SAD63 AT THE MAINE SUPREME COURT

It is rather impressive, being in a state's SUPREME COURT hearing. This was not like any other court room, and I've been in quite a few, including the United States Supreme Court.

A Supreme Court is above the norm. And the Maine Supreme Court is definitely larger than the U.S. District court room in the Bangor Federal Courthouse. By four or five times in size. The ceiling is probably thirty feet high - no fooling. And it is a "tray ceiling". If you're not into architecture (or an HGTV addict) a Tray Ceiling is a three-dimensional, upside-down tray with the inner section higher in the middle and then an outer frame set down a bit lower and then a third frame that is lower still.

The ceiling in the Maine Supreme Court room is, I believe - I didn't count - three large trays across in width and at least five deep (maybe more deep) in length. The inner most section of each tray is the lightest gray with each succeeding frame a shade darker. Between the trays are large gold leaf rosettes. The outer frames of each tray have gold leaf "X"s - maybe three across each side. The corners of the middle rim are gold leaf and the design on the outer rim is a carved "dental" design.

There are four very large, old fashioned, black ornate chandeliers - each of which contains at least four milk glass lights (one bulb was out) and several smaller bulbs. Each chandelier hangs by a very long black chain from the ceiling. Although four small, white fans have been installed in the ceiling near the front of the court room, near the area where the six Justices sit, the fans are not obvious and do not interfere with the original design.

As we entered the room from the rear left, I could easily observe the entire room which clearly shows its history. The far right wall contains windows high up on the wall, all of which were tilted open at the top. Below the windows were several dark (black) wooden benches where I soon realized young male and female attorneys were sitting in, observing the cases being heard during the course of the day. They didn't appear to be affiliated with any of the cases being heard while I was there or the case being heard immediately before the SAD63 case.

At the back of the room, where I would soon find myself sitting, were several old-fashioned black wooden benches, their seats and arm rests well worn over time - the black paint worn through to the natural wood. The style could easily indicate a time from that of President James Monroe at least. Directly in front of these benches, their backs pressed against the railing separating our section from the center of the room were several old, deep red, leather chairs with ornate knobs at the top of the back on each side. One can easily imagine them having been there for years and years. There is history in this room documented by the furnishing alone.

To the far left, next to the door where we had entered, sat a gentleman I believe to have been the court bailiff, perhaps although his "uniform" was a dark blue blazer with a crest on the pocket rather than a peace officer's uniform. Further along the side were benches similar to those on the opposite wall where the young attorneys sat; however these benches were vacant.

In the absolute center of the room were four relatively small desks with two chair each. Two desks were directly in front of the Justices bench, with a podium between, and the other two desks were located behind the first two. Imagine two rows of two desks each.

Directly in front of the podium - stretching from one side to the other - was a narrow area in which two young court clerks presided - separated from the attorneys by a deep railing that appeared to extend from floor to waist. Behind this area was THE RAISED BENCH AND SIX BLACK LEATHER CHAIRS. This was The Maine Supreme Court. It should be noted here that there was two doors behind the Justices chairs, one on either side on the center chair and a large ornate clock high on the wall above the center chair (which, by the way, has not been turned back to reflect daylight savings time).

When we first arrived, about 1:30pm, those of us there for the SAD63 oral arguments, we congregated outside Department 12, second floor, waiting for the case preceding SAD63's to conclude, not wanting to be disruptive. When that case concluded - the clue hearing "All Rise", we entered.

Those in attendance representing SAD63 were Bryon Densch, primary attorney, and Ms. Hoffman and Mr. Malloy from the firm of Skelton, Taintor & Abbot. It should be noted only Mr. Densch sat at the front right table and spoke on behalf for SAD 63. Also in attendance to listen to the arguments (and be of moral support, I suppose) were Mrs. Densch, School Board Chairman Don Varnum, School Board Member Karen Clark, and this writer.

Representing the Commission of Education was Sarah Forster, Assistant Attorney General from the Maine State Office of the Attorney General. She sat at the front desk to the left of the podium.

Representing former school superintendent Louise Regan was her legal counsel, Thad Zmistowski from the firm of Eaton Peabody who was accompanied by his loyal sidekick. The two of them sat at the desk in the second row, directly behind Ms. Forster.

Our case was scheduled to begin at 2:15pm. At 2:25 we heard, boldly proclaimed, "All Rise." And everyone in the courtroom stood as the two doors opened behind the Justices chairs and the six Maine Supreme Court Justices entered - three from one door and three from the other. There was no drum roll and yet, it was impressive in a way different than most courtrooms.

From left to right, they took their seats: Gordon, Miller, Alexander, Saufley, Levy, and Mead. Earlier when observing the ceiling and benches, I had looked at the oil portraits hanging high up on three of the walls. Nineteen men - and one woman. From their appearances and attire, it was easy to see some of them lived many years ago. The one woman appeared to be from a recent era. They were all attired in judicial garb. Chief Justices perhaps. And now I was looking at two women justices, one of whom was The Chief Justice. Considering my professional career and it's hurdles, I must admit to a moment of personal pleasure.

And so IT began.

The Chief Justice asked all three attorneys who planned to address the Court to come before the podium and give their names and the party they were representing (for the record). And each did. Then Mr. Densch addressed the Court first (because SAD 63 was the party who had filed the Appeal to be heard before the Court).

Then Ms. Forster spoke in response.

Then Mr. Zmistowski spoke as to Ms. Regan's position (as presented/developed by her counsel).

Then Mr. Densch was given the opportunity to provide a final rebuttal or argument to what had been presented by Mr. Forster and Mr. Zmistowski following Mr. Densch's initial presentation.

For the sake of brevity and syntax, this writer will simply provide an overview of the oral arguments presented, the key points raised by the Justices and what this writer believed to be the inclinations of the Justices by the time the Oral Arguments were concluded. Again, the following is only based on my observations.

At Issue: Title 20-A M.R.S. (Section) 1052(3) states that the Superintendent (Regan) may appeal a school board's decision (SAD 63's decision to terminate Regan's contract) to the Commissioner and that the commission SHALL hold a hearing as part of the appeal. [NOTE: the word "shall" is a mandate. If the law used the word "may", the law would mean there was an option as to whether or not the Commissioner would hold a hearing. That also means the Commissioner would have complete discretion as to whether or not to hold a hearing. When the law says shall, as in this law, the only discretion appears to be when the Commissioner is to hold the hearing, such as within a certain time frame following receipt from a request to do so. The operative word in the law here is SHALL.]

Title 20-A M.R.S (Section) 1052(3) states that the Superintendent may appeal a school board's decision to the Commissioner and the Commissioner shall hold a hearing as part of the appeal. [NOTE: Here is an example of the "option" where MAY is used and SHALL is used.

This became important today when the Chief Justice (CF) pointed out that the legislature wrote these laws and defined the responsibilities of the Commissioner. The CF pointed out that the law did allow some discretion to the Commissioner as to WHEN to hold the hearing, but IF a hearing was requested, the Commissioner was required to hold one.

Justices asked if Regan had asked the Commissioner for a hearing. It was acknowledged that Regan had, but then had requested that the Commissioner hold off on the hearing because Regan had filed for her case (with numerous and various issues) to be heard in Superior Court. It was then acknowledged that many of those issues had gone on to U.S. District Court which had thrown them out stating they did not constitute civil rights violations and sent them back to Superior Court - or to the Commissioner.

The Justices began to the crux of the matter when Justice Levy asked WHO WAS THE AGGRIEVED PARTY IN THE MATTER BEFORE THE COURT? Mr. Densch stated SAD 63 was the aggrieved party because SAD 63 has been put off for 14 months by the Commissioner who has refused to simply hear the issue of whether or not the school board acted in compliance with Maine School Law when it took the actions it did, followed the procedures it did, and then, finding what it believed to be just cause - terminated Ms. Regan.

There was some discussion amongst the Justices that the current legislative law does not give the Commissioner the authority to do anything other than to determine the school board's action valid or invalid - meaning the Commissioner cannot award any damages to Ms. Regan should the Commissioner determine the board's actions were invalid. All the Commissioner could do is to order the board to give Ms. Regan back her position. So then the Justices asked how the district has been functioning since Ms. Regan was terminated. Mr. Densch noted that an Interim Superintendent was hired and things have gone forward. Justice Alexander pointed out to Ms. Forster that he presumed many superintendents might be appealing to the Commissioner what with this consolidation of schools. Ms. Forster didn't seem to think that would be the case.

Then Mr. Zmistowski spoke to the Justices. The MOST IMPORTANT point he made, as far as this writer can discern, was that Ms. Reagan doesn't intend to ask the Superior Court to determine whether or not her termination as superintendent was valid or not (!). Her case (and issues) in Superior Court is solely for redress of the other issues - at which point Mr. Zmistowski began to focus on the investigation the school board conducted as part of the required process to determine if there was just cause for termination (as least that's this writer's understanding of that issue).

Shortly after Mr. Zmistowski finished at the podium, Mr. Densch was offered the opportunity to provide any last remarks in rebuttal to Ms. Forster or Mr. Zmistowski. Mr. Densch, in the only time I have observed any hint of frustration by him in any court presentation, did state that if he heard another reference to the "investigation" he might just jump out the window (referencing the open ones in the court room). It was rather humorous considering how much frustration the man would be entitled to over so many reasons in this case and he has demonstrated none.

Within moments, there was that "All Rise". The Justices existed through those two doors through which they had originally entered. And we were done. At least for today. But I must say, I think the day was ours.

I really think the Justices "saw" the issues - that Regan (and her attorneys) have been playing the delay and stall game to avoid the direct path which would have brought this entire matter to conclusion years ago. And the Commissioner of Education has been avoiding her legal responsibilities as defined by law which has resulted in allowing a terminated employee to avoid a final determination. There were many questions asked by all of the Justices except Justices Miller and Mead who asked none. They appeared to be listening to everything and pondering what they were hearing. It also appeared that all of the questioning Justices had read the appeals materials previously submitted. The Chief Justice actively participated in the discussion and NONE of the Justices seemed particularly interested in the long answered Mr. Zmistowski tried to lay on them (since they repeatedly shut him off). My impression was that Ms. Forster wasn't making much of a case with the Justices either. They seemed to think that the Commissioner had a duty and jurisdiction defined by the Legislature and she shouldn't defer it to the courts.

At this point the writer thinks Ms. Regan and her counsel should be thinking they are walking on thin ice and are probably hoping for some kind of quick alternative settlement. The more I've looked into this case, the more convinced I am that while the board made some errors in the past by placing too much trust in an employee (which is what a superintendent is), the board took the appropriate action when it terminated Ms. Regan.

Some of the board members have paid a high personal price for doing the right thing for the people in our communities and the students in our school district. Others have been shown for being less than what the voters/taxpayers and parents have a right to expect of them. But in the end, I for one hope we do not end up providing any kind of settlement that can be misconstrued as the easy way or the cheaper ticket out of this case. It will only be seen as rewarding terribly bad behavior by people who betrayed the public's trust in the first place. And more might decide to take the same path for easy money as the taxpayers expense (as though we can afford it!).

Lastly, we have some heroes on our current school board and they are to be commended. As should be Bryon Densch and his associates. He is a quiet-spoken man but he is a mighty advocate for doing the right thing. We're lucky to have him on our side.