Legal Opinion on the Legality of the Rules - Essay Example

Memorandum TO SUPERVISING ATTORNEY FROM XXX LEGAL OPINION ON THE LEGALITY OF THE RULES AND REGULATIONS PROMULGATED PURSUANT TO A CONGRESS ENACTMENT ENTITLED “CELL PHONE EDUCATION REGULATION ACT” OR (CPERA) DATE : 23 December 2008 FACTS Congress passed a statute entitled the Cell Phone Education Regulation Act (CPERA) to confront the possession and use of cellular phones by students in primary schools. This was passed to address the problem regarding students’ ability to cheat on exams and other assessments by using text messaging and other cellular functions, as well as the inability of school administration to address and control the problem. This statute provided for the establishment of the Cellular Educational Service (CES), an agency to oversee the creation and enforcement of the necessary rules and regulations to meet the objectives of CPERA. The CES was claimed to have unilaterally enacted a series of rules and regulations that required all students to undergo a search of their clothes, backpacks, lockers, and desks each morning. The rules also permitted random searches to take place. A hidden provision in the regulation allowed for enforcement officials to target their investigations more towards female students than male students, since studies had shown that females talk on cellular phones more often than males. Penalties for violating CES rules and regulations include the following: for a first offense, no hearing is held and the student receives a written warning; for a second offense, a hearing conducted by school officials is held and an automatic suspension is handed down; for a third offense, a full hearing is held by a board for the CES, after which a guilty finding results in expulsion, arrest, and incarceration for 30 days. School officials are also permitted, under the regulations, to permanently keep any cellular phones they confiscate. It is alleged that there were no notice was given or hearings held prior to the enactment of the rules and regulations. Lastly, there was an incident where a student was immediately expelled from school, arrested, and incarcerated without the opportunity to appear and defend herself against the charges, and that the cellular phone was taken by the authorities, never returned to such student nor her parents. ISSUES 1. Whether or not the law creating an agency that has the power to promulgate rules and regulations that do not require notice and hearing for violation of the law is valid. 2. Whether or not there was an invalid delegation of power by Congress to the CES. RULE Constitutional Provision The Fourth Amendment of the United States Constitution provides that there shall be no violation of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and that no warrants shall issue, except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized (U.S. Const. amend. IV.). The Fifth Amendment of the US Constitution further provides that no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation (U.S. Const. amend. V.). The Sixth Amendment of the US Constitution also provides that in criminal prosecutions, the accused shall have the right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense (U.S. Const. amend. VI.). Reasonableness of Search and Seizure Thus, in order to determine the reasonableness of a school search, there must be a balance of the need to search and the invasion, which the search entails, the individual’s legitimate expectations of privacy and personal security, and finally the need for the government for effective methods dealing with breaches of public order (New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720, 21 Ed. Law Rep. 1122 (1985). Courts, in reviewing cases involving search and seizure, must take into account circumstances such as a) the threat posed to the student body by such illegal activity suspected (State v. Drake, 139 N.H. 662, 662 A.2d 265, 102 Ed. Law Rep. 605 (1995); b) the pervasiveness and seriousness or significance of the problem to which the search was directed; c) the requirement to make the search without delay; d) the age of the child needed to be searched; and e) the history and record of the said student in school (Matter of Ronald B., 61 A.D.2d 204, 401 N.Y.S.2d 544 (2d Dept 1978). The United States Supreme Court has declared that “it can hardly be argued that either students or teachers shed their constitutional rights. . . at the schoolhouse gate” (Tinker v Des Moines Independent Community School Dist. (1969) 393 US 503, 21 L Ed 731, 89 S Ct 733, 49 Ohio Ops 2d 222 and that “the Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted,” (West Virginia State Bd. of Educ. v Barnette (1943) 319 US 624, 87 L Ed 1628, 63 S Ct 1178, 147 ALR 674) In Klump v. Nazareth Area School Dist., 425 F. Supp. 2d 622, 209 Ed. Law Rep. 82 (E.D. Pa. 2006), the Court held that the teachers alleged action of seizing students cell phone, was not considered as unreasonable search or seizure, if it is found that student had violated schools policy prohibiting use or display of cell phones during school hours (622). However, the Court also ruled in the same case that the alleged action of an assistant principal and teacher, in calling other students from a students cell phone after seizing it because of students violation of rule prohibiting display of cell phones in school, if it is proven, would constitute an unreasonable search, as the said assistant principal and teacher had no reason to suspect that such search would reveal that student himself was violating another school policy, and instead hoped to utilize his phone to catch other students violations (622). In one case, the Court ruled that a student had no legitimate expectation of privacy in a school locker, when there was a written policy by the school in retaining ownership and possessory control of the lockers, and when the students had received notice of that policy (In Interest of Isiah B., 176 Wis. 2d 639, 500 N.W.2d 637, 83 Ed. Law Rep. 419 (1993). Most courts in decided cases, have concluded that searches made by school officials are reasonable, and therefore constitutional, if the said searches were made on the basis of reasonable suspicion (Black 17). In once instance, the court based his conclusion on the basis of a state statute permitting school searches based on reasonable suspicion (Black 18). In another case, the court found that the reasonable suspicion standard was applicable to searches by college-level school officials (Black 19). In yet another case, a court has held that searches by school officials may be reasonable for constitutional purposes even in the absence of reasonable suspicion, if the students expectation of privacy is minimal and is outweighed by the governmental interest involved (Black 20). Other courts have also concluded that probable cause is required for a constitutional search by school officials in cases that deal with searches involving a law enforcement or security officer (Black 21), in cases that involve searches by college-level school officials (Black 22), and in cases decided under particular state statutes or constitutional provisions (Black 23). In determining the constitutionality of a school search, some courts have found the presence of probable cause sufficient to establish the said constitutionality without even reaching the question of whether a lesser standard might also meet constitutional muster (Black 24). In one case, the court held that a warrant is required for a constitutional search by school officials (Black 25). Other standards applied by some courts are that a search by school officials, to be constitutional, must further the schools educational interests (Black 26), and must involve the reasonable exercise of supervisory authority on the part of the school (Black 27), and that the search must be reasonable under all the circumstances (Black 28). In the case of In Interest of L. (1979, App) 90 Wis 2d 585, 280 NW2d 343, the court ruled that the exclusionary rule applies to unconstitutional searches by public school officials, so that evidence seized in such a search may be suppressed in a juvenile court proceeding (585). The court held that the exclusionary rule insures that the constitutional guaranty against unreasonable searches and seizures does not become an expression without substance (585). The court also reasoned that the protections of the Fourteenth Amendment and the Bill of Rights also apply to juveniles (585). Proceedings in juvenile delinquency cases, although are not subject to all the formal requirements of an adult criminal prosecution, need to provide the basic elements of due process (585). The court also held that a juvenile delinquency proceeding is a court proceeding brought by the state which can result in the deprivation of the minors liberty, and that the Constitution’s provision on due process does not allow such deprivations to be obtained on the basis of illegally obtained evidence (585). Hence, the court concluded that the exclusionary rule applies (585). Due Process Aside from the above-mentioned cases, Courts have also held that procedures in school are subject to due process. However, there is a distinction as between public and private institutions of learning (Schopler, 903). In public institutions, a students right to a hearing, or to a formal hearing of a judicial nature, may be derived from the due process clause of the federal or state constitution (Schopler, 903). The Court ruled that a public school student threatened with suspension from school is entitled to the protections of procedural due process (Demers ex rel. Demers v. Leominster School Dept., 263 F. Supp. 2d 195, 178 Ed. Law Rep. 130 (D. Mass. 2003), although the process required is minimal (Martin v. Shawano-Gresham School Dist., 295 F.3d 701, 167 Ed. Law Rep. 61 (7th Cir. 2002). The due process clause in schools, where there is a notice and a hearing required before a student maybe excluded from school, these procedures however need not be as thorough as those found in the criminal or juvenile systems (Rogers v. Gooding Public Joint School Dist. No. 231, 135 Idaho 480, 20 P.3d 16, 152 Ed. Law Rep. 303 (2001). The minimum requirement of due process is that student facing suspension and consequent interference with a protected property interest be given some kind of notice and afforded some kind of hearing (Porter v. Ascension Parish School Bd., 393 F.3d 608, 194 Ed. Law Rep. 497 (5th Cir. 2004). In Thompson v. Sacramento City Unified School Dist., 107 Cal. App. 4th 1352, 132 Cal. Rptr. 2d 748, 175 Ed. Law Rep. 300 (3d Dist. 2003), the Court ruled that “due process of law in the decision to suspend a public school student requires that there be sufficient cause determined through fundamentally fair procedures” (748). Aside from this, due process of law demands that the administrator who imposes a suspension on a public school student “must make a fair and unbiased attempt to determine what happened and if it justifies suspension” (748). Due process requires, in connection with the suspension of a public school student for 10 days or less, that the student be given, although informally, an oral or written notice of the charge against him or her and, if the student refutes it, an explanation of the evidence the authorities have and an opportunity or a chance to present his or her side of the story (Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). The hearing afforded to a public school student facing a suspension of 10 days or less need not be a formal one wherein there must be an opportunity to secure counsel, call witnesses, or cross-examine witnesses, in order to comport with due process (Hammock ex rel. Hammock v. Keys, 93 F. Supp. 2d 1222, 143 Ed. Law Rep. 915 (S.D. Ala. 2000). The hearing can be an informal give-and-take between the student and the disciplinarian or school concerned (1222). There must be no delay between the time notice is given and the time of the hearing since in most of these cases the disciplinarian may discuss the alleged misconduct with the student minutes after it has occurred (Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). Those students whose presence impose a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school, but the necessary notice and rudimentary hearing should follow as soon as practicable (Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). Also, the Court ruled that notice to identity of accusers and opportunity to cross-examine accusers is not required or part of due process requirement for suspension of student from school for 10 or fewer days (Granger v. Klein, 197 F. Supp. 2d 851 (E.D. Mich. 2002). Hearsay testimony in suspension proceedings may be used, and a student is not denied due process in suspension proceedings when the school fails to provide a list of witnesses prior to the hearing (Covington County v. G.W., 767 So. 2d 187, 147 Ed. Law Rep. 752 (Miss. 2000). On the other hand, when the suspension exceeds 10 days, formal procedures may be required (Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). In J.S. ex rel. Duck v. Isle of Wight County School Bd., 362 F. Supp. 2d 675, 197 Ed. Law Rep. 169 (E.D. Va. 2005), the Court enumerated the requirements to satisfy due process in cases of long term school suspension, such as: (1) the student must receive notice of the charges against him or her; (2) there must be a hearing, at which the student may present a defense and testimony or statements of witnesses on his or her behalf; (3) the student should be given the names of witnesses against him or her and a summary of the testimony each is expected to give; and (4) if the hearing is not before the body that will make the ultimate disciplinary decision, then the hearing body should file a written report of its findings and make the report available to the student (675). Faithful adherence to the substantial and competent evidence standard of proof assures the protection of a students constitutionally protected interests in a suspension hearing where the burden of proof and evidentiary rules imposed are not as stringent as in a formal trial (Board of Educ. of City School Dist. of City of New York v. Mills, 293 A.D.2d 37, 741 N.Y.S.2d 589, 164 Ed. Law Rep. 851 (3d Dept 2002). In expulsion procedures, there must be also compliance with due process, in that, the procedures must provide the student with notice of the charges against him or her, notice of the time of the hearing and a full opportunity to be heard, but need not take the form of a judicial or quasi-judicial trial (Remer v. Burlington Area School Dist., 286 F.3d 1007, 163 Ed. Law Rep. 625 (7th Cir. 2002). The hearing should be made after the giving of the notice to enable the student to prepare a response (Fielder v. Board of Ed. of School Dist. of Winnebago in Thurston County in State of Neb., 346 F. Supp. 722 (D. Neb. 1972) wherein the student has the chance to refute the factual basis for the reasons advanced (722), by presenting witnesses on his or her own behalf (Black Coalition v. Portland School Dist. No. 1, 484 F.2d 1040 (9th Cir. 1973) and where the student can confront and cross-examine accusing school officials and adverse witnesses (Dillon v. Pulaski County Special School Dist., 594 F.2d 699 (8th Cir. 1979). The Courts ruled however, that a student facing expulsion does not have a procedural due process right to cross examination, as the traditional role of cross examination, establishing reliability, may be satisfied in the expulsion setting through the preliminary interviewing of a witness by school officials, who have extensive experience with juveniles (B.S. ex rel. Schneider v. Board of School Trustees, Fort Wayne Community Schools, 255 F. Supp. 2d 891, 176 Ed. Law Rep. 659 (N.D. Ind. 2003). Hearsay evidence may be introduced in expulsion procedures which, does not conflict with the due process requirement (McClain v. Lafayette County Bd. of Ed., 673 F.2d 106, 3 Ed. Law Rep. 298 (5th Cir. 1982), but in cases of factual dispute on the propriety of an expulsion, there must be readily available testimony be presented to the fact finders in person, at least in the absence of any extenuating circumstances, to comply with the due process requirement (DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972). Due process requires that a university base the expulsion of a student on substantial evidence (Remer v. Burlington Area School Dist., 286 F.3d 1007, 163 Ed. Law Rep. 625 (7th Cir. 2002). Since the provisions of the due process clause in the federal constitution or a state constitution are inhibitions upon the power of the government and its agencies, and not upon freedom of action of private persons (Schopler, 903), any right of a student to be given a hearing, or a formal hearing of a judicial nature, prior to his suspension or expulsion from a private institution of learning can rest only upon the specific and implied terms of the contract of admission (John B. Stetson University v Hunt (1924) 88 Fla 510, 102). These terms are often inconsistent with the students claim that he is entitled to a hearing (Barker v Trustees of Bryn Mawr College (1923) 278 Pa 121, 122 A 220). Although there maybe be conflict as to whether the notice of charges is required, all the authorities agree that students may not be dismissed or suspended without a fair hearing (State ex rel. Sherman v Hyman (1942) 180 Tenn 99, 171 SW2d 822). There may however be some decisions where in cases involving private institutions of learning the necessity of notice (Anthony v Syracuse University (1928) 224 App Div 487, 231 NYS 435, and hearing (Dehaan v Brandeis University (1957, DC Mass) 150 F Supp 626), has been denied, where the terms of the contract supported the courts conclusion. Where a hearing is required, the failure on the part of the school authorities to afford it is not cured by proof, introduced in judicial proceedings, that the student is guilty of the offense charged (Bishop v Rowley (1896) 165 Mass 460, 43 NE 191). Assuming that a student is entitled to a hearing prior to his expulsion from an institution of learning, a question arises as to what kind of hearing must be given to him. The weight of authority is to the effect that no formal hearing is required (Smith v Board of Education (1913) 182 Ill App 342,) that is, that the hearing need not be conducted with all the formalities of a trial in a court (Koblitz v Western Reserve University (1901) 21 Ohio CC 144, 11 Ohio CD 515), even where a statute requires a hearing (Morrison v Lawrence (1902) 181 Mass 127, 63 NE 400). Under this view it has been held not necessary that formal (written) charges be preferred, that evidence in support of the charges be introduced at the hearing, that the witnesses be heard under oath, that the student be represented by counsel, that he be confronted with the witnesses against him, that he be permitted the privilege of cross-examination as a matter of right, or that the hearing be governed by the strict rules of evidence (Schopler, 903). Delegation of Powers Furthermore, the delegation to an agency of the task of administering a statute is considered as valid if the statute is complete when it leaves the legislatures hands (Bourdeau, 1). A statute is considered “complete and validly delegates administrative authority when the administrative agency is not required to make any determination as to what the law is, and the statutes provisions are sufficiently clear, definite, and certain to enable the agency to know its rights and obligations” (Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). Although the legislature may not delegate legislative power as such to an administrative or executive authority, it has the power to authorize an administrative or executive department to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations, but the standards by which the granted powers are to be administered must be clearly and definitely stated in the authorizing act and may not rest on indefinite, obscure, or vague generalities, or upon extrinsic evidence not readily available (Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151 (1996). In one case, the court held that in order for a delegation of regulatory authority to be valid, the legislature must provide sufficient identification of the following: 1) persons and activities potentially subject to regulation; 2) the harm sought to be prevented; 3) the general means intended to be available to the administrator to prevent the identified harm (Stofer v. Motor Vehicle Cas. Co., 68 Ill.2d 361, 12 Ill. Dec. 168, 369 N.E.2d 875 (1977). Hence, provision of statute purporting to impose duty of administration upon a board must sufficiently define and ascertain the rights, obligations and limitations under the statute (State ex rel. Anderson v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957). ANALYSIS Given the provisions of the US Constitution and decided cases, it is important therefore that any search and seizure conducted must still comply with the provisions of the Constitution and that it must be based atleast on reasonable suspicion or the student committed a violation of the school’s policy. However, if there is a written policy as to the retention of possession and control of lockers by the school, students must have been notified of this policy and thus students have no legitimate expectation of privacy in such lockers. In the case at hand, the random searches made by school authorities seem not in compliance with the requirement of the Constitution that there must be a reasonable suspicion or a violation committed by a student to justify a search and seizure. There were no school policies notifying students of such limitations. Furthermore, there must be compliance with the requirements of due process, that atleast there must be some kind of notice and hearing, even though informal, in cases of suspension or expulsion. There maybe a different standard applied in a public institution compared to a private institution. But nevertheless, in one case, all authorities are in agreement that there must be some kind of notice or hearing in cases of suspension or expulsion of students. In the case at hand, there were incidents that no notice and hearing was given to a student who was immediately expelled and incarcerated. This then does not comply with the requirements of due process. Finally, the legislature may not delegate legislative power to an administrative authority, and although the legislature has the power to authorize an administrative authority to make rules and regulations to carry out a legislative purpose, the standards must however be clearly and definitely stated in the authorizing act and may not rest on indefinite, obscure, or vague generalities. In the instant case, no limitations or standards was given to the CES as to the determination of rules and regulations, thus, an invalid delegation of powers. The rules and regulations which imposes incarceration, being penal in nature, must therefore require sufficient due process provided for under the Constitution. CONCLUSION Given the violation not only of the requisites of reasonable searches and seizure, due process and valid delegation of powers, the law, as well as the rules and regulations must be stricken down for being an invalid delegation of powers by Congress and violation of the US Constitution. References Anthony v Syracuse University (1928) 224 App Div 487, 231 NYS 435. Barker v Trustees of Bryn Mawr College (1923) 278 Pa 121, 122 A 220). Bishop v Rowley (1896) 165 Mass 460, 43 NE 191). Black, Alexander (1995). 31 American Law Reports, 5th. 229. p. 17. Black Coalition v. Portland School Dist. No. 1, 484 F.2d 1040 (9th Cir. 1973). Board of Educ. of City School Dist. of City of New York v. Mills, 293 A.D.2d 37, 741 N.Y.S.2d 589, 164 Ed. Law Rep. 851 (3d Dept 2002). Bourdeau, John (2008). 73 C.J.S. Public Administrative Law and Procedure. B.S. ex rel. Schneider v. Board of School Trustees, Fort Wayne Community Schools, 255 F. Supp. 2d 891, 176 Ed. Law Rep. 659 (N.D. Ind. 2003). Covington County v. G.W., 767 So. 2d 187, 147 Ed. Law Rep. 752 (Miss. 2000). Dehaan v Brandeis University (1957, DC Mass) 150 F Supp 626). DeJesus v. Penberthy, 344 F. Supp. 70 (D. Conn. 1972). Demers ex rel. Demers v. Leominster School Dept., 263 F. Supp. 2d 195, 178 Ed. Law Rep. 130 (D. Mass. 2003). Dillon v. Pulaski County Special School Dist., 594 F.2d 699 (8th Cir. 1979). Fielder v. Board of Ed. of School Dist. of Winnebago in Thurston County in State of Neb., 346 F. Supp. 722 (D. Neb. 1972). Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975). Granger v. Klein, 197 F. Supp. 2d 851 (E.D. Mich. 2002). Hammock ex rel. Hammock v. Keys, 93 F. Supp. 2d 1222, 143 Ed. Law Rep. 915 (S.D. Ala. 2000). In Interest of Isiah B., 176 Wis. 2d 639, 500 N.W.2d 637, 83 Ed. Law Rep. 419 (1993). In Interest of L. (1979, App) 90 Wis 2d 585, 280 NW2d 343. John B. Stetson University v Hunt (1924) 88 Fla 510, 102). J.S. ex rel. Duck v. Isle of Wight County School Bd., 362 F. Supp. 2d 675, 197 Ed. Law Rep. 169 (E.D. Va. 2005). Klump v. Nazareth Area School Dist., 425 F. Supp. 2d 622, 209 Ed. Law Rep. 82 (E.D. Pa. 2006). Koblitz v Western Reserve University (1901) 21 Ohio CC 144, 11 Ohio CD 515). Martin v. Shawano-Gresham School Dist., 295 F.3d 701, 167 Ed. Law Rep. 61 (7th Cir. 2002). Matter of Ronald B., 61 A.D.2d 204, 401 N.Y.S.2d 544 (2d Dept 1978). McClain v. Lafayette County Bd. of Ed., 673 F.2d 106, 3 Ed. Law Rep. 298 (5th Cir. 1982). Morrison v Lawrence (1902) 181 Mass 127, 63 NE 400). New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720, 21 Ed. Law Rep. 1122 (1985). Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151 (1996). Porter v. Ascension Parish School Bd., 393 F.3d 608, 194 Ed. Law Rep. 497 (5th Cir. 2004). Remer v. Burlington Area School Dist., 286 F.3d 1007, 163 Ed. Law Rep. 625 (7th Cir. 2002). Rogers v. Gooding Public Joint School Dist. No. 231, 135 Idaho 480, 20 P.3d 16, 152 Ed. Law Rep. 303 (2001). Schopler, E. H. (1958). 58 American Law Reports, 2d 903. Smith v Board of Education (1913) 182 Ill App 342). State v. Drake, 139 N.H. 662, 662 A.2d 265, 102 Ed. Law Rep. 605 (1995). State ex rel. Sherman v Hyman (1942) 180 Tenn 99, 171 SW2d 822). State ex rel. Anderson v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957). Stofer v. Motor Vehicle Cas. Co., 68 Ill.2d 361, 12 Ill. Dec. 168, 369 N.E.2d 875 (1977). Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). Thompson v. Sacramento City Unified School Dist., 107 Cal. App. 4th 1352, 132 Cal. Rptr. 2d 748, 175 Ed. Law Rep. 300 (3d Dist. 2003). Tinker v Des Moines Independent Community School Dist. (1969) 393 US 503, 21 L Ed 731, 89 S Ct 733, 49 Ohio Ops 2d 222. U.S. Const. amend. IV, V and VI. West Virginia State Bd. of Educ. v Barnette (1943) 319 US 624, 87 L Ed 1628, 63 S Ct 1178, 147 ALR 674). MOTION REQUESTING ISSUANCE OF PROTECTIVE ORDER PENDING OUTCOME OF APPEAL BY THE SCHOOL BOARD TO THE HONORABLE UNITED STATES JUDGE: COMES NOW, ________, Parents of Defendant herein, who makes and files this Motion Requesting Issuance of Protective Order Pending Outcome of Appeal, and in accordance therewith would show unto the Court as follows: 1. That ____________ has been expelled, arrested and incarcerated by ______________ School due to an alleged violation of Cell Phone Education Regulation Act. There is however serious constitutional question as to whether the said law effectively denied the Defendant of the fourth, fifth and sixth amendment rights. 2. In order to satisfy the concerns of the Court and the United States Judge, and at the same time protect the fourth, fifth and sixth amendment rights of the defendant, it is requested that the Court enter a protective order pursuant to Fed. R. Civ. P. 26(c). 3. In United States v. United Fruit Co., 410 F2d 553, 556 (CA5 1969), the Court upheld and granted a protective order, being an inherent authority of the Court over its own processes to prevent abuses. 4. The Cell Phone Education Regulation Act, which created an agency called Cellular Education Service, has however unduly delegated powers to the said administrative agency in violation of the constitutional law on undue delegation of powers. In Stofer v. Motor Vehicle Cas. Co., 68 Ill.2d 361, 12 Ill. Dec. 168, 369 N.E.2d 875 (1977), the court held that in order for a delegation of regulatory authority to be valid, the legislature must provide sufficient identification of the following: 1) persons and activities potentially subject to regulation; 2) the harm sought to be prevented; 3) the general means intended to be available to the administrator to prevent the identified harm. These were not complied with by the said Act and which effectively deprived herein defendant of due process of law. WHEREFORE, PREMISES CONSIDERED, Defendant prays the Court grant this Motion requesting issuance of a protective order. Respectfully submitted, Read More