Appellate Motion Brief (writing Sample) 5x6k33

Writing Sample

No. I-09-12345

COURT OF APPEALS, DIVISION I, OF THE STATE OF WASHINGTON __________________________________ State of Washington, Respondent v. Tanya Elizabeth Alsop, Appellant ___________________________________

BRIEF OF RESPONDENT ___________________________________

Shaun Soo Attorney for Respondent King County Prosecutor’s Office 900 Seattle Avenue Seattle, Washington 90105 1

Writing Sample Table of Contents

A. Statement of the Issue ...................................................................................................... 1 B. Statement of the Case ...................................................................................................... 1 C. Argument I. THE TRIAL COURT PROPERLY DENIED MS. ALSOP’S MOTION TO DISMISS BECAUSE MS. ALSOP HAS NO PROTECTED INTERESTS IN ACCESS TO THE SCHOOL AND DUE PROCESS WAS ACCORDED WHEN ISSUING THE TRES NOTICE .................................................................................. 4 A. The trial court properly denied the motion to dismiss because Ms. Alsop does not have a protected interest in the right of access to school premises ................................................... 4 1. Ms. Alsop has no protected interest in right of access to school grounds because the constitution does not recognize such a right ........................................................... 4 2. If Ms. Alsop has a protective interest, she has lost her interest due to her disruptive conduct ............................................ 5 B. Even if Miss Alsop has a protected interest, the trial court properly denied the motion to dismiss because the school district provided adequate process to Ms. Alsop ........................................................................................................ 6 1. The school district provided adequate process because Ms. Alsop’s private interest was protected by modifications to the tres order made by the school board ....................................................................................... 8 2. The school district procedures minimized the risk of erroneous deprivation because it sent multiple written notices apprising Ms. Alsop of her disruptive conduct, and because the school allowed Ms. Alsop to communicate her objections through Counsel Long ..................................................................................... 8 3. The school district faces significant istrative burdens if it were to accommodate formal hearing procedures because each school district has limited resources........................................................................................... 10 1i

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II. THERE WAS SUFFICIENT EVIDENCE FOR THE TRIAL COURT TO CONVICT MS. ALSOP BECAUSE THE TRES ORDER WAS VALIDLY ISSUED AND MS. ALSOP VIOLATED THE ORDER BY GOING TO THE BOOK AND SCIENCE FAIRS ......................................................................... 12 A. The trial court correctly concluded the tres order was validly issued because Cascade Hills Elementary has a right to tres Ms. Alsop and did not violate Ms. Alsop’s due process when issuing the notice .................................... 13 B. The trial court correctly concluded that Ms. Alsop violated the tres order because she was not invited to the Science Fair or the Book Fair and exceeded her scope of invitation by attending .............................................................. 14 1. Ms. Alsop has no statutory defense for her tres because a reasonable person would have known to refrain from attending school events after receiving a tres notice from the school ....................................................... 15 2. Ms. Alsop was only invited to the istration Center for the Parent-Teacher Conference and exceeded the scope of her invitation by entering school premises ................................................................................ 16 III. THE TRIAL COURT PROPERLY ANSWERED THE JURY’S QUESTION BECAUSE THE INSTRUCTIONS WERE COMPLETE AND ANY ERROR WOULD HAVE BEEN HARMLESS ........................................................................................... 17 A. The jury instructions as a whole were sufficient to answer the jury’s question because it provided the relevant statutes and properly defined the technical ...................................................................................................... 18 B. Even if the jury instructions were confusing, the judge's failure to clarify the jury instructions was harmless since the tres order was valid ............................................. 19 D. Conclusion .................................................................................................................... 20

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Writing Sample Table of Authorities A. Table of Cases Washington Cases Babcock v. State, 116 Wn.2d 596, 641, 809 P.2d 143 (1991)...…………………………………14 Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)..…………….………….18 City of Bremerton v. Widell, 146 Wn.2d 561, 574, 51 P.3d 733 (2002)…………..……………..16 Mills v. Western Wash. Univ., 150 Wn. App. 260, 279, 208 P.3d 13 (2009)……………………..6 Nieshe v. Concrete Sch. Dist., 129 Wn. App. 632, 641, 127 P.3d 713 (2005)..…………………..6 State v. Allen, 90 Wn. App. 957, 961, 955 P.2d 403 (1998)...……………………...........13, 14, 16 State v. Alvarez, 128 Wash.2d 1, 9-10, 904 P.2d 754 (1995).…………………………………...12 State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006)……………………………………….4 State v. Castro, 32 Wn. App. 559, 565, 648 P.2d 485 (1982) …………………………………..18 State v. Finley, 97 Wn. App. 129, 138, 982 P.2d 681 (1999)..………………………………...15 State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985)…..…………………….……..…....17 State v. Hill, 10 Wn. App. 851, 854, 520 P.2d 946 (1974).……………………...……….…...…18 State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).……………………………......…...20 State v. Kutch, 90 Wn. App. 244, 247, 951 P.2d 1139 (1998).………………...........13, 14, 15, 16 State v. McDaniels, 39 Wn. App. 236, 240, 692 P.2d 894 (1984)……………………………….15 State v. Ng, 110 Wn.2d 32, 42, 750 P.2d 632 (1988)...………………….………………………19 Stone v. Prosser Consol. Sch. Dist., 94 Wn. App. 73, 77, 971 P.2d 125 (1999)..……………….11 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)...…………………………………12 State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)..……………………………….17 State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980)...……………………………….12

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Writing Sample State v. Wanrow, 88 Wn.2d 221, 239, 559 P.2d 548 (1977)….…………………………….……18 State v. Young, 48 Wn. App. 406, 417, 739 P.2d 1170 (1987) ………………………………….18 Walker v. State, 67 Wn. App. 611, 615, 837 P.2d 1023 (1992)...………………………………..18 Other Cases Crowley v. McKinney, 400 F.3d 965, 969 (7th Cir. 2005)...…………………………...………….4 Fed. Deposit Ins. Co. v. Mallen, 486 U.S. 230, 240, 108 S. Ct. 1780, 100 L. Ed. 2d 265..………………………….………………………….………………………...10 Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 138 L. Ed. 2d 120.………………………….………………………….………………………9, 10 Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975)……………………………….……………………………..6, 7, 8, 10, 11 Ingraham v. Wright, 430 U.S. 651, 672, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977)………………………….………………………….…………………….4 Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) ………………………….………………………….……………………..7 Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978) ………………………….………………………….…………………..8, 9 Nichols v. Western Local Bd. of Edn., 127 Ohio Misc. 2d 30, 36, 805 N.E.2d 206 (2003).………………………….………………………….……………..............6 Ryans v. Gresham, 6 F. Supp. 2d 595, 601 (D. Tex. 1998)…………………………….…............4 State v. Locklear, 331 N.C. 239, 249, 415 S.E.2d 726 (1992).…………………………………..17 Shields v. Easterling, 676 So. 2d 293, 295 (Miss. 1996).………………………………………..18 Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 507, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969)……….………………………….……………………………………….5 United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th Cir. 2000).…………………………..17 Vukadinovich v. Bd. of Sch. Tr. of Mich. City Area Sch., 978 F.2d 403, (7th Cir. 1992).……………………………………………………………………………...……10

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Writing Sample B. Constitutional Provisions Const. art. IX, § 1………………………………………………………………………………...14 U.S. Const. amend. V ……………………………………………………………………..............7 C. Statutes RCW 9A.52.010 …………………………………………………………………….……….14, 16 RCW 9A.52.070……………………………………………………………………………….2, 14 RCW 9A.52.090………………………………………………………………………...........12, 15 RCW 13.24.020………………………………………………………………………………….14 RCW 26.09.002………………………………………………………………………………….14 RCW 28A.605.020…………………………………………………………………….5, 13, 14, 19 RCW 28A.635.020……………………………………………………………………………….19

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Writing Sample A. Statement of the Issue Did the trial court properly deny the defendant’s motion to dismiss when (a) Ms. Alsop’s conduct was so disruptive during Curriculum Night that no other parent could ask a single question, (b) the school district had to establish a special communications protocol just for Ms. Alsop to make her inquiries, and (c) Ms. Alsop’s confrontational conduct has been on-going for the past four years? Whether there was sufficient evidence for the trial court to convict Ms. Alsop of tres in the first degree when (a) Ms. Alsop prior received a tres warning letter from the police when she attended the Club Scout Meeting, (b) a reasonable person in Ms. Alsop’s shoes would have known that receiving a tres notice revokes his/her invitation to school functions, and (c) Ms. Alsop went to the school book fair even through her parent-teacher conference was scheduled at the istration Center? Did the trial court properly answer the jury’s question regarding the legality of the school’s tres notice when (a) the jury instructions contained all the elements of the crime of tres, (b) the jury instructions contained definitions of the technical “unlawfully” and “knowingly,” and (c) the judge made no personal comment in answering the jury? B. Statement of the Case Procedural History The defendant, Tanya E. Alsop, was charged under RCW 9A.52.070 with two counts of criminal tres in the first degree. 13. The defendant filed a motion asking the court to dismiss both counts of tres. 22. After an evidentiary hearing, the judge denied the motion to dismiss. 24. The case went to trial, and on August 29, 2007, the jury entered a verdict of guilty.

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Writing Sample 43. Judgment and Sentence were entered on October 17, 2007. 44. Defendant’s Notice of Appeal was timely filed on November 9, 2007. 47. The King County Superior Court heard the appeal on January 6, 2009, 48, and affirmed the decision of the District Court. Defendant then filed a Notice for Discretionary Review to the Court of Appeals, Division I, on January 16, 2009. 49. On March 3, 2009, the Washington Court of Appeals accepted review. 51. Statement of Facts Cascade Hills Elementary School was having its annual Curriculum Night on September 26, 2006, and parents of students were invited to attend an informative question and answer secession hosted by the school. RP 371. In one of the classrooms, Ms. Elliot had just concluded her presentation when Ms. Alsop went up and began asking a lengthy barrage of questions. RP 374. Ms. Alsop monopolized and dominated the session to the extent other parents were unable to ask a single question. RP 374. Eventually, the other parents left the school; many complained to school staff about Ms. Alsop’s disruptive manner. RP 378. Three days later, on September 29, 2006, a student was waiting for his parent in the grassy waiting area as he had been instructed by school staff. RP 379. Ms. Alsop happened to walk by and directed the student to walk across the busy parking lot to his parent’s vehicle. RP 379. Ms. Alsop’s actions endangered the safety of the student, and directly contravened the orders of school staff. RP 379. The events above are not isolated events; Ms. Alsop’s disruptive conduct has been a serious issue with the school district for several years. RP 381. In December of 2005, the school district to the initiative to set up a communications protocol between Ms. Alsop and Assistant Superintendent Dr. Mark Harris so that Ms. Alsop could make her inquiries with minimal

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Writing Sample disruption to the daily function of the school. RP 383. After one such request to tone down her behavior, Ms. Alsop replied saying “I will say what I want to say, to whom I want to say it, when I feel it is appropriate to say it.” RP 415. On October 2, 2006, in consideration of the totality of disruptive events caused by Ms. Alsop, the Renton School district informed Ms. Alsop in writing that she was tresed from Cascade Hills School and was prohibited from entering school grounds except to pick up or drop of her son, Demetri. RP 384. Ms. Alsop was further warned that violation of the tres would result in criminal prosecution. RP 384. Ms. Alsop requested to discuss the issuance of the tres notice with the school board but this was rejected because further discussion was not necessary or required as a matter of istration.

RP 419. However, the school board

modified Ms. Alsop’s tres notice to permit her to attend non-school related activities. RP 420. The school also arranged for her to attend the November, 2006, parent-teacher conference, not at the school, but at the istration Center so as to preclude the possibility of Ms. Alsop disruption the session. RP 393. On November 21, 2006, in willful violation of her tres notice, Ms. Alsop went to Cascade Hills Elementary School claiming she was there for the parent-teacher conference. RP 391. Despite being told to leave repeatedly, Ms. Alsop went to the book fair and walked around school premises until deputies arrived and arrested her. RP 394. On the evening of February 8, 2007, Ms. Alsop again tresed on school grounds to attend a science fair despite being told that same morning by Mr. Long that she was not permitted to attend. RP 401. Ms. Alsop knew she was in blatant violation of her tres notice yet refused to leave and was subsequently arrested a second time. RP 401.

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Writing Sample C. Argument I. THE TRIAL COURT PROPERLY DENIED MS. ALSOP’S MOTION TO DISMISS BECAUSE MS. ALSOP HAS NO PROTECTED INTEREST IN ACCESS TO THE SCHOOL AND DUE PROCESS WAS ACCORDED WHEN ISSUING THE TRES NOTICE. The trial court properly denied the motion to dismiss because the State proved beyond a reasonable doubt that Ms. Alsop had no protected interest in access to school grounds, and is not entitled to due process. See Ingraham v. Wright, 430 U.S. 651, 672, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977).

Courts review an alleged violation of due process de novo. See, e.g., State v.

Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006). And even if Ms. Alsop did have a protected interest, the State has shown the school district provided Ms. Alsop adequate due process, thus Ms. Alsop’s motion to dismiss is based on unfounded grounds. Ingraham, 430 U.S. at 672. Therefore, the trial court properly denied Ms. Alsop’s motion to dismiss. A. The trial court properly denied the motion to dismiss because Ms. Alsop does not have a protected interest in the right of access to school premises. 1. Ms. Alsop has no protected interest in right of access to school grounds because the constitution simply does not recognize such a right. Ms. Alsop does not have any protected interest in right of access to the school. In a recent case, the Seventh Circuit held that protections of the due process do not extend to the parent’s desire to be present on school grounds. Crowley v. McKinney, 400 F.3d 965, 969 (7th Cir. 2005). See also Ryans v. Gresham, 6 F. Supp. 2d 595, 601 (D. Tex. 1998) (“An exhaustive review of the case law pertaining to the constitutional right of parents to direct the education of their children discloses no holding even remotely suggesting that this guarantee includes a right to access to the classes in which one's child participates”). Therefore, the trial court correctly found that Ms. Alsop’s interest in access is not protectable by due process. 24.

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Writing Sample 2. If Ms. Alsop has a protected interest, she has lost her interest due to her disruptive conduct. Ms. Alsop lost her protected interest because she has engaged in disruptive conduct on school premises for almost four consecutive years. 4. Ms. Alsop can allege an interest in accessing the school three ways, however, none are viable as argued infra. Firstly, Ms. Alsop may allege she has parental access to the classroom pursuant to RCW 28A.605.020. Every school district board of directors shall … adopt a policy assuring parents access to their child's classroom and/or school sponsored activities for purposes of observing class procedure, teaching material, and class conduct: provided, that such observation shall not disrupt the classroom procedure or learning activity. RCW 28A.605.020. But, Ms. Alsop’s disruptive behavior during Curriculum Night clearly falls outside the scope of behavior mandated by the statute. 2. Ms. Alsop’s confrontational manner so dominated the discussion that it prevented other parents from getting involved in the curriculum discussion. 2. Thus, because of her disruptive conduct, Ms. Alsop lost her protected interest under RCW 28A.605.020. The Supreme Court has repeatedly affirmed the authority of school s to enforce standards of conduct within school grounds. See Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 507, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (reiterating the Court has repeatedly emphasized the need for affirming the comprehensive authority of school officials to prescribe and control conduct in the schools). In addition, the Washington state legislature empowers schools to regulate behavior by making willful disobedience towards school s a gross misdemeanor.

RCW 28A.635.020.

Schools are a learning environment and cannot

function properly if parents are allowed to disrupt activities ad libitum. Here, the school district 5

Writing Sample was acting within its discretion when it revoked Ms. Alsop’s right of access to school premises. Second, Ms. Alsop’s may allege a property interest in accessing the school, but this does not rise to the level of a protectable interest. While it is true that students have a property interest in education that is protected by due process, Ms. Alsop does not have the same right because she is not a student. Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). The Ninth Circuit has prior noted that a property interests exists only where there is a “legitimate claim of interest to a specific benefit.” Nieshe v. Concrete Sch. Dist., 129 Wn. App. 632, 641, 127 P.3d 713 (2005). While property interests have been held to exist both in the right to continued employment and in the right to education, no court has yet held that the right of parental access to classrooms embodies such an interest. See Mills v. Western Wash. Univ., 150 Wn. App. 260, 279, 208 P.3d 13 (2009); see also Goss, 419 U.S. at 574. Here, Ms. Alsop’s purported property interest in access to the school is derived from her interests as a mother in securing her son’s protectable right to education, but such a link is too attenuated to confer upon Ms. Alsop the same protected interests her son possesses. Finally, Ms. Alsop may allege liberty interests in right to companionship with her child, but this interest does not extend to the classroom setting. Courts have already held there exists no liberty interest in parents to attend school activities or to be present in school. Nichols v. Western Local Bd. of Edn., 127 Ohio Misc. 2d 30, 36, 805 N.E.2d 206 (2003). Schools are designed to accommodate students, not their parents. If parents arbitrarily choose to exercise their “right to companionship” with their children in school, classrooms would have to be enlarged and school resources expended to accommodate such parents. Such an option is simply not feasible; Ms. Alsop’s the right to companionship with her child does not apply to the school setting.

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Writing Sample B. Even if Ms. Alsop has a protected interest, the trial court properly denied the motion to dismiss because the school district provided adequate process to Ms. Alsop. The school district provided adequate process to Ms. Alsop. The Supreme Court has recognized that "[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint." Goss, 419 U.S. at 577. The Court has also emphasized that due process is not a fixed conception and is flexible in its application. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). In educational settings, due process is used to prevent unreasonably arbitrary action involving deprivation of rights by school authorities by minimizing factual errors during the review process. The amount of process required for any particular case is vague and undefined. The Constitution provides only that “no person shall be … deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V; see Goss, 419 U.S. at 584 (In cases where students are given temporary disciplinary suspension from school, the process due is generally no more than an "informal give-and-take between the student and the disciplinarian"). The Supreme Court has formulated a three-factor test that helps determine the amount of process needed. Mathews, 424 U.S. at 335. First, the Court considers whether the private interest affected by the deprivation is sufficiently significant. Id. Second, the Court examines the review procedure used and determines whether the risk of erroneous deprivation is acceptable. The Court also determines the probative value of providing additional procedural safeguards. Id. Finally, the court looks at the Government's interest to decide whether additional procedural requirements would impose unnecessary fiscal and istrative burdens." Id. In this case, the school district provided adequate process because all three factors of the Mathews test have been satisfied. Id. Firstly, Ms. Alsop’s private interest was only marginally affected because modified tres order only disallowed Ms. Alsop from coming onto school 7

Writing Sample grounds when she had no apparent reason to do so.

Secondly, the school’s procedures

minimized Ms. Alsop’s risk of erroneous deprivation because multiple written notices were prior issued to Ms. Alsop apprising her of her disruptive conduct. In consideration of Ms. Alsop’s petition to see the school board, the board modified Ms. Alsop’s tres conditions allowing her greater liberty to participate in non-school related events held on school grounds. 9. Thirdly, excessive istrative burdens and societal costs will have to be expended if every complaint brought by parents against school districts were to be formally heard. 1. The school district provided adequate process because Ms. Alsop’s private interest was protected by modifications to the tres order made by the school board. Ms. Alsop’s interests were not significantly affected by the tres order. Before the tres order was issued, the school district already accommodated Ms. Alsop’s interests by giving her a direct line of communication to the Assistant Superintendent Dr. Mark Harris so she could continue making enquiries regarding Demetri’s educational performance. 3. When tres order was issued, the school district made exceptions to the order allowing Ms. Alsop to pick Demetri up and drop him off at school. 4. The school subsequently modified the tres order allowing Ms. Alsop to attend non-school related activities. 9. Finally, the school district made special preparations for Ms. Alsop to attend the parent-teacher conference at the istration Center in recognition of her parental interests in Demetri’s education. 9. Because the tres order only prevented Ms. Alsop from coming to school grounds when school is in session, Ms. Alsop’s interest is not materially jeopardized. 2. The school district procedures minimized the risk of erroneous deprivation because it sent multiple written notices apprising Ms. Alsop of her disruptive conduct, and because the school allowed Ms. Alsop’s to communicate her objections through Counsel Long. The school district gave Ms. Alsop ample notice and opportunities to be heard. The

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Writing Sample Supreme Court has stated that "an elementary and fundamental requirement of due process … is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13, 98 S. Ct. 1554, 1562, 56 L. Ed. 2d 30 (1978). The Court has also made clear that the hearing requirement may not always encom a formal adversarial type hearing. Goss, 419 U.S. at 583. The school district gave Ms. Alsop adequate notice prior to issuing the tres notice. In our case, the school district wrote letters to Ms. Alsop over a period of four years to apprise her of the disruptiveness of her conduct. 4. On August 21, 2006, General Counsel Long sent a letter to Ms. Alsop before the school year began to encourage Ms. Alsop not to engage in disruptive conduct the following year.

1. Ms. Alsop was clearly “apprised … of the

pendency of [possible] action” against her, for she replied by saying “I will say what I want to say, to whom I want to say it, when I feel it is appropriate to say it.” Craft, 436 U.S. at 13; 1.

End of Writing Sample

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