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Civic Skinny

Bubu’s plight: It’s about justice, not basketball.

1/22/2014

Consider the odd case of Bubu Palo and university justice.

Bubu Palo was, or maybe is, a basketball player at Iowa State. He went to Ames High School, and he is a good student and a good athlete.

On Sept. 18, 2012, the Story County Attorney charged Palo with sexual abuse in the second degree following a complaint by a female student about an incident in the early morning of May 18, 2012. In September, too, he was charged by the university’s Office of Judicial Affairs with violating the University’s Code of Conduct, alleging sexual misconduct. He was suspended from the basketball team.

In January of 2013, the state charges were dropped. Among other things, according to court papers, the woman’s credibility was an issue. Palo was then put back on the team, and he played in 17 games last season. The woman, never named in court papers, graduated and moved out of state.

But the university didn’t drop its own charges. The matter went to John Priester, a state administrative law judge, who heard 10 hours of testimony. He, too, decided the accusations were “not founded,” that Palo had not violated the university’s code of conduct.

The university appealed. And this is where university justice is so odd: The university in effect appeals to itself. The person who decided the appeal by the university was the university’s president, Steven Leath. Not surprisingly, he overturned the administrative law judge and on Aug. 30 ruled in favor of the university that he heads. He heard no witnesses and took no testimony; he simply reviewed the tapes and transcript and rendered his decision. He kicked Palo off the team — but not out of school. And Palo kept his athletic scholarship.

A few days later, Palo appealed to the Board of Regents, the men and women who hired Leath and who are his bosses. The Regents didn’t seem in any hurry to address the issue, but 90 days later, on Dec. 5 — after the basketball season was under way — the board, again not surprisingly, upheld Leath’s ruling and adopted it without changing a word.

Palo then went to state court. A hearing was held Jan. 10 — neither the woman nor her lawyer appeared — and the Attorney General’s office argued that there really was no issue because playing college basketball “is a privilege and not a right.” But by now, the case had become about justice, not basketball, and last Thursday district judge Thomas Bice put the Regents’ ruling on hold. He had some blistering things to say about “troubling facts” in the processes of Iowa State and the Board of Regents.

He noted that Leath waited more than two months to make his decision — and ruled five days after the deadline for Palo to transfer to another school to use his final year of eligibility.

He noted the Regents decision is “at best, short and contains neither discussion nor analysis of the underlying facts of the case. On first blush, the decision appears to simply be a ‘rubber stamp’ of President Leath’s decision, even though it took three months to render.”

He noted the Board of Regents “alleges that granting a stay would interfere with the University’s ability to protect the complainant,” and says this is “not sustainable in that the complainant…no longer” lives in Iowa.

Finally, he noted the Board of Regents “also alleges that having Mr. Palo on the ISU basketball team tarnishes the University’s reputation and presents a threat to other students.” “If this is true,” the judge said, “then why renew Mr. Palo’s scholarship, allow him to remain a student in ‘good standing,’ and have full and unrestricted privileges as an ISU student, other than participating in basketball? Further, if these claims are truly believed, then why was he reinstated to the basketball team during the 2012-13 season and allowed to participate in 17 games?”

No one has yet answered those questions.

Or figured out Palo’s status as a basketball player. …

Meantime, the Iowa Supreme Court this week will hear an appeal in a case involving Iowa’s other favorite sport, politics. It’s a defamation case, and it involves an ad Democrat Rick Mullin ran against Republican Rick Bertrand in a state legislative race in Sioux City.

The ad contained several true statements, but taken together, district judge Jeffrey Poulson ruled, they can imply something other than the truth. It’s a concept called “implied libel” — though “inferred libel” seems more accurate — and if the judge is upheld there will be much anguish in political ad shops and newsrooms. Political speech has the highest protections under the First Amendment, but when is truth not a defense? When do two truths, or three or four, add up to libel? Is defamation in the ear of the beholder?

It would be a good question on a bar exam. Oh, wait, there might not be any more bar exams. CV

 

 

Comment: Chief Justice Cady

The lovely history of justice in this state is well-documented and often-chronicled. Iowa had its Miss Coger 82 years before the nation had Rosa Parks. Iowa had young Susan Clark 90 years before the nation had Little Rock. The very first case the Iowa Supreme Court decided stopped bounty hunters from spiriting back to Missouri a slave who was buying his freedom on the installment plan — and ruled that slavery would not exist in this state. Then, in 2009, Iowa’s Supreme Court ruled that under the Equal Protection clause of the Iowa Constitution people of the same sex had a constitutional right to marry one another.

That history is something every Iowan should be proud of — a history that regularly gives life to the state’s great motto, “Our Liberties We Prize and Our Rights We Will Maintain.”

But every Iowan, too, should be proud of the state’s court system for other reasons as well. Those reasons were brought home last Wednesday when Chief Justice Mark Cady delivered the annual State of the Judiciary speech in the crowded chambers of the House of Representatives in the Capitol, just upstairs from the historic courtroom where the Supreme Court met for more than a century.

Softly, and almost lyrically, Justice Cady talked of compassion for those who find themselves in the court system, of concern for the children caught up in the system — caught in it by their own misguidance or by the neglect or abuse from their parents — and of inequality and racial disparity in the system.

He talked of business as well — about how Iowa within two years will have the first totally paperless court system in the nation, about the supreme court’s travels around the state so that everyone can see the justice system close at hand, about openness and transparency, about experiments with new specialty courts.

But he talked most movingly of justice and fairness and about how Iowa’s courts are working not to sentence young criminals but instead to help young people before they become criminals. He told how “meaningful court intervention guides (delinquent children) towards productive lives as adults” (and, perhaps for the benefit of the Governor, who was sitting behind him, how that saves “taxpayers the cost of paying for future incarceration or treatment of more serious conditions that too often occur without such intervention”).

The “goal of protecting Iowa’s children is within reach,” he said. “We are committed, in every individual case, to break the cycle of juvenile delinquency that leads to broken homes and adult incarceration.”

He talked of his own experience as a young judge 30 years ago, of when he would terminate parental rights and of how he “saw firsthand how addictions can destroy families.” He talked about “the tragic cycle created when destructive conduct by parents is imprinted on children and then repeated when those children become parents.” The problems are old, he said, but the solutions must be new. Then he talked about the state’s “new and innovative courts” — drug courts and mental-health courts and family-treatment courts — and the successes they are having. And he has the statistics to prove it.

“We must give hope to every child,” he said. “Success comes one family, one parent, one child at a time.”

It was a truly remarkable speech by a man who even before he became Chief Justice had left his mark on the court and the state with his eloquence in the Varnum same-sex marriage case, the unanimous decision that reaffirmed this state’s commitment to equality for all and its equal commitment to freedom of worship for all.

That decision showed Chief Justice Cady has a passion for the law. Last week’s speech showed he has a compassion for the people. CV

— Michael Gartner

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