Last week, OC Board of Education Trustee David Boyd suffered an embarrassing courtroom defeat in his ongoing campaign of intimidation against Mari Barke, an English as a Second Language (ESL) teacher challenging him for re-election. Boyd had her sued to prevent Barke from calling herself a teacher in her ballot title. In the space of a few minutes, Superior Court Judge Robert Moss tossed the lawsuit Boyd has been preparing for months.
Boyd’s failed lawsuit is a tale of inexplicable legal bungling and odd behavior. The fact that his lawsuit was helmed by the dean of the online law school Boyd’s operates serves to amplify the embarrassment factor.
Barke is Boyd’s first serious challenger since his election to the OCBE in 2010. He’s responded with a pattern of intimidation unheard of in a down-ballot race like Orange County Board of Education. During the past several weeks, Boyd has sent Barke an e-mail threatening to organize protesters to picket her husband’s medical clinic; accused a reporter of “extortion”; and threatened a smear campaign against Barke’s husband. Boyd’s cyber-bullying prompted a county official to denounce his behavior as “unethical” and “beyond despicable.”
Boyd instigated a lawsuit to strike the word “teacher” from Barke’s ballot designation of “ESL Teacher/Parent.” The actual plaintiff was Christine Baldwin, director of admissions for Taft Law School. The attorney of record was Robert Strouse, dean of Taft Law School.
It was all down hill from there.
The lawsuit was filed on March 19, triggering a series of steps with a specific timetable for completion. Since the lawsuit challenged a ballot title, OC Registrar of Voters Neal Kelley would have to be served in addition to Barke. A competent legal team would have served them both immediately. Instead, Strouse didn’t serve Kelley until 10 days later, on March 29.
When suing someone, due process requires the defendant be provide notice of that action – in person. Ordinarily, process servers are hired to do this. While Boyd used his law school staff as cut-outs in filing the lawsuit, he strangely decided to serve Marie Barke in person.
About 6:45 a.m. in the morning on April 5, one of Mari Barke’s neighbors left her house to meet another neighbor for their morning walk and spotted what she described as “a very creepy looking guy” parked in front of the Barkes’ home in expensive-looking BMW. She wanted to call the police, but reconsidered on the advice of her walking companion. When they returned from their walk 90 minutes later, Boyd had departed.
Boyd returned the next morning, April 6, at 6:00 a.m. and waited for Mari Barke. 45 minutes later, her husband Dr. Jeff Barke emerged to pick up morning newspaper. Barke glimpsed a tall man with “comb over dark hair” approaching from behind his neighbor’s bushes, stick out his hand holding an envelope and rasp, “I am serving your wife.”
According to Barke, he told Boyd “You’re doing nothing of the sort” and told him to get off his property. Boyd toss the envelope onto the Barke’s driveway and left.
The problem with this is that since Boyd didn’t personally serve the actual Defendant – Mari Barke – with the summons, it had to be mailed to her. Boyd and his attorney, Taft Law School Dean Robert Strouse, failed to complete that elementary task.
The chickens of legal incompetence came home to roost at the court hearing on April 13 – which was the day by which ROV Neal Kelley said he needed a decision in order to have ballots printed in time for the June primary election.
Barke’s attorney, Chad Morgan, argued the lawsuit should be dismissed because A) Barke was actually employed as an ESL teacher and Boyd’s arguments to the contrary were nonsense and B) Team Boyd has botched the simple task of serving Barke in a timely manner:
“..the Code of Civil Procedure requires that parties be given at least 10 days’ notice of an application for a peremptory writ of mandate in the first instance. To this end, in addition to Petitioner’s failure to satisfy service requirements, Petitioner failed to satisfy the notice requirement as well. Since nearly two weeks passed between Petitioner’s filing of this action and her first attempt at serving the Real Party in Interest, there is no excuse for these failures.”
“This is reinforced by the fact that Petitioner could have utilized the Elections Code section 12 remedy to resolve any difficulties in perfecting service but failed to do so,” Morgan’s motion continued. Taft Law School Dean Robert Strouse was unaware the state Election Code basically allowed him to serve Barke when he served notice to Neal Kelley.
Which is more disturbing? David Boyd’s odd desire on personally ambushing Mari Barke with a summons in the pre-dawn hours even as he used his law school employees to do the legal legwork? Or the sheer legal incompetence of the senior leadership of Boyd’s controversial online law school? Boyd’s team had been preparing to challenge Barke’s ballot title for several weeks. If Boyd and Strouse had managed to properly served Barke and Kelley right after filing their lawsuit on March 19 – and remembered to mail the summons, as well – Judge Moss wouldn’t have tossed their lawsuit on procedural grounds minutes after the court hearing began. They would still have lost on merits, but at least the world wouldn’t know the owner and dean of Taft Law School could not figure out how to properly prepare, file and serve a simple lawsuit.
The Taft Law School’s abysmal dropout rates and the State Bar Exam passage rate of those who do graduate makes more sense in light the shoddy legal work by its president and dean. Rather than using his law school’s resources to bully a woman running against him, perhaps Boyd should focus on providing his students with a better education. The school’s reputation has already been tarnished enough by self-inflicted a grade-changing scandal without being further diminished by the public display of legal ineptitude by its leadership.