Instead of playing itself out as a recall with clipboards, petitions and doorbell-ringing, the anti-Berry drama--replete with piles of legal briefs and legal bills--moved south to Central Avenue law firms and Maricopa County Superior Court. So far, Berry has triumphed. Maricopa County Superior Court Judge Robert Gottsfield issued a temporary restraining order in July, prohibiting the board from investigating or censuring Berry. Herf then filed a special action asking the Arizona Court of Appeals to intervene; the court refused to consider the case.

In September, Gottsfield granted Berry's motion for summary judgment, permanently prohibiting the board from implementing the Procedure or another method like it. Harter, Karpman and Foster voted in October to appeal the decision. Mackey, who was not originally named as a defendant but was ordered added by the court, voted against an appeal.

Herf filed the appellants' opening brief last week. The appeal process typically takes up to three years, but Herf has requested an expedited consideration; a decision could come as early as this summer, he claims.

Herf doubts the case will have far-reaching implications. "I think everybody thought they could do this if they wanted to before the Madison issue came up," he says.

Jim Ullman, a member of the Arizona Board of Education and a Phoenix attorney who specializes in school law, has studied Berry v. Foster from an academic angle. He hasn't found any case law that directly supports the board's case, but "frankly," he says, "I think it would be helpful for a school district to have this authority" as long as free speech could be protected.

There's a chance the court will throw the case out, because Berry originally voted for the Procedure and therefore waived her claims, Ullman believes.

But Ullman hopes the case is judged on its merits.
"I believe there is very little law in the United States to determine if a governing board by policy can discipline one of its members, and therefore the Court of Appeals decision could make this a very interesting precedent," he says.

Tom Pickrell filed a brief in support of the board's position--on behalf of the Arizona School Boards Association--as part of the special action. He says the association will do the same for the appeal. Pickrell and Herf say the board's rights to investigate and censure are implicit in law, and to deny those rights is a violation of the First Amendment.

Sue Gerard counters: "You don't have to be a lawyer to look at the law on school districts. . . . They don't have the authority to be censuring a fellow board member. The recourse is recall or the next election to get rid of somebody."

Gerard and the Center for Law's Tim Hogan marvel at the chutzpah it takes to rack up private attorney fees when Arizona lawmakers are balancing the state budget on the backs of the students.

"Clearly, some kind of public money is being spent on this that I imagine could be put to better use," Hogan says.

Before the appeal, Herf's bill was close to $28,000. He nudged the board toward the appeal, promising to keep costs below $5,000. (Berry estimates that the legal bill comes closer to $36,000, including the cost of preparing the Procedure and other expenses not included in the actual cost of litigation.) Those board members who favor the appeal, along with Herf, defend the expenditure by reasoning that most of the tab will be picked up by the district's insurance company, Arizona Risk Retention Trust.

But, admits trust manager Jim Mullen, Arizona Risk Retention Trust money is school money. The trust is a nonprofit organization supported solely by its members--Madison and 135 other school districts in Arizona. The company provides coverage on everything from automobiles to burglary to--in this case--public official liability." It is not unusual for school boards to be sued, Mullen says, but school-board members rarely sue one another. The trust agreed to pay for the defense at the trial court level and up to $5,000 for the appeal. The trust's board of directors will vote early this year to determine whether to cover the $7,000 special action. @rule:

@body:Carolyne Berry's term on the Madison School Board is up at the end of 1994, and, according to Berry's 1993 Christmas letter, she won't be seeking reelection.

Somehow, Chaunci Aeed has gotten her hands on the Berry Christmas letter. She and others keep copies as trophies. Berry's letter reads, in part, "I have one more year remaining as a school-board member. For those of you who are asking--no, I will never run for public office again. I've done my public service. I plan to enjoy the few years before the children go to college and travel, travel, travel." Most likely, the appeal of Berry v. Foster won't be considered until Berry's long gone. Wishful thinking, according to Aeed.

"I don't believe that she's not going to run again for any public office. She just doesn't have it in her" to quietly fade away, Aeed says. Next time--if there is a next time--Berry's foes say they're through being nice.

"If she runs again," Scott Gardner says, "I'm going to get a billboard that says, 'Anybody but Carolyne.' That's how I feel. Anybody will do a better job for those schools than Carolyne. Anyone.

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