i represent the plaintiff in this matter stephen john and we're appealing as the court knows a summary judgment in this case in our case is based primarily on the fact that we feel that there was a violation of procedural due process in this case and in the cos case the court said that fo procedural due process the procedures have to be fundamentally fair and in this case there was some evidence that they were not fundamentally fair the principle told jake john my client that they had a videotape of jake taking this laptop computer and that wasn't that wasn't factual they did not have a videotape of him taking the laptop computer they had a video of him walking down the hall with a backpack on his back but when they looked at the from a look at the facts  surrounding the time that any of us take and who was in that area wasn't it reasonable for them to deduce from those facts that he took the laptop and if they made that deduction if they drew that in friends then is that statement that we have a tape of you taking the videotape is that well what they are it's not it it is false because they told him that they had a video of him taking the laptop and they really didn't have a video of him taking a laptop they had a video of him walking down the hall with a backpack on his back i thought what they told him is that they had videotapes of the cameras that monitor the hall no so how do we know exactly what they told him about the content of these videos assuming that that's relevant to your claim given the unfortunate suicide of your client well we know that the principal testified that he  told them that the video was not available but i understand your argument about how you claim his due process rights were violated because they had a video and that they wouldn't show on the video i got that so we'll put that off to the side a second you're claiming in this discussion that they violated his rights by sensually misrepresenting or lying what was on the video which is a related but a separate claim yes so where is the evidence that they told him they had evidence in a video of him stealing the laptop well the superintendent said he testified that that he was told it was his understanding that jake was told that there was a video of him in possession of the laptop the so early now we're now we're three steps away the superintendent is told was told by somebody else as to what was said at this meeting with the student and then that's repeated now to the authorities well the superintendent complete so what the superintendent says unless you're claiming it's some sort of admission it's complete hearsay it's an admission it's an admission by a party opponent and so who does he say said that to the principal and what does the principal say he said the principal says i told rick that we had a video of him taking the laptop ok so you say the record cooperates that they told him taking the laptop right yes sure about that i believe that's ok so let's assume that that's the case let's assume intentionally or otherwise they lied to or i think the interesting  one interesting aspect of this case is that is to compare what you're claiming ga says is a due process right that a student gets in what will you admit is a is a more abbreviated type of a proceeding in connection with a school discipline than would occur if it was an adult accused of committing a crime yes that's more proof you get it now is there any limitation correctly or incorrectly on the police in actually lying to somebody when they talk to them about whether they've committed a crime yes there are are limitations on that yes really  are those well places say that the police don't have a duty to be honest they can have ruses they can lie to somebody when they're talking to well i think in this case you're dealing with a minor we're talking here about comparing it to the due process rights that somebody committed has committed a crime and is being charged in court with committing a crime and their liberty could be deprived for up to life do you agree or disagree either way that the police can lie to somebody well if they if the confession is involuntary if it becomes overboard you know there will be nothing about anybody's will being overboard i'm saying do police have a duty to show somebody the evidence that they had number one police i don't believe they do that can they lie about what evidence that they have that they don't show to somebody i believe they can as long as it's not involved but so the irony of this staking a long time to get here the irony of this is that what you're claiming is that in an abbreviated meeting between a student and the school administrators that that student actually gets more due process rights than does an adult who is charged with a serious felony that could deprive them of their liberty for life in a criminal proceeding that's where your argument takes us is it not well if our yes it done so how do we get that out of gas that recognizes that in a school disciplinary sense to avoid turning any encounter between a school administrator principal and a student into a full blown due process hearing that things are different you have some rights but not of your full panoply of due process rights if seawater case which was decided last year by this panel or this court that the student has a right to disclosure of the evidence and also in the newsome case at the hearing that can lead to the expulsion not in the first encounter about hey we think you did it did you do it this was the only hearing this was the only hearing that was going to take place this was in the case you're relying upon or this case in this case but that's because of the unfortunate tragedy that happened following this initial encounter this was the ten this is the ten day or last meeting between the school and the city know this this was it and they went back to mr and mrs john to talk to mr valko which they were required to do under the procedures and they said what can we do about this and he said nothing he's done he's done and mrs johnson just like that and mr valko said just like that so that's yeah that's the end of the procedures but isn't the reason that there were no more procedures i mean we've alluded to jack's tragic death later in the day but but actually jeff jake confessed almost immediately having been told that well we've got a videotape showing you taken computer i mean jake confessed right there right or not immediately but that at that meeting at that meeting after they worked after they lied to him a couple times you know they said we have a tape of you taking the computer and he said can i see it and they said it's not available and it was available i guess my point is however you talk about you know other procedural rights that may or may not have had but it didn't doesn't jake didn't judge or any for instance someone accused sort of cut off the procedural you know parade once they confess i mean that's it right but i don't agree with that because the court has  said for instance in the seal case that the student has a right to the hearing on that discipline involved really the problem with this case was the discipline this was an all a student an exemplary student he should not have been suspended for the remainder of the school year so you know in reading your argument i understood you to say part of the problem was that jake  hearing in accordance with the procedures of the school and i know that the school says yes he had a due process but when they called hearing when they called him down to the office and they confront him with the evidence their summary of the evidence that was the hearing and i understood you to say i was that part of your complaint to me was that he never had a hearing in accordance with the school procedure that they called him down in sort of an investigative procedure and then imposed discipline at that time am i misreading your argument or here here's my argument this is not a cost case ok because he was suspended for greater than ten days i mean it's all over the record that he was suspended for that you are conceding that he had a hearing  goss type hearing if this was a short term suspension right for less than ten days there would not be a violation are you conceding that he had a hearing that would have been mandated for longer no absolutely not hey you didn't have a right to call witnesses he didn't have a right to prepare he didn't have any notice he didn't have anything and he had a right to go to the school board and the school board would not have imposed this type of discipline on an all a student and he had a right to their theory have we have no way of knowing what would have happened happen once the student or the parents got the letter that the computer generated after this initial incident whatever you want to call it because by then it was moved it was moved because mr valko when they went to mr velcro in accordance with the policy and that these are these are parents they're trying to find out what to do at any point did they ask why it's almost silly to us to ask these questions because of the tragic end of this that that evening but where is the evidence that says had they called you as they ultimately did and said jesus can't be let's assume he hadn't committed suicide you would have looked at the code and you would have said they have a right to a hearing before the school board he would have demanded that right well i would have said you should go talk to the assistant principal and let's assume the same thing happened two days later three days later they talked to his sister principal and they said i don't care what the code of discipline says he's done don't even talk to me about it at that that is mean it's over he had a right they still had to assert their right to go to the school board i think they had a right i think they had a right to rely on what the assistant principal said these people and how were they to to be blunt about this and i'm sorry to have to do this but how were they harmed by what they were told by that's administrator that afternoon when they went back even if it was completely in error here's how they were harmed they went there to see if they could do anything about jake being suspended they were told no he's done just like that it's over if they had been told that there was anything they could do if they said you know you have a right to an appeal you can go before the school board they would have gone home and said jake it's not so bad we have a right to a hearing you have a right you know you have some rights here you can go before the school board and you can wasn't just the next suspension it was an expulsion in your argument today you consistently said that it was a suspension does it make a difference whether it was characterized as a suspension or an expulsion yes makes a difference what i think it was was a suspension for the remainder of the school year because that's what they said in about five or six different statements that triggers if it's longer than ten days under new some and under goss there have to be added protections if it's longer than ten days and it was longer than ten days so he needed he needed to have a  hearing before the school district on the punishment and it would have been reduced because it my expert witness testified this is not appropriate punishment this is excessive this is this is not reasonable one of a question and then and the light is on but in your papers you also ascribe to the school officials officials what i characterize as a higher duty are some some knowledge sympathy ability because address that a little bit for me ok they have two policies they the policy say when there's a danger of suicide a counselor needs to be involved  all these procedures need to take place that's what happened here there was a danger of suicide that's why mr valko said you better keep an eye on that boy why would he say that you better keep an eye on him why because he might hurt himself was there any end indication in the record that he had earlier spoke about so the thought was there any end anything that the school put the school on notice that he might have been that he might have had suicid ideations yes the fact that he broke down and mr valko realized that and told mr john you better keep an eye on that boy so that is evidence i mean these are fact questions this judge ruled as a matter of law you know that there with mr velcro knew nothing well then why did you tell him to keep an eye on that boy why didn't he get  half the defendants i believe that the students do proper seizure due process rights were properly observed in this circumstance and regardless of what this ultimate punishment was the only admissible evidence we have in this case regarding what occurred during the initial meeting with jake and the two school administrators comes from farnsworth and valko we know one that the ministry has contacted legal counsel that morning to find out how to proceed with all due process hearing to and and that they were told to get the yes in the school district acted as what they thought was in the best interest of the student they did not want to get the student wrapped up in the criminal justice system but they also didn't notify parents  at that time they didn't have a parent present at the time they engaged in the initial querrey it was just the student correct but that's not required of procedural due process and student discipline setting what is required is generally speaking notice of the charges and if he denies them an explanation of the evidence against him and that was exactly what was provided here when jake was brought down to the office for stealing a teacher's computer which is a very serious offense this isn't taking bubble gum from the student this is a teacher's computer containing confidential information in protest grades and assignments and things like that the undisputed evidence is that he was explain the due process procedure by farnsworth then they gave him a notice of the charges against him because i understand the case also that there is a duty to explain the evidence if there are a higher duty invoked when the student asked to see the evidence because here dick ask the official to see the evidence and they said not that we're not going to show it to you they said we don't we don't have it yes i mean i can address in two ways first factually the the hearing took place in mr  farnsworth's office and i have a citation for that if you need a citation to the record but the computer with the video on it was in mr valko as office so it's a factually accurate statement mr valko testified it was on t fifty five page twenty two twenty three of his deposition that he offered to get the video for jake and it basically called his bluff and he said that's ok it was almost as if they conceded well they got me here but secondly legally no he doesn't have a right to see the evidence against him is a right to an explanation of the evidence against him nothing was withheld and this was a case mr avery brought up to see why case judge mckeague you're on there panel there was a case that i was defending in that case there was actual written evidence against the student and in the opinion it states that inconsistent with newsome are never right to an evidence itself you have a right to an explanation of the evidence that's exactly it was provided in that case the student didn't have the right to the physical evidence just an tallis an explanation of the evidence as opposed to the evidence itself when the first argument the mystery is making it is that they lied to him about what the video actually showed so we can look at that it seems to me a couple different ways i'd like you to react to one is is there evidence they actually lied to him about what the video showed but even assuming they did is there anything that says that a school administrator can dissemble as to what they what evidence they have at this initial meeting with a student are not talking about the due process hearing that they get at the end for an expulsion talking about this an issue and need no other to address the first point no there is no evidence that mr farnsworth lied about the evidence showing on the video mr kelly says that the record evidence shows that they they have video of him taking the  what mr farnsworth testified to is the evidence that we had was video of every single student leaving the area in the timestamp when the computer was woken jiggled on the desk within about twenty thirty seconds jake walked out there was the video there was the evidence we had so i explained that to jake there's nothing in there that says i saw him take the computer or the video shows and take the computer but we don't know what jake would say about what the about what he was told so at some point did one of the administrators explain to the parents what they told jay about what the video shows in different language than what you've just read that i'm not aware of this is their record that's it this is it as far as i know about what occurred during this hearing to the second point no there is no wall that requires the school district to accurately describe evidence to a student during a due process hearing also is required is they not withhold any evidence that the relying on and there was nothing withheld in this case in judgment you brought the perfect analogy here is a look at the custodial interrogation setting in a police department those individuals have greater due process rights and there is no right to have a police officer accurately describe evidence against them actually it happens all the time we cited a couple those cases in our brief here where they say trickery alone will not over come some way and in that context i believe the law is that even if the police dissemble as long as i confession resulting from the center of you is voluntarily knowing the nits admissible true there's nothing more that could be accomplished by continuing further hearing after his confession takes place mr valko also testified on page sixty nine of his deposition and in his statement that he acknowledged his deposition which i believe is a record entry three hundred thirty four additional thirty six days fifteen that content of the video or the value of the computer or the consequences of the action if you assume that and if you assume as as as the appellant says that they told him you know you're going to be expelled we're going to contact university of michigan you're never going to get in you're going to have a criminal record academy record and you're never going to be able to get the job of your choice if you assume that they told these things to the sixteen a seventeen year old student what those kind of statements be the kind of statements that one could probably consider would likely create a danger of suicide and him some  boak the state created danger doctrine no i do not believe they would in for a number of reasons the state create a danger doctor and the legal standard there is it demanding standard actually yass to the plane to pass to show  affirmative act that creates or increases the risk of a known danger now the court as described that is a greedy just conduct so agree just that it would shock the conscious now when you look at it not only that the  actor the state would have to know that their actions or should know that their actions would result in an obvious risk of danger in this case and would say that the administration is knew that what they were going to do could possibly result in suicide i don't think anyone can say that making statements in this circumstance they would know that it would result in suicide you're talking about a seventeen nearly eighteen year old student who is highly intelligent from all accounts a good smart student seemingly well adjusted from what the school administrators knew no history of mental illness and no me history as far as they knew of suicidal ideations this was like i said a seemingly well adjusted individual now making statements like we're going to contact police if you don't admit you guilt that's just a statement of fact that's not a threat because what they have to do if you're not going admit it we have to rehab to find out what happened here we have to find out who stole the computer this is a serious offense we have a duty and obligation to the student body and the community maintain order in the school district so making those kinds of statements are not such egregious conduct that it would rise to a level that you should know that a person would commit suicide after hearing those words now want  you back from the state create a danger to just finish up on due process for the other argument that mr halfway is making is that by the parents being told after they returned to the school with a laptop and that it's over nothing more can be done that that then prevented them from going back and telling their son that at least as to the discipline it isn't over and there are further steps that can be taken so what does the record show that that happened after he confessed and he and his dad brought the laptop back to the school well the record shows that after he confessed and brought the laptop back to the school there was a second hearing that day with the dad present and jay jay continued knowing what the punishment was going to be to say i had the computer i had the computer that's what the dad testified to that hearing continued for thirty five to forty five minutes i believe was what the d emitted the length of that hearing to be later that day but what what i want to know as is their record evidence that co operates what mr half ellie is saying here this morning that they were told it's over this is what's going to happen there's no further appeal you can't go to the school board whatever whatever it is i can't think of a citation to that off the top of my head your honor and it doesn't sound familiar what i know is accurate assuming for the sake of argument that one of the parents had testified to something like that i know that the mrs john had signed an acknowledgment at the beginning of the school year that outlined the procedural through process rights acknowledging that she had received it this was something that was outlined in the student handbook that they had and possessed and acknowledged reviewing so even if mr valko made such a statement like that it didn't extinguish their rights they could have still gone before the school board of education they could have talked to the principal which they did not do they could have talked to the superintendent which they did not do it does not and it is i understand mr hill is argument it seems to have evolved here it doesn't really go so much to whether they ultimately could have gone back to the school board or not because obviously events eliminated the need for that but it goes to the question of whether there was a due process violation in somebody's misinforming jake and his parents at the time of what you're describing as the second hearing as to whether there were any further rights so it seems to me there are two questions did they miss inform number one and if if that if the answer that is yes or if it's a fact question then does it matter here from a due process standpoint given what the code of the student handbook says what i believe to be the case here i think he's talking about the third time that they spoke with school personnel that day which would have been in the afternoon around two o'clock the first hearing was that levin o'clock noon around noon and then again at two o'clock  does state that the parents stated valko told them that they were entitled to a further due process they were not i think that's what he claims in his appeal that they were not right so your folks say that they didn't say that but that's a fact question obviously you know if we take the record in the light most favorable to them and assume that they were told that is that a due process no it's not your honor and why not it's been explained multiple times that you do not have a student does not have a due process right to an appeal of your suspension it's just not a establish right not only that though they were informed i mean there is no question about this they were informed at the beginning of the school year what their due process rights were the statement that was sent the prepared and sent to the pulled the wrong citation but there was a statement there was prepared from the discipline record that was being sent to the family and identifying what the punishment was are the charge was in the punishment and inform them of their due process rights  actually go out even had committed suicide in the meantime i don't know if it was actually sent i know it was generated that day though but the record shows that it was generated yes that's from minute patricia spielberg's testimony so even had they been misinformed that would have been presumably corrected by virtue of what they received in the mail it would have been corrected by that you would be corrected by simply reviewing the student handbook that they acknowledged receiving about you think that they had no right to appeal the fence they don't have a they don't have a procedural due process right to appeal the suspension but that's where it gets confusing i thought if it was longer than ten days that they would have that right so i thought that your position had been this initial suspension whether it's in this first hearing second hearing or third meeting that all occurred in the same day was that that was a ten day or less suspension and they were recommending to superintended that it be longer it is different that is my argument here are so assuming that what you're arguing is correct that that it was within the gosper ambers and let's assume you don't get an appeal from that it was they were going to take the next step to fulfill what they told the parents and the students they were recommending to the higher authorities and that was that he can't go back to school for the rest of the year but he can take classes from oh yes he's going to he's going to continu education he would have had to go for that to get a hearing don't you he would have been granted to hearing from school yes ok but but but the but the administrative didn't tell you jane but you're suspended for ten days i'm going to recommend a longer suspension they said basically if you're out and they never tell the parents that we're suspending him for you know ten days or less but we're going to recommend these other things everything that he was told and that the parents with is that he was being suspended for the rest of the school year that was not this demarcation in what was communicated to either the student or the parents correct well i don't know if that is correct or i think that mr for mr farmer  so that they explained suspension being we're going to issue an initial suspension and make a recommendation for a long term suspension it was issued all of that all of those explanations occurred after the suicide i don't think that one of the one of the two administrators testified that that's what occurred that discussion occurred in the initial i mean but but i think that there are many parents after the suicide so i thought the parents said they didn't want to talk to the school right now and what i'm saying is that the characterization of what was said all of her after the suicide we don't know what with actually thing that i mean we're filming and we're giving the school administrators the benefit of the doubt and what they thought at that time that we really don't know well we all all we know is what mr farnsworth the testified to now believe it's on page seven or eight of his deposition that he told jake during that initial hearing and what the suspension would be  that he would break and make a recommendation that he be suspended for the remainder of the school year i believe that is what the undisputed testimony is so that's why we're trying to figure out whether that whether there is record evidence that the parents claim they were told something else in these subsequent meetings  did before you asked whether there was any evidence of what mr valko told them the johns in their meeting when they came back to find out if anything could be done and there is mrs john testified on this is a page twenty four of my brief she said and then i asked mr velcro and i said you know after twelve years a stellar school career and you're telling me it's over just like that and he said yes just like that and then and that's the last every member we left there and then she testified what else was discussed with mr valko nothing just that jake was done and that was the end of the  conversation i mean we were just trying to wrap our heads around what was happening i don't recall anything specifically mostly you know i did i didn't understand how he could just be done like that so they were they were told he was done there was nothing else they could so there's anything in the record that refutes the school board's claim that he did the parents would have gotten the notice that is called for in the marysville student code of conduct that explains what happens next they never got it i i don't you know they go it's a computer generated so they've changed their story three times as to what actually happened you know at first they said all over the documents it says he's suspended for the remainder of the school year then they issue a document that says it's an effort indefinite suspension and then they at the depositions they've changed to this well it was a short other than mr valko he had a parent an actual authority to tell them what their rights are there and they're not going to go back and read handbooks their son just gotta let me ask you this or is it your contention then that let's say  it but that can't change the school policy valko was without authority to own the spot change the written school policy which jake and his mother had acknowledged earlier in the year and i mean i guess perhaps i'm inconsistent with the written policy the written policy says go to the assistant principal ask him what your rights are that's what they did he told them they fall of the written p what the policy says well it says something like that says the assistant principal sends written notice of the violation the cat's glances and the perp the n d p procedures and then the parents decide whether they want to actually exercise their appeal right well the assistant principal is the correct person to go to and that's where they went i mean they're not reading policy manuals there they just learned that their son after eighteen years of stellar performance was suspended for the remainder of the school year so they wanted to know what could be done and what i'm trying to separate this out as is i understand your claim that if they were misinformed that that's part of your state created danger theory i got that so put that off to the side the state created danger the theory that you have for a moment i'm trying to figure out what the due process violation was in these various meetings other than the video question and i'm trying to figure out what the source of the authority is to say that that's a due process violation the due process finally other than that was not fundamentally fair is that there was a suspension for longer than ten days in under new so when there's a suspension for longer than ten days there has to be additional protections there has to be a right it's not clearly defined but there's more than just this preliminary hearing and so we don't know whether that would or wouldn't have happened in practice because of the tragedy that occurred here so we have to figure out whether being misinformed about that was a due process violation and what's the source let's assume that they were misinformed and they were told something contrary to this code of conduct what's the source of your authority to say that being misinformed about the appeal rights was in fact a due process violation well i don't have any case law right on point but when the policy says that this is the man that tells you what's going to happen apparently it says in writing and not orally and they went to him and he told them what was going to happen then he's got actual and apparent authority to make that ruling i mean they're entitled to a to rely and i think the school board policy you're saying that he has actually forty at that juncture to change the school board policy as far as they're concerned it says in the in the in the handbook he's the one that tells them what to do and you know they want to call jake and if you want to tell them you know you have a if he would have said mr mrs john you know what you have a right to appeal this you have a right to to a hearing before the school board they would have called jake up and said jake it's also not lost you know you've got a hearing you've got a right to present witnesses the school board will never continue this because it's not fair but sometimes you can't go back and undo things and he that's that was his decision he said no he's done and you know they ran that school that's how they ran and i thank you thank you interesting case from a procedural standpoint but obviously a tragic case will take this under advisement and consider