State of Maine, Cumberland ss
Superior Court Civil Action Docket No. CV-04-98
"The fix is in"
"Do you think the Judge wrote his decision before the hearing?" was the first question I was asked, by the media, at a September 1st interview.
I had never considered this, but now I wonder.
On September 1, 2004, Judge Humphrey ruled that my son, an autistic 9 year old, posed a danger to the health and safety of citizens of Falmouth, Maine and ruled that banning him from the town's only playground was not an act of discrimination.
Because of the media's question, I reviewed Judge Humphrey's Decision and compared it to the transcript of the hearing. Judge Humphrey's Decision reads as if testimony never occurred, as if the evidence was never entered, as if an 11 hour hearing may or may not have happened in Cumberland County Superior Court.
Judge Humphrey's Decision never, at any time, refers to:
- Evidence: An email to staff, written by Principal Deb Johnson, in which she refers to "this boy" and "our kids."
- Evidence: The "snooping directive" written for staff, which instructed staff to follow the child and record everything he does
- Testimony and evidence of Officer Susi, who on December 1 threatened to arrest me, at the request of Principal Powers and Superintendent McCormack.
- Testimony of Greggus Yahr, expert witness, who stated, after reading the town's eighteen pages of snooping notes, Jan's behaviors were typical of children (playing tag) and that some behaviors regarded as problematic to adults, were typical of Asperger Syndrome.
- My testimony and evidence of "nine inches of assessments gone missing", and of daily events I witnessed on the playground.
- Evidence: The Service Plan in which the school wrote, "Jan's behaviors will be managed by his parents and team."
- Evidence: Jan's Positive Behavioral Plan, for "at home and in the community," developed by a private team in conjunction with the State of Maine Department of Developmental and Behavioral Services, dated July 3,2004. Falmouth received a copy on September 11,2004.
What is written in the Decision of Judge Humphrey? The Decision is strikingly similar to an Affidavit written for a Motion for Summary Judgment. Strikingly similar — so similar that paragraphs are nearly identical in words and meaning. The Summary Judgment Hearing never took place.
The Cumberland County Superior Court did have this Affidavit on July 20, one month before the Hearing. It is the Affidavit of Barbara Powers, Defendant; former Principal of Plummer-Motz School, in Falmouth. She is also the wife of a Cumberland County Judge. This Judge shares the same address as the office of Judge Humphrey.
Whether Judge Humphrey wrote his Decision before the hearing, or simply relied extensively on former Principal Power's Affidavit in composing his Decision, at the expense of fact and evidence, is an interesting point to ponder.
Because there are serious errors and omissions in Judge Humphrey's Decision, we filed an Appeal to the Supreme Court of Maine. On September 15, 2004, requesting a de novo review of all facts and the law in this case. The Appeal lists twelve counts, including:
- The Superior Court erred in failing to address, mention or otherwise review the conduct and discriminatory actions of the defendants as testified to by the numerous witnesses.
- The Superior Court erred in concluding that handicapped persons are not a protected class under the Equal Protection Clause of the Maine Constitution.
- The Superior Court erred in failing to give any weight to the uncontroverted testimony of the only testifying expert.
The Appeal was mailed from Kennebunk on September 15. We received our copy on September 17, and mailed copies to the media and to neurodiversity.com that same day. The Portland Press Herald and the Boston Globe printed stories, and neurodiversity.com posted the Appeal by September 19, 2004.
The Supreme Court of the State of Maine stated that they did not stamp their copy of the Appeal until September 28, 2004, too late for the filing of an Appeal. A statement from the Clerk of the Maine Superior Court indicated the problem, and wrote:
"There may be a problem with the timeliness of this appeal. The notice of appeal is date-stamped September 28, 2004. It is dated September 15 and recites that it pertains to a judgment entered August 31."
To which our attorney, Ronald Coles, replied, "I haven't the slightest idea why a clerk would have date stamped it on Sept. 28, 2004, which is 13 days later."
Neither do I. However, it is very true that on the day of the clerk's message, paperwork was not up to date in Maine's Courts. The Portland Press Herald published an article on that same day, entitled "Maine's courts closed this week as clerks catch up." We assumed that the delay stamping our Appeal was but one piece of the overdue paperwork that the state's clerks and Judges were trying to bring up to date.
In light of this error, Defendant's attorney Melissa Hewey agreed to the filing of an Ex-Parte Motion to Extend Time for Appeal. This Motion was filed with the Superior Court of Maine on October 13, 2004.
On October 19, Attorney Hewey changed her mind following a phone conversation placed by a clerk of courts. The clerk stated that Judge Humphrey requested she contact Defendant's attorney. It appears highly irregular that a Superior Court Judge would question the validity of an Ex-Parte Motion, and go to the trouble to contact only one attorney. It seems highly irregular that a Superior Court Judge would desire to schedule a Hearing about this. It has been two months since Judge Humphrey made his Decision to continue the exclusion of an autistic child from public property.
Today, an appeal to the Supreme Court has been effectively blocked. Seven Supreme Court Judges will not read the testimony and evidence that Judge Humphrey chose to withhold from his Decision. An impartial judiciary will not hear the facts.
Is the fix in? Or will an appeal of CV-04-98 be heard?