Lawyers debate in appeal between district, student

ST. PAUL, Minn. — Lawyers debated the role of school administrators and the admissibility of additional accusations against former teacher Andy Tate as they made oral arguments Wednesday in the Brittany Plamp appeal.

In July, a South Dakota jury found Tate guilty of committing a battery against Plamp while she was a student, but the jury did not hold the Mitchell School District liable and did not award any monetary damages to Plamp. She had asked for $750,000.

Richard Casey, Plamp’s lead attorney, said Wednesday in a St. Paul, Minn., courtroom that the trial judge erred in determining that nobody with authority to act — such as a principal or superintendent — had knowledge of Tate’s alleged pattern of misconduct prior to the battery.

“Ultimately, the level of their knowledge is a fact issue,” said Casey, who works for a Sioux Falls law firm. “It’s an issue that the jury should have been allowed to determine, and the judge should not have determined it as a matter of law.”

Dick Tieszen, who was the school district’s lead attorney during the trial, was lobbying Wednesday at the South Dakota Capitol and did not attend the St. Paul oral arguments. The district’s oral argument was presented instead by Naomi Cromwell, a colleague from Tieszen’s Pierre law office.

Cromwell said legal precedents require that, in order to prove liability on the part of the district, a person with authority to take corrective action must have had knowledge of Tate’s prior alleged misbehavior. The trial judge was correct in determining that the school counselor who served as a centerpiece of Plamp’s case was not such an authority, Cromwell said.

“The reality of it is that a counselor and teacher are of the same level in the hierarchy of the school. … The school counselor is not a supervisor of a teacher.”

Casey said the judge’s exclusion of additional testimony by the counselor, Judy Thiesse, was crucial to the outcome of the trial. He said Thiesse would have testified about additional alleged misconduct by Tate that happened prior to Tate’s touching of Plamp. That extra testimony would have included comments from students who allegedly said Tate liked cheerleaders and gave better grades to attractive girls, Casey said.

“We believe that is circumstantial evidence that should have come in to show that if Ms. Thiesse knew that, that kind of knowledge must also be known by the principals.”

Cromwell called Casey’s argument an attempt to “set up a new standard.”

“Effectively, it’s the ‘must have known’ standard, instead of actual knowledge,” Cromwell said.

Plamp’s civil suit stemmed from an interaction between her and Tate that occurred while they were alone in his classroom the morning of May 9, 2006. Plamp said at trial last year that Tate touched her in a sexual manner. Tate admitted touching Plamp but denied having sexual motivations. He said he touched her out of concern for her health, in order to point out signs of her eating disorder.

Plamp also was among four girls whose 2006 allegations of improper conduct by Tate led to his being indicted on the criminal charge of stalking. He pleaded no contest to four counts of the charge and resigned his teaching job.

Plamp filed her lawsuit in January 2007. She alleged liability on the part of the school district for sexual harassment, discrimination and battery by Tate. The case went to trial in June 2008 at the federal courthouse in Sioux Falls and received a verdict in July. Plamp filed her appeal later in July.

Until Wednesday, the appeal had consisted solely of document filings. Lawyers for each of Plamp, the school district and Tate made oral arguments to a panel of three judges Wednesday at the Warren E. Burger Federal Building and U.S. Courthouse in St. Paul.

Tate, who was not sued by Plamp but was brought into the suit as a third-party defendant at the school district’s request, was represented Wednesday by Sioux Falls lawyer Michael Tobin.

Tobin said the appellate judges should respect the trial jury’s verdict.

“The jury disagreed with the plaintiff’s theory and returned a verdict in favor of the defendant, finding that the school district will not be responsible for the battery that my client committed,” Tobin said. “In this appeal, Miss Plamp basically does a frontal attack on that jury verdict, trying to argue that the jury simply got it wrong.”

The appellate judges are expected to issue a ruling sometime later this year, Casey said in answer to an e-mail from The Daily Republic. Tieszen, in a phone interview, said the judges can uphold the trial verdict or determine that errors occurred. If they determine that errors occurred, they must then determine whether the errors were serious enough to justify granting a new trial.

The Daily Republic listened to Wednesday’s proceedings via audio files posted on the Internet by the federal court system.

Tags: mitchell school district, news, plamp