Gerry Schulze's Blog

Teacher Fair Dismissal Act Victory

posted Apr 6, 2012, 10:59 AM by Gerry Schulze   [ updated Apr 10, 2012, 11:52 AM ]

Teacher Fair Dismissal Act Victory

4/6/2012

We have a favorable result in the case of Bismarck School District v. Sims, 2012 Ark. App. 239.  We represented a school counselor who was wrongfully discharged from his position.    Sims was dismissed based on allegations that he had failed to assure that all students had enough credits to graduate.  Sims appealed his dismissal to the Bismarck School District, which upheld the decision to discharge him.  Sims then challenged the dismissal in Circuit Court under the Teacher Fair Dismissal Act.

A trial was held on Sims’s appeal on December 9, 2010.  Subsequent to the trial, Circuit Judge John Cole called for briefs by the attorneys for Mr. Sims and for the district.  After the briefing was complete, Judge Cole issued a memorandum opinion and entered judgment in favor of Sims.
 
Judge Cole found that the discharge of Sims was in violation of the Teacher Fair Dismissal Act of 1983.  Before 2008, the Arkansas Department of Education required that students have three math credits in order to graduate.  The Department of Education increased the requirements for graduation to four for students who would graduate in 2009.  Notice of the change was sent to the superintendent of the school district and the principal, but it was not provided to Sims.  The Judge noted that Sims had followed the official Student Handbook which had been approved by the School Board.  Sims acted in reliance on the Student Handbook, as he was required to do.  There was no evidence of just and reasonable cause for Mr. Sims to be discharged.  The discharge was arbitrary, capricious, and unsupported by substantial evidence.  The Court, therefore, found that the discharge violated Arkansas law.

The Court awarded Sims a total of $44,377.03 in damages.  The court ruled that reinstatement was not appropriate because of the length of time that had passed between the discharge and the conclusion of the legal proceedings.
The school district appealed the case to the Court of Appeals. The Court of Appeals upheld Judge Cole's decision.  The Court of Appeals noted that:

While the District goes to great lengths to establish that Sims bore all of the responsibility for ensuring that students obtained the required credits to graduate and that the problems that occurred in 2007–2008 and 2008–2009 were entirely Sims’s fault, the facts do not support this assertion. Moreover, the trial court obviously found Sims’s testimony credible, and we do not disturb credibility findings on appeal. Kasinger, supra. Further, with regard to the accuracy of the 2008–2009 student handbook, Hopkins admitted that there was “a breakdown” in a review process in which Sims was not involved. Further, the contents of the 2008–2009 student handbook, having been adopted more recently than board policy, controlled over the correct information found in the District’s policy book. Accordingly, even if Sims had consulted the District’s policies, the incorrect information found in the 2008–2009 student handbook was the final authority. It is neither just nor reasonable to hold Sims to a standard far higher than that of “the professional educator charged with operating the school and for the School Board, elected officials charged with the ultimate responsibility for the District.” Under these facts, we cannot say that the trial court clearly erred in finding that Sims’s nonrenewal was in violation of the Act.

Id. p. 11.

There was also an issue involving the District's failure to comply with the requirement of the Act that school districts must provide employees with regular evaluations.  The Court of Appeals noted that the district failed to comply with the law.

Update, 4/10/2012

This case was covered in the Malvern Daily Record.  I'm glad we got some notice.
 
 

Continuing Legal Education 2012

posted Mar 29, 2012, 9:29 AM by Gerry Schulze

I am a supporter of Continuing Legal Education.  I participate in Continuing Legal Education programs as much as I can. I frequently work with National Business Institute, which has a long-standing reputation for putting together  high quality continuing legal education classes all over the country.

 I have probably taken on more than I should the first half of this year.  On February 29 I did two sessions for "Handling Complex Auto Insurance Coverage Disputes.  I covered "no fault" and the ethics hour.  

Then my good friend Jim Jackson had to be out of town during his scheduled presentation in Advanced Trial Tactics.  I put together a quick PowerPoint (borrowing some of the material from a PowerPoint presentation Jim had done plus adding some material of my own.  I think it went well.

I am scheduled for two sessions in Social Security Disability, from Start to Finish, on May 8, 2012, a session in Auto Injury Litigation from Start to Finish (I have the "start" part) on May 23, 2012, and then "Find it Free and Fast on the Net; Strategies for Legal Research on the Web the next day.  

Then I've also agreed to serve as the moderator for "Anatomy and Physiology 101 for Attorneys."  I have absolutely no medical training, so I don't hold myself out as an expert on the field.  But I've dealt with disability and injury cases for almost 30 years, so I have a lot of experience asking experts to explain these issues to me.  That must be what qualifies me to moderate this program.  NBI has lined up some very qualified experts to actually discuss the issues.

I highly recommend these programs.  I think it is extremely important for us, as lawyers, to keep up with developments in the field.

I enjoy ethics the most, because ethics sessions allow me to get people talking.   You can see some of the ethics hypotheticals in the handout for Advanced No-Fault issues and Legal Ethics in the Digital Age.  We had a very interesting discussion during the Advanced No-Fault course, and I'm hoping for an even more vigorous discussion in the "Legal Ethics in the Digital Age" session.

I'm attaching some of the materials from these courses if you are interested in reading more about these courses.

Another Challenge to the Civil Justice Reform Act

posted Jan 13, 2012, 11:30 AM by Gerry Schulze

The Arkansas News covered my oral argument before the Arkansas Supreme Court yesterday (Thursday, January 11, 2012).  I had the privilege of representing Teresa Broussard in a challenge to a section of the Civil Justice Reform Act of 2003.  The oral argument can be seen on the Arkansas Supreme Court's webpage.

Ms. Broussard was under the care of a nephrologist and a general surgeon. She entered the hospital for purposes of surgery. The surgery went on as planned, however Ms. Broussard was severely burned during surgery. We do not know how the burn occurred. Ms. Broussard originally hired another lawyer who investigated the case on the theory -- not unreasonable -- that something must have gone wrong in the operating room for a woman to come out of surgery with a severe burn on her chest. At some point after taking on the case, that lawyer retired and Ms. Broussard had to find another lawyer. By the time she came to us the case had already been filed and was pending before the court.

Ms. Broussard had found an expert witness, Dr. Terence Baker, Dr. Baker is board certified in many areas, including family medicine and forensics.  Dr. Baker was not a specialist in the fields of nephrology or general surgery. After much investigation, we were unable to determine the cause of the fire. The best explanation, which isn't a very good one, is that she suffered an allergic reaction to betadine.   The reason that explanation was not terribly satisfactory is that she had been exposed to betadine on numerous occasions without any reactions in the past. 

Dr. Baker was more concerned with the care and treatment Ms. Broussard got after the surgery. Both the nephrologist and the surgeon saw her several times after the surgery. They recognized that they did not know what to do about burns.  That is not terribly surprising. Burn care is not in the expected area of practice for a nephrologist, and even a general surgeon has only limited exposure to patients with burns. Dr. Baker's problem with the care Ms. Broussard received was that regardless of his specialty, if a doctor recognizes that something is outside of his field of expertise, he should immediately find someone with the proper expertise. This was particularly true given the severity of the burns reported by Ms. Broussard.

Ms. Broussard was released from the hospital but re-hospitalized a few days later. After being released from the hospital the second time Ms. Broussard called her nephrologist and basically told him that she was going to the burn center in Tulsa, Oklahoma. With that, the nephrologist reluctantly granted her a referral.

At the burn center, it was determined that Ms. Broussard's burns were serious. She ultimately required extensive treatment. Dr. Baker testified that had Ms. Broussard been sent to the burn center when she should have been, the amount of treatment necessary and the amount of scarring that resulted would have been significantly reduced.

The nephrologist and the surgeon asked the trial judge to dismiss the case on summary judgment. Their argument was that Dr. Baker was not qualified under the Civil Justice Reform Act because he was not of the "same specialty" that they were.

Our response to that argument was that insofar as the tort reform act required a doctor to have the status of practicing in the same specialty as the defendant, it violated Amendment 80 to the Arkansas Constitution.  Rules regarding pleading, practice, and procedure in court are delegated exclusively to the Arkansas Supreme Court under that amendment. The Arkansas Supreme Court had promulgated a rule for determining whether an expert witness should be allowed to testify in a civil case. The legislature's insertion of a requirement that that expert witness also show that he practices in the same field as the defendant was an unconstitutional infringement on the authority of the Supreme Court.

The trial judge rejected that argument and held that Dr. Baker would not be allowed to testify against the defendants. He granted summary judgment for the doctors. We appealed.

All branches of government in Arkansas -- judicial, legislative, and executive -- have a duty to follow the Arkansas Constitution. At the time the Civil Justice Reform Act was passed, many commentators told their representatives that some of the provisions of violated the Arkansas Constitution. The legislature felt otherwise, and passed the act.  

Up to now several provisions of the act have been struck down as unconstitutional. See also Summerville v. Thrower.  We feel that the Arkansas Supreme Court's decisions in those cases strongly supported our position.

The matter is now before the Arkansas Supreme Court. I had the privilege of arguing the case before the court, and now I've also had the privilege of getting my name in the paper once again.  Whatever the result, I will post an update when the Supreme Court rules.

United Coaltion of Reason v. Central Arkansas Transit Authority et al.

posted Jun 1, 2011, 8:34 AM by Gerry Schulze

June 1, 2011.  Gerry Schulze filed suit this morning on behalf of the United Coalition of Reason.  The facts of the case are set out in our Complaint, Motion for Preliminary Injunction, and Brief.  This case has attracted some media attention.  In order to respond to some of the inquiries about this case, we have posted our Complaint, our Motion for Preliminary Injunction, the Brief in support of the Motion, and copies of the exhibits on this page.  If you have any further questions you can contact me, Gerry Schulze, at gschulze@b-s-m-law.com.

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