole out the stipends in exchange for student Defendants’ silence about her
indiscretions or assistance in frustrating the efforts of Plaintiffs ), per
Plaintiffs’ research and talks with individuals at the Will County State
Attorney’s Office which
Plaintiffs Hosty and Porche have had. (7)
________________________________________________________________________
(7) That office also informed Plaintiff
Hosty that Carter and Bell might even be culpable for having committed acts of
official misconduct, (720 ILCS 5/33, per that office) a class-three felony
misdemeanor, since they were responsible for Plaintiff Hosty’s being detained
and subsequently denied access to files which could evidence misappropriation of
funds on their parts, as the denial of access to said files could benefit
Defendants.
Defendant
Kammer, in fact, received a stipend from Carter for chairing the SCMB for a
semester which saw him chair zero meetings, as Defendant Hill chaired the
September meeting, and the October, November, and December SCMB meetings were
cancelled. (8)
Herein,
a jury could return a verdict that the Defendants’ motives for cancelling the
meetings were not, in fact, reasonable, but acts of spite and self-preservation,
intentional obstacles committed against Plaintiffs for having discovered and
researching further Defendants’ offenses, as Plaintiffs fully made no secret
that they would seek to hold Defendants culpable to their infractions/possible
crimes. As such, Defendants were keenly aware that Plaintiffs could and would
report their findings in the INNOVATOR, and, Plaintiffs contend, fearing
exposure, Defendants did everything within their powers to cripple, shut down,
and just as importantly, keep down the presses. (9)
Plaintiffs,
by virtue of interviews, confessions, and absence of requisite proof which could
exonerate investigated parties, discovered, as early as their first week on the
student senate and (simultaneously) the second on the INNOVATOR, that the
university had, indeed, rigged awards, in which some of the Defendants had a
part. The series of break-ins began after Plaintiff Porche personally confronted
and then was verbally harassed by the administrator and coordinator involved in
the academic scandal, and after Plaintiff Hosty began to clash with Defendants
about the extra-curricular ones
________________________________________________________________________
(8) Plaintiff Hosty reported these illicit
stipends and the violative conduct of Carter and student Defendants to the
utmost of university authority, i.e., Carter’s administrative superiors, as
well as the Board of Trustees at one of its’ public meetings, each of which
took no action against offending parties therein, with the same course of
inaction being taken regarding constitutional violations reported to them by
Plaintiffs. **Defendant Keys and Fagan, as well as all trustee Defendants
originally named, were sent personal copies of Plaintiff Porche’s
“open letter” of November 16, 2000, which quoted the printing
agency’s letter citing Carter’s calls. Additionally, copies were sent of
Porche’s missive via intercampus email to all university employees possessing
campus email accounts.
It was all
downhill from there, and Plaintiffs contend that the offenses having been
committed against them were acts conspired by Defendants (named and otherwise)
to preclude publication of these and other matters investigated by Plaintiffs.
Plaintiffs,
due to Defendants’ activity/inactivity, were unable to amass enough material
evidence to publish some of their findings until approximately the time when the
press was entirely and effectively shut down in November
________________________________________________________________________
(9) As the offenses which Defendants
(named and otherwise) are alleged to have committed are not trivial, arguably
Defendants had much to lose if Plaintiffs were to investigate further and go
fully public with their knowledge of Defendants’ actions. Plaintiffs had
reported, investigated and were in the process of investigating leads provided
to them by confidential sources, i.e., university students, instructors, staff,
and retirees, which implicated Defendants in, amongst other things, acts of
unlawful conspiracy against students, misappropriation of state funds and
equipment, rigged university awards (both academic and extracurricular), illegal
hiring and firing practices, improper tenure being granted, the selling of
grades, illegal contracts, ghost pay rolling, negligent hiring, negligent
retention, comparable acts having been committed by some Defendants at previous
places of employment, consummate academic unprofessionalism, consumer fraud,
abuse of privileges, inadequate security, violation of the state’s Freedom of
Information Act (FOIA), the federal Campus Crime Awareness and Security Act,
Cleary Act, Family Education Right to Privacy Act (FERPA), invasion of privacy,
the altering of university records, discriminatory awarding of state tuition waivers, copyright infringement,
tax fraud, and failure to adhere to
the OMA of this state, university policies, and trustees’ regulations, to name
just a few of the more reprehensible allegations.
Plaintiffs concede that these are serious allegations, which is why
extended investigation would be requisite prior to publication, and also,
Plaintiffs contend, why Defendants have done everything in their powers to block
Plaintiffs’ ability to pursue these leads and to publish. Plaintiffs were able
to confirm some of these leads, and were in preparation to go to press with
articles dealing with them when Defendants succeeded in shutting down the paper.
As for the other leads, evidence was shaping up to substantiate those
allegations as well, but as a result of Defendants’ actions, the university
has not lawfully complied with requests made by Plaintiffs for material evidence
which could incriminate the university. This
is symptomatic of Plaintiffs’ struggle to both publish items and inform the
public, as well as to substantiate allegations made before this court; the
allegedly- guilty parties are, and have been, in possession of materials (or
have failed to keep them as dictated by law) which could properly incriminate
them, and have consistently refused to make them accessible to Plaintiffs.
Defendants have failed to respond to, quite literally, scores of missives sent
by Plaintiffs to them, and have failed to honor FOIA requests as far back as
June 2000, as early on as one month into Plaintiffs’ tenure as student leaders
at GSU.
2000
by Carter’s calls to the printing agency. There has not been a single issue of
the INNOVATOR since Plaintiffs’ last release of October 31, 2000.
It is now nearing sixteen months that the students have been without a
campus newspaper (10), despite the fact that several thousand dollars of their
collected fees were doled out, in part, by Defendants to
Defendants for the present fiscal year, which began on July 1, 2001 for the
university. Additionally,
Defendants continue to spend these fees (in violation of the OMA of this state),
despite
there being no
active media since Plaintiffs’ editorial tenures expired on May 1, 2001.
This crippling,
halting, and continued repression of Plaintiffs’ publication Defendants could
do since Defendant Bell exercised
undue influence on the SCMB (and acted independent of it even), and since
Defendants Kammer and Ferguson were voting
members of the SCMB, and therefore affected majority vote, in addition to
intentionally having withheld attendance from SCMB meetings (as did other
Defendants) in order to suppress the INNOVATOR.
During the January 2001 meeting (the first held since September 2000),
Plaintiffs
________________________________________________________________________
(10) Such a Herculean lapse would rightly
cause an uproar at an upstanding and principled institution of higher education,
but not so the case at GSU. Plaintiffs contend that it is because there are
primarily, per their experiences, two kinds of people at GSU: those who commit
offenses and don’t wish for them to be reported, and those who don’t care
that offenses are being committed, and so do not miss report of them. Plaintiff
Porche applied for renewal of her tenure to the SCMB as chief editor of the
INNOVATOR , but was denied renewal by that body as a result of her not
publishing enough issues or being in concordance with the Defendants’ offense
behavior, and hence have penalized her for an inability to produce due to their
own actions and of no fault of her own. The
INNOVATOR has not resumed publication, Plaintiffs contend, because Defendants
are aware that Plaintiffs are most likely the most qualified individuals to
assume the editorial positions, and are still eligible to serve in that
capacity, as they are still enrolled in classes at the university. The “keeping down” of the press, Plaintiffs contend, is a
design of the Defendants, to be maintained until such time as Plaintiffs
graduate and are no longer eligible to resume editorial positions and publish
articles about Defendants. Considering
the gravity of the allegations and the tenacity evidenced on the part of the
Plaintiffs, this is a highly reasonable “inference” or hypothesis on the
part of Plaintiffs.
taped
Plaintiff Hosty reading the OMA stipulations to the SCMB at the opening of that
meeting, and Defendant Bell threatening to remove Plaintiff Hosty by force (a
threat also formerly imposed on Plaintiffs’ advisor during the September 2000
SCMB meeting by Defendant Hill, and carried out by Bell against Hosty in
February 2001. (11)
In
fact, Defendants Bell and the SCMB members, in violation of both the OMA and
trustees’ regulations, prematurely stripped Plaintiffs of their editorial
positions the following month, February 2001, since Plaintiffs persisted in
their complaints. (The suit had already been filed by Plaintiffs, but Defendants
persisted in their offenses, which, again, should speak to an absence of good
faith on their parts.) Plaintiff
Hosty notified Defendant Fagan, in her capacity as vice-president of the student
senate, sending him an email on March 7, 2001 requesting a confirmation that he
had authorized the illicit actions of the SCMB, citing the trustees’
regulations which forbade such action. Plaintiffs were mysteriously re-appointed
to their positions the week following their illicit removal (as such, were
impeded from publication for an entire week, having no authorization to access
the press office), of which they were informed by email. Interestingly enough,
however, is the fact that Fagan, per usual, never responded to Plaintiffs’
correspondence, and yet an administrative request apparently had
________________________________________________________________________
(11)
Hosty had provided Defendants had repeatedly warned Defendants of violations and
provided them with copies of the Illinois OMA months earlier, obtained by the
Illinois Board of Higher Education’s (IBHE) officer Donald Sevener, who faxed
it Plaintiff Hosty upon her request following OMA violations having been
committed against them already. This
was done in order to demonstrate to Defendants that GSU was liable to adhere to
the act, a fact confirmed to Plaintiff Hosty and Defendant Hill in September
2000 by the university’s trustee liaison, Ms. Ginger Ostro.
At the January 2001 meeting, Plaintiffs have on tape Defendant Bradley
stating that she didn’t care if she was breaking the law and was dragged away
in handcuffs so long as Plaintiff Hosty (a member of the public entitled to be
present for the meeting per the OMA) was forced to leave, and Defendant Ferguson
affirming the statement with an enthusiastic response of “That goes double for
me.” Such statements can hardly
be construed as being indicative of good faith on the part of the Defendants
against the Plaintiffs.
been made for the SCMB to reinstate us.
Bell testified that the idea was entirely the SCMB’s (Bell 67, 23-24),
yet Plaintiffs discovered in the senate email account (to which they were both
entitled to access by virtue of their senatorial positions) an email from Bell
to SCMB members to meet for purposes of overturning their illicit decision to
remove Plaintiffs, citing “administrative request” for the convening. (This
meeting was also held in violation of this state’s OMA, incidentally.)
Yet Bell’s March 8, 2001 email citing administrative request and Plaintiffs being inexplicably restored to their editorial positions both occur on the very day after Plaintiff Hosty emailed Fagan about the trustee violations. As such, Defendants, despite the fact that they were charged already with violating Plaintiffs’ rights, persisted in doing so, and that Bell, again, perjured himself under oath. Yet the District Court virtually upholds Defendants’ testimonies and Defense’s arguments as being truthful beyond a reasonable inference, which it should not have in the rendering of its opinions. (12)
The District Court, moreover, has stated that the cancellations of SCMB meetings were both reasonable and legitimate. Nothing could be further from the truth. Aside from the fact that the manner in which the cancellations occurred violated this state’s OMA (including discussion and determination of that body’s affairs by a majority of the quorum outside the public arena), the determination of the Defendants as being reasonable for cancellation (an illogical and highly-questionable argument offered by Defense and erroneously assumed/upheld by the District Court) must be called into scrutiny. Defendant
________________________________________________________________________
(12)
Defendant Bradley, the same as most other Defendants, was under investigation by
Plaintiffs per the circumstances surrounding her hire; Bradley was a former
student senate president who inferred to Plaintiffs early on in their
acquaintance that she had caused some friction for the university when
contesting its propriety regarding the utilization of computer fees charged to
students, and informed Plaintiffs Hosty and Porche, in the very next breath, no
less, that “GSU rids itself of problematic students by hiring them.”
Bradley was subsequently hired by GSU to work in its computer lab, and
all investigation of the computer fees were suspended until Plaintiff Hosty
resumed them upon discovering what she perceived to be anomalies in the stated
and actual usage of the money on the part of the university.
Gunther, for at
least one occasion, has affirmed to the court that the reason an SCMB meeting
was cancelled was because members of that body had determined there were no
issues to be discussed, and therefore no cause to meet. (Gunther 2, item 7) Yet
Plaintiff Porche, an ex officio member
of that body, informed Defendants that there were, indeed, issues to be
discussed, and rightfully insisted that a meeting be convened.
The mission statement of the SCMB is “to support student media at GSU,
” yet Bell testified that meetings were cancelled as a matter of the whim of
the SCMB, as that body took it upon itself to determine whether there was any
need
to convene, which utterly denies the public an opportunity to address
that body how it allocates state funds apportioned to it, and which precludes
the media which is intended to support from publicly making its concerns known
to that body—this, in effect, prevents there being any public record of
disapproval against the SCMB since no minutes can exist of meetings which were
not held by illicit rule of that body.
It is unfathomable that the District Court could buy into such a weak and ineffectual excuse as offered by Defendants, then that there were no issues to be discussed, in light of Plaintiffs’ announcement to the community about Carter’s infractions and Plaintiffs’ detention and denial of free access for approximately five weeks to the press office. Or that Plaintiffs didn’t care to address Defendants of failure to receive Plaintiffs’ ordered equipment, or their advisor having been fired (Plaintiffs were not even notified of this, as Carter did not even forward Plaintiffs a copy of the December 7, 2000 dismissal letter sent to their advisor), or the indefinite withholding of Plaintiffs’ budget. (13)
________________________________________________________________________
(13)
Defendants perjured themselves about the accessibility of the Plaintiffs’
budget to the extreme, but that argument must wait to be addressed in a
cross-appeal, as it would considerably extend this already lengthy memorandum.
Plaintiffs also contend that they personally, and by hand, provided Defendant
Ferguson with a copy of the printing agency’s letter prior to the date
scheduled for the November 2000 meeting of the SCMB.
Just as importantly, even if the District Court does not recognize these issues as being reason for convening on the part of the Defendants (a position surmised by reason of its’ ruling aligning with Defendants’ paltry and illogical argument), it must be remembered herein that the sole purpose of the SCMB is to support the student media, and therefore, Defendants decided to cancel a meeting because it felt there were no issues to be discussed, but in doing so, denied Plaintiffs an opportunity to appear before them in order to bring issues before that body. In other words, it is simply not feasible that the SCMB could honor its’ mission statement of supporting the student media in denying that media the opportunity to bring forth issues which would require support of the SCMB; the SCMB cannot assist the media if it denies that media an opportunity to inform the SCMB the matters in which it requires assistance. Plaintiffs are nothing short of being genuinely astonished, therefore, that the District Court could rule in favor of Defendants by failing to readily discern the hypocrisy and utterly illogical argument offered by Defense, especially in consideration of the documents inclusive to the public record which resoundingly refute Defendant testimony.
There is far more to this complaint
than readily meets the eye, and Defendants had both the means
and the motives to impede Plaintiffs’ First and Fourteenth Amendment rights,
i.e., to shut down the press and to keep it down. (As such, their having
benefited from Plaintiffs’ inability to report their findings and expose
Defendants’ duplicity may be seen as acts of official misconduct on their
part.)
The
previous example addresses merely one aspect of Plaintiffs’
multi-faceted complaint, and, therefore, the complexity of this case, the extent
of the duplicity on the part of the Defendants, and the scope of the offenses
(and that which Defendants have so arduously attempted to suppress from
appearing in Plaintiffs’ publication) should be abundantly aware to this
court.
It is not for no reason that the
Defendants have so arduously attempted to suppress Plaintiffs’ publication;
Plaintiffs contend that they have heard, witnessed, and experienced acts
committed by Defendants (named and otherwise) which are frustrating,
frightening, and infuriating from the standpoint of students, student leaders,
taxpayers, and patriots.
There is also more evidence having been provided during written discovery
which could substantiate Plaintiffs’ allegations, as well as evidence
Plaintiffs contend they do not have access to and which Defendants did not
supply during the course of written discovery, such as phone logs, police logs,
Physical Plant Operations (PPO) logs (which track keys being supplied to
Plaintiffs’ press room), or internal email, which Plaintiffs cannot possibly
access save by subpoena.
For
example, Defendants did not submit a copy of Bell’s email to SCMB members
petitioning them to reinstate Plaintiffs to their editorial positions, as
Defense has argued in its’ motion for summary judgment that since the event
occurred following the initial offenses listed in the complaint, the second
denial of access is inconsequential to the suit.
Plaintiffs contend however, that it is demonstrative of Defendants’
continued, willful disregard of Plaintiff’s rights, and speaks to the absence
of good faith on the part of the Defendants towards Plaintiffs: the Defendants,
having been granted immunity by the District Court, persist in violating
Plaintiffs’ constitutional rights. (Yes,
Plaintiffs have garnered additional evidence to support this allegation, that
the Defendants have, in essence, equated immunity with impunity.)
This is not entirely an unfounded argument on the part of the Plaintiffs,
given the fact that Plaintiffs have herein demonstrated that Defendants have
perjured themselves under oath, and therefore should be suspect of dealing
ethically or adeptly in these court proceedings (14).
________________________________________________________________________
(14) Defense has argued that Plaintiffs
contradicted their own testimonies regarding the locks to the press office
having been changed, but that is patently untrue, although owing to the length
of this document already, Plaintiffs are constrained to demonstrate in this
memorandum the falsehood of Defense’s claim, but can readily do so in a
cross-appeal.
It
is because of the highly complex nature of this suit that it should and possibly
can only be tried before a jury, as briefs and memorandums are hardly sufficient
to cover the scope of this complaint, which should be apparent to this court by
the sheer volume of this memorandum, as it provides mere
examples instead of full exposition of all offenses having been committed
against Plaintiffs. The District
Court has wrongly asserted that the Defendants explanations are patently true
and also that Plaintiffs do not dispute them, this in the face of material
evidence which implies considerable motive and in apparent disregard for
legislation which should rightly govern Defendants’ behavior.
Per
the District Court’s own opinion of November 13, 2001, “Summary
judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ. P. 56c; Celotex
Corp. v. Catrett, 477 U.S. 317,322 (1986); King
v. Nat’l. Human Res. Comm., Inc., 218 F.3d 719, 723 (7th Cir. 2000)…The
court considers the record as a whole and draws all reasonable inferences in
light most favorable to the party opposing the motion. Bay v. Cassens Transp. Co., 212 F.3d 969,972 (7th Cir.
2000) A genuine issue of material
fact exists when ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’ Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596,599 (7th Cir.
2000).” (Section I, Standard of review, Pgs. 6-7)
It
is not the judge's role to determine "the truth of the matter," Big
Apple BMW, Inc.v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)
(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)),
cert.
denied, 113 S. Ct. 1262 (1993), in light of all
the evidence. Rather, summary judgment must be denied "if the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party." Liberty Lobby, 477 U.S. at
248. The District Court granted summary judgment because it concluded that
there was no genuine issue of material fact.
That judgment cannot be sustained if the Plaintiffs]advanced even a
"mere scintilla" of evidence. Big
Apple, 974 F.2d at 1363
Accordingly,
if Plaintiffs met that standard, summary judgment was improper even if, in the
court's view, Defendants’ evidence was weightier. Ibid. The evidence, and the inferences drawn from it, must be viewed
in the light most favorable to the Plaintiffs; if Plaintiff's evidence
contradicts Defendants’, then Plaintiffs’ must be taken as true.
Ibid.
And Plaintiffs need only demonstrate that the inferences it draws from
the evidence are reasonable, not that they are the only possible inferences.
Eastman Kodak Co. v. Image
Technical Services,
Inc.,
112 sect. 2072, 2083 (1992).
The extensive example cited just previously should adequately demonstrate to this court that, regardless of the record and Plaintiffs’ reasonable inferences, the District Court ruled in a light most favorable to the Defendants. Certainly a reasonable jury could return a verdict for the nonmoving party that, given the circumstances of the climate in which Plaintiffs were embroiled with Defendants for other offenses having been committed by Defendants and which could and would have appeared in Plaintiffs’ publication, Defendants acted in willful negligence and malice against Plaintiffs, i.e., out of spite and self-preservation. Of course, Plaintiffs will cite one more example in which the District Court inappropriately granted summary judgment to Defendants, as brevity will not permit Plaintiffs to address each of the allegations listed in the original complaint, and to emphasize the District Court’s impropriety per this determination on its’ part.
In
section 24(g) of Plaintiffs’ original complaint, Plaintiffs contend that the
denial of office equipment for the press room, specifically annotated as being a
facsimile machine (although more properly titled “equipment, because of denial
to Plaintiffs of cameras and a layout printer as well), however Defendants never,
in all of Defense’s arguments, address this complaint in terms of reasons or
motives as to why Plaintiffs were denied said equipment.
Defense, therefore, instead of sufficiently addressing the complaint,
reduces the complaint to one of insignificance, which the District Court has
erroneously upheld.
Plaintiffs
hotly dispute the relevance of the denial of this equipment, which the District
Court seems to entirely disregard, despite the fact that the record contains
material evidence which could corroborate Plaintiffs’ contentions about the
confidentiality requisite to investigations, and therefore the content of their
publication, being adversely affected/impeded in denial of said equipment.
Plaintiffs were originally granted authorization to process the order for the
facsimile machine, as all relevant signatures appear on the purchase order
prepared by Plaintiff Hosty (despite Defendants Bell and Conway affirms being to
the contrary), after which date Plaintiffs Hosty and Porche confronted and
contested the actions of Defendants Bell, Carter, and Defendant members of the
SCMB. Following the increasing
hostility of the university climate as a result of Plaintiffs’ findings and
confrontations, Plaintiffs were unexpectedly and without explanation denied the
equipment previously sanctioned by aforementioned Defendants.
The
timeliness of this denial should not be overlooked per this regard, as the
denial could reasonably be determined by a jury to have been an act of spite or
self-preservation on the part of the Defendants herein, as it not merely
unnecessarily hindered Plaintiffs’ ability to publish certain articles
requiring research materials and confidentiality of sources (hence it affected
content, which exclusively falls to the right of the editors), but Defendants’
denial of the equipment cited successfully foiled Plaintiffs’ attempts to
garner information which could incriminate the Defendants for other offenses.
Each of the Defendants, by virtue of their employment and ties to Student
Life (Defendant Kammer worked at the very station in which the public facsimile
machine was located), could access the transmissions sent to the Plaintiffs.
Plaintiff Porche has testified that she did not receive confidential
transmissions sent to her about administrative hiring offenses Plaintiffs were
investigating, despite the fact that she was at the public facsimile machine
within moments of the transmission. The
transmission pertained to Defendant Carter, whom Plaintiffs had been informed
by a source was hired in violation of university regulations and federal
Equal Employment Opportunity Commission (EEOC) mandates. (15)
Defendant
Bell, whom Plaintiff Hosty had already established to his superiors committed
offenses regarding state funds and equipment, helped himself to Plaintiffs’
transmissions without their prior knowledge or consent on a number of occasions,
evidenced in Bell’s own script on a memorandum to Plaintiffs in the record for
at least on instance in order to demonstrate such behavior. As such, it is
reasonable that a jury could return a verdict in favor of the Plaintiffs that
denial of the facsimile machine by
Defendants impeded their ability to publish since it inhibited severely
Plaintiffs’ ability to publish content about
Defendants and other parties allied with Defendants. (This is the same argument,
essentially, in the Defendants denying Plaintiffs safe handling and receipt of
their mail, and failure on the part of the university to secure Plaintiffs’
office equipment, materials, and belongings, as confidentiality is compromised
in the collection and retention of materials gathered for the sake of
publication.)
In
consideration of Plaintiffs’ complaint, which cites their “reasonable
inference,” and the material evidence in the record of Defendant Bell’s
having accessed Plaintiffs’ transmissions, the District Court inappropriately
granted Defendants summary judgment. As
such, the District Court has erred in usurping the powers typically reserved for
a jury, and in doing so, therefore
________________________________________________________________________
(15) Plaintiffs have secured an assurance
of testimony on their behalf at trial by the individual having sent the
transmission-in-question, who is neither party to the suit, nor has in any way been employed by or a student of the university.
denied
Plaintiffs the “remedy and
justice” guaranteed to them per this state’s constitution. (Article 1,
section 2)
Defendants were erroneously granted qualified immunity
by the District Court
` The
District Court, in its’ opinion of November 13, 2000, states that
“’government officials performing discretionary functions, generally are
shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Upton v. Thompson, 930 F.2d 1209, 1211-12 (7th Cir. 1991)
(quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Plaintiffs bear the burden of showing that defendants’
conduct violated a clearly established constitutional right. ’This requires
the plaintiff[s] to offer either a closely analogous case or evidence that the
defendants’ conduct is patently violative of the constitutional right that
reasonable officials would know without guidance from the courts.’ Baxter
v. Vigo County Sch. Corp., 26 F.3d 728, 737 (7th Cir. 1994).”
(Section III, Pg. 8) The District Court then faults Plaintiffs by stating
that “Plaintiffs do not present
any case law that establishes a right to a certain type of computer or creates
an affirmative duty on university officials to investigate crimes…Nor do they
cite case law to support their claim.” (Section III, pg. 9)
Yet
the U.S. Supreme Court has ruled that such a standard is not always either
feasible or beneficial, offering: “Nor
have our decisions demanded precedents that applied the right at issue to a
factual situation that is ‘fundamentally similar’ at the level of
specificity meant by the Sixth Circuit in using that phrase. To the contrary, we
have upheld convictions …despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights. See United States
v. Guest, 383
U.S. 745, 759 n. 17 (1966); United States v. Saylor, 322
U.S. 385 (1944); United States v. Classic, 313
U.S. 299, 321 -324 (1941) But even putting these examples aside,
we think that the Sixth Circuit's ‘fundamentally similar’ standard would
lead trial judges to demand a degree of certainty at once unnecessarily high and
likely to beget much wrangling. This danger flows from the Court of Appeals'
stated view, 73 F. 3d, at 1393, that due process …demands more than the
"clearly established" law required for a public officer to be held
civilly liable for a constitutional violation under §1983 or Bivens, See Anderson v. Creighton, 483
U.S. 635 (1987) (Bivens action); Davis v. Scherer, supra, at 183 (§1983
action). This, we think, is in error...In the civil sphere, we have
explained that qualified immunity seeks to ensure that defendants ‘reasonably
can anticipate when their conduct may give rise to liability,’ id., at 195, by
attaching liability only if ‘[t]he contours of the right [violated are]
sufficiently clear that a reasonable official would understand that what he is
doing violates that right,’ Anderson,
supra, at 640.
So
conceived, the object of the ‘clearly established’ immunity standard is not
different from that of ‘fair warning’ as it relates to law ‘made
specific’ for the purpose of valid[ation]…The
fact that one has a civil and the other a criminal law role is of no
significance; both serve the same objective, and in effect the qualified
immunity test is simply the adaptation of the fair warning standard to give
officials (and, ultimately, governments) the same protection from civil
liability and its consequences that individuals have traditionally possessed in
the face of vague criminal statutes. To require something clearer than
‘clearly established’ would, then, call for something beyond ‘fair
warning.’ …. But general statements of the law are not inherently incapable
of giving fair and clear warning, and in other instances a general
constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though ‘the very
action in question has [not] previously been held unlawful,’ Anderson,
supra, at 640.
As
Judge Daughtrey noted in her dissenting opinion in this case,… ‘ There has
never been . . . a section 1983 case accusing welfare officials of selling
foster children into slavery; it does not follow that if such a case arose, the
officials would be immune from damages [or criminal] liability.' " 73 F.
3d, at 1410 (quoting K. H. Through Murphy
v. Morgan, 914 F. 2d 846, 851 (CA7 1990)); see also Colten v. Kentucky, 407
U.S. 104, 110 (1972; Williams v. United States, 341
U.S. 97, 101 (1951)... Because the Court of Appeals used the
wrong gauge in deciding whether prior judicial decisions gave fair warning that
respondent's actions violated constitutional rights, we vacate the judgment and
remand for application of the proper standard. It is so ordered.” United
States v. Lanier, S. Ct. (1997) This
flexibility in citing analogous incidents and precedent legislation, in fact,
makes perfect sense on the part of that court since not every complaint
appearing before a court will have legal precedence to which it can infer,
especially true when considering that it was not possible to cite analogous or
precedent cases in support of argumentation in suits pertaining to the first
suits dealing with, say, frozen embryos and the Internet.
It stands to reason, therefore, that simply because no other individuals
have attempted to demonstrate to the court the deleterious impact of what a
denial of equipment to a newspaper could have on a publication does not
mean that such action does not impede the press or that the courts should
refuse to hear complaints of this nature and thereby establish legal precedence per this regard.
Moreover,
Plaintiffs had submitted material evidence in the course of written discovery
which directly cite the university’s acknowledgment of its responsibility to
judiciously investigate the reported break-ins (and to inhibit further instances
of such) reported by Plaintiffs, as well as to afford them due process, freedom
of speech, and a plethora of other protections. The
“GSU Student Leader & Student Organization Handbook” (1993) affirms
that “Student Life is charged with the responsibility for the development,
implementation, and maintenance of all Student Life programs, activities,
services, and facilities on campus.” (Pg. i, and penned, no less, by Defendant
Dascenzo)
The “GSU Student Handbook” (2000) states that “As a university
student you are a member of the academic community at Governors State
University. As a member of the
academic community you are entitled to all the rights and protections enjoyed by
all members of society…You are also subject to all civil laws, the enforcement
of which is the responsibility of duly constituted civil authorities.” (Pg.
58) Implicit in this statement is Defendants’ knowledge that they should have
afforded Plaintiffs’ said rights and protections, as well as held accountable
those who infringed them.
The
District Court has granted qualified immunity to Defendants Keys, Fagan, Wells,
and Woodard because it states that “Plaintiffs must show Keys and Fagan were
personally involved in unconstitutional conduct, or that they approved or
facilitated the conduct…Plaintiffs also fail to present any evidence that Jane
Wells or Peggy Woodard participated in constitutional violations.”(Section II,
Pg.8) Yet each of these administrators, in failing to afford Plaintiffs the
rights guaranteed to them by virtue of the Fourteenth Amendment (due process), facilitated
the constitutional violations. Defendant Fagan, immediately following
Plaintiff’s last issue of the INNOVATOR, posted malicious, defamatory
materials throughout the campus in response to an article published by
Plaintiffs in which he and Wells came off in a poor light.
At no point did Fagan attempt to submit a complaint via the SCMB
(mandated by university-published policy), request a substantiated retraction in
a subsequent issue, or contact the Plaintiffs to validate what they had
reported. As such, Fagan’s inactivity, or rather his failure/refusal to
properly investigate reports of Carter’s phone calls halting the press could
be construed as being approval on his part or a sanctioning of Carter’s
illegal behavior because he benefited from it since no further articles could be
published which placed him in a poor light. This speaks to motive, as well as to
a need for scrutiny on any defense of having acted in good faith towards the
Plaintiffs.