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Civic Skinny

Regent appeal in Palo case done without a vote. Mike Gronstal throws Jack Hatch under the bus.

1/29/2014

The Board of Regents late Wednesday asked the Iowa Supreme Court to intervene in the case involving Iowa State University basketball player Yempabou Palo. The action was taken without a meeting of the board, without a vote of the board, and apparently without discussion by the board.

So who made the decision? Apparently Board President Bruce Rastetter. The motion was “filed with his knowledge and understanding,” board lawyer Tom Evans told Cityview, “following consultation with the Attorney General’s Office, myself and Executive Director [Bob] Donley.” He made no mention of other Regents.

Bob Downer, the senior member of the board, told Cityview: “There was no formal (or, to the best of my knowledge, informal) vote on whether an appeal should be taken.” He did say that after a lower-court judge temporarily barred Iowa State and the Regents from enforcing their ruling kicking Palo off the team, “we did have several communications from Tom Evans.” And, he said, “it was clear that Tom and the AG’s staff were at least strongly considering petitioning” for a Supreme Court hearing.

He added: “While I certainly agree that getting a formal authorization in a telephonic meeting would have been preferable, from the sentiments expressed about this in the December meeting I would have expected that to be perfunctory.”

Still, lawyers say it is highly unusual for a board to file a lawsuit without formal approval by the members of that board.

As Cityview pointed out last week, the case is about justice, not basketball. Briefly, on Sept. 18, 2012, Palo was charged 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. He also was charged by the university with violating the university’s Code of Conduct. He was suspended from the basketball team.

Subsequently, the county dropped the charge — court documents indicate the woman’s credibility was an issue — and an administrative law judge decided the accusation of violating the code of conduct was “unfounded.” The university then appealed — to itself, such is the way of university justice — and ISU President Steve Leath overruled the administrative law judge and determined with no additional evidence or testimony that Palo had violated the code. Leath kicked him off the team for this, his final year of eligibility. (He had been reinstated after the county dropped the charge and played in 17 games last season.) Palo appealed to the Board of Regents, which sided with Leath. Palo then went back to court, and district judge Thomas Bice put the ruling on hold, in effect putting Palo back on the team while the court considers the case. The judge had some very strong things to say about “troubling facts” in the processes of the university and the Board of Regents.

On Wednesday, the Regents — at the behest of a Regent leader, or someone at the Regents, or someone in the office of Attorney General Tom Miller — filed two motions with the Supreme Court. Saying Judge Bice’s decision “is an abuse of discretion and clearly erroneous as a matter of law,” one petition asked for a stay of Judge Bice’s ruling putting Palo back on the team. The Supreme Court denied that on Friday.

The second filing asks the Supreme Court to quickly set a hearing — an interlocutory appeal — on the central issue of the validity of Judge Bice’s temporary order. Palo’s lawyer has until Wednesday to respond to this request. Five of the 10 exhibits in this request are filed under seal, including the contents of the original charge of violating the code and texts of the decisions by the administrative law judge, by Leath and by the Regents.

If the Supreme Court decides to hear the interlocutory appeal, and doesn’t unseal the documents, it will in effect be making a decision based on sealed papers, keeping the public in the dark and providing no window into the thinking of the administrative court judge, on the one hand, and ISU and the Regents, on the other hand — two sides that reached opposite conclusions based on the same undisclosed facts. …

Democratic Sen. Jack Hatch faces an uphill fight — that’s putting it mildly — in his effort to unseat Gov. Terry Branstad. Branstad has 10 times as much money, a vast knowledge of every corner of the state, a strong political network, the support of at least one rich Democrat, and great name recognition since, after all, he has been governor since time immemorial.

So Hatch needs all the help from Democrats that he can get.

But Senate Majority Leader Mike Gronstal didn’t give him any the other day on Iowa Press. In fact, he gently threw him under the bus.

Gronstal, the most powerful Democrat on Capitol Hill and arguably the most powerful in the state, was questioned by reporter O. Kay Henderson.

Question: Mr. Gronstal, one of your colleagues, Jack Hatch, who is running for governor, referred to the Governor’s speech this past week as timid. Would you agree that the Governor presented a timid proposal to legislators?

Answer: I think the Governor put together a set of proposals that can get broad bipartisan support inside the legislature. We look forward to working with the Governor on his agenda. Are there things that we would add to that agenda and will add to that agenda? Of course there are, as the House will as well I suspect. But I think it was a good speech by the Governor, and I think it recognizes divided government and recognizes, to some degree, the success of last session and that by setting aside our difference and the things that severely divide us we were able to accomplish a lot of things.

With colleagues like that. …

No good deed goes unpunished:

In November of 2012, a Polk County jury was hearing a medical-malpractice case against Des Moines doctors Jennifer Booth and John Sweetman. In the second day of the trial, a juror became ill and fainted in the jury box. Realizing what happened, Sweetman went over to the jury box to help the woman. The other jurors obviously saw what was happening, but Judge Douglas Staskal quickly asked them to leave the courtroom.

Lawyers for the plaintiffs, Mary Jack and her children, then asked for a mistrial. “Personally, I’m not trying to criticize Dr. Sweetman,” Eric Updegraff, the lawyer, said in his motion for the mistrial. “He did exactly what I would hope he would do in that circumstance. Obviously, the juror’s health and well-being is much more important than this jury trial, and we’re glad that he did that. But it does create a problem for our case where we don’t think that jurors who have witnessed him in action, for lack of a better term, are going to be able to be unbiased or unprejudiced by that when considering a medical malpractice action against him.”

Judge Saskal dismissed the sick juror and individually questioned the others to see if they still felt they could be impartial. They said they could be, so the judge denied the motion, and the trial continued. The verdict came in for the doctors, and the Jacks asked for a new trial. The judge denied that, so the Jacks appealed.

“There is no doubt the trial court was confronted with extraordinarily rare circumstances,” the Iowa Court of Appeals noted last week. But, it continued, “Once the jury observed the doctor in action with their own eyes, there was no way the proverbial bell could be unrung.”

The court then reversed the judge and ordered a new trial, but in doing so it praised everyone. “Dr. Sweetman appropriately tended to the ill juror. Judge Staskal, an experienced and well-seasoned trial judge, was confronted with extraordinarily rare and difficult circumstances. We commend him in his responsive efforts to maintain a trial fair for the litigants…”

The court was entering “uncharted waters without the navigational aids of any Iowa statute, rule, or case law….We do not fault the court in not foreseeing our opinion. It is well established that we do not require counsel to be clairvoyant….If counsel is not required to be a soothsayer, neither should a trial judge.” …

When Tom Bedell was building his house on West Okoboji in 2004, he showed it to a guy he knew. The guy walked into a room and said, “Tom, this is a big room.” “Yes,” said Bedell, “Molly and I wanted to be able to feed 500 comfortably.” Of course, said the guy.

Then the guy walked into the master bath and noted the shower had more shower heads than the locker room at Principal Park. But that was just in one bathroom. There are 15 others. One of the nine bedrooms had a particularly high ceiling — so one of the Bedell sons could shoot baskets without having to go outdoors.

Too, there was the full size Irish Pub in the basement — “Kevin O’Sullivan’s,” with its brick sidewalk, planked floors and long oak bar and raised stage — as well as the theater-like room, the pool room and the industrial kitchen. And the six fireplaces. And the garages for 10 cars.

At any rate, as The Des Moines Register and the TV stations have been reporting, the 24,876-square-foot house now is for sale for $14,900,000. Not noted in the media reports: The property taxes are $102,714. A year. (The value of the average house in Iowa is $122,000.) …

Jens Manuel Krogstad, a good reporter who has been covering the Regents for the Register, is leaving in a few weeks to join the Hispanic Trends Project of the Pew Research Center in Washington. CV

Barmuda