Law of case doctrine not limit remand of earlier decision under facts of the case: MKJ v. BOURBON COUNTY BOARD OF EDUCATION (COA 8/29/2008)

APPEALS:  Law of case doctrine not applied to the facts of case in remand permitting issues not addressed on appeal to be prosecuted against school board
DATE RENDERED: 8/29/2008
BUCKINGHAM, Senior Judge.
Please note the procedural history of this appeal as it came up first on an appeal of a board of education expulsion of a student which was then remanded by the COA, and upon the remand the student sought to raise issues that the board and the circuit court thought were limited by the earlier remand or already addressed by the law of the case doctrine.  The COA held in THIS appeal that neither was the case.

M.K.J. was expelled as a student from Bourbon County High School by the Bourbon County Board of Education in May 2002. In August 2002 he filed an action in Circuit Court seeking to have the expulsion set aside and seeking damages for violation of 42 U.S.C. § 1983, 20 U.S.C. § 1402 et seq. , 707 KAR 1, and Article 2 of the Kentucky Constitution.  When the circuit court denied M.K.J.’s motion to have the expulsion set aside, he appealed to the COA, and a previous panel rendered an opinion that determined the Board’s action was arbitrary, reversed the circuit court’s decision, and remanded the case to that court with directions to remand the matter to the Board to vacate its decision expelling M.K.J. See M.K.J. v. Bourbon County Board of Education (2003-CA-000352-MR).
Upon the remand,  M.K.J. sought to pursue the remaining causes of action in the circuit
      court which denied him that right, holding that the COA had limited the circuit court’s jurisdiction to remanding the matter to the Bourbon County Board of Education. This second appeal by M.K.J. followed. The COA this second time concluded the circuit court erred and therefore we reversed and remanded.
As a background note to this second appeal, the incident that led to this litigation occurred while M.K.J. was a student at Bourbon County High School when the school received a bomb threat which led school administrators to send for explosive-detection dogs. One of the dogs brought by the canine handlers was trained to detect contraband substances. This dog indicated that such substances might be present in M.KJ.’s car, which was parked in the school parking lot.  A search of the car found contraband, the student was suspended
and eventually the school board conducted a hearing ruled to expel the
      student.  Suit was then filed by the student.

The question on this second appeal was the propriety of the circuit court’s order limiting the issues upon remand.  The COA concluded that although this court made no specific mention of M.K.J.’s due process claims in its earlier opinion, it clearly did not affirm any dismissal of those claims by the circuit court. In fact, this court plainly stated that it found it unnecessary to address M.K.J.’s appeal as it related to those claims because it had determined that the expulsion was arbitrary; The implication that the claims were alive is clear.
The COA then addressed the school board’s "law of the case" argument by stating that "To the extent the law of the case doctrine may otherwise be applicable, the exception to the rule should be applied
      here. . . .  Where the law of the case rule is applicable, it has sufficient flexibility to permit the appellate court to admit and correct an error made in the previous decision where substantial injustice might otherwise result and the former decision is clearly and palpably erroneous. )citations omitted here)."
Under these circumstances, the COA held the claims are viable and that the circuit court erred in not allowing M.K.J. to proceed in the prosecution of the claims. To the extent this Court’s prior opinion may have been deficient in that it failed to reverse the circuit court’s dismissal of the due process claims,
     the COA then applied the aforementioned exception to the law of the case doctrine such that wherein the circuit court held it had no jurisdiction to act on M.K.J.’s remaining claims after remand from this
     court is reversed, and this case is remanded for the purpose of allowing M.K.J. to pursue those claims.

Digested by Michael Stevens


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