MARK M. HATHAWAY, ESQ. (CA 151332; DC 437335; NY 2431682) JENNA E. EYRICH, ESQ (CA 303560) WERKSMAN JACKSON HATHAWAY QUINN LLP 888 West Sixth Street, Fourth Floor Los Angeles, California 90017 Telephone: (213) 688?0460 Facsimile: (213) 624-1942 E-Mail: mhathaway@werksmanjackson.com E-Mail: mallen@werksmanjackson.com' Attorneys for Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT MATTHEW BOERMEESTER, an individual, Case NO.: BSI70473 Petitioner, [Hon. James C. Chalfant] v. EX PAR TE APPLICATION FOR STAY OF ADMINISTRATIVE ACTION AINSLEY CARRY, an individual in his Of?cial PENDING COURT REVIEW OF capacity as Assistant Vice Provost for Student Affairs; THE UNIVERSITY OF SOUTHERN [Proposed] ORDER CALIFORNIA, a California corporation; and DOES 1 to 20 inclusive, Date: August 18, 2017 Time: 8:30 am. Respondents. Dept: 85 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS: PLEASE TAKE NOTICE that on August 18, 2017, at 8:30 am. in Department 85 of the above-titled Court, located at 11 N. Hill Street, Los Angeles, California, 90012, Petitioner will, and hereby does, apply ex parte for a stay of the operation Of Respondents? administrative action, including Petitioner expulsion from the University of Southern California (hereafter ?r?i Egour?? 7.. I: '1 3. '73 review ofhis writpetitionTHERE IS URGENCY BECAUSE CLASSES FOR USC FALL SEREEIEREZOIQY EEQIN ON, MONDAY, AUGUST 21,2017 A STAY IS NECESSARY TO PREVENT THE LOSS OF ENTIRE FALL 2017 SEMESTER AND POTENTIALLY THE ENTTRE 201731 2018 SCHOOL YEAR, WHEN HE IS JUST TWO SEMEST ERS SHY OF GRADUATINE 13 H: EX PARTE APPLICATION FOR STAY i 1:113 13 1?93 DD Cli- 1313 LE CITE WAS ALREADY SU BJECTED TO AN UNNECESSARY SEMESTER-LONG DURING TITLE IX INVESTIGATION. THE IN THE UNDERLYING TITLE IX CURRENT THAT ANY MISCONDUCT EVER OCCURRED. As shown in the veri?ed Petition ?led herein, Petitioner?s Administrative Record to be lodged for the hearing, the attached memorandum, the declaration of Matthew Boermeester, the declaration of Zoe Katz, and any exhibits ?led herewith, this court should stay the operation of the administrative decision under Code Civ. Proc. 1094.5 subd. because: (1) Petitioner presents a colorable claim for writ relief; (2) the requested stay is not contrary to public interest, (3) and the stay causes Respondents no prejudice while preventing irreparable harm to Petitioner?s academic success, reputation, professional athletic career, and standing in the academic community. Petitioner?s motion is based on the veri?ed Petition for Writ of Mandate; Petitioner's Administrative Record In Support Of Writ Petition, this ex parte application; the supporting memorandum of points and authorities; the attached declarations and exhibits; the pleadings, files, and records in this action; and any such argument as may be received by this Court at the hearing on the motion. WERKSMAN JACKSON H7WAY QUINN LLP Dated: August 17, 2017 Matt MTHatha?/air, Esq. Jenna E. Eyrich, Esq. Attorneys for Petitioner John Doe EX PARTE APPLICATION FOR STAY ii .TABLE OF CONTENTS TABLE OF AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES 1 I. INTRODUCTION 1 II. REGULATORY AND LEGAL BACKGROUND 2 A. TITLE IX. 2 B. California Law Requirements for Student Discipline 3 STANDARD OF REVIEW 4 A. ?Fair Hearing? Is Reviewed De Novo 4 B. Independent Judgment, a Trial De Novo, Required Where Administrative Process Affects a Vested Fundamental Right 5 IV. BRIEF FACTUAL AND PROCEDURAL BACKGROUND. 6 A. ?Interim? Suspension Lasting Over Five months. 6 B. The Title IX Investigation '7 C. The Evidence Hearing, Findings of act, and Guilt. 8 D. Anonymous Misconduct Sanctioning Panel. 8 E. Anonymous Appellate Panel 9 F. Final Decision by Respondent Ainsley Carry 9 V. ARGUMENT 9 A. Applicable Law 9 B. Petitioner Has At Least A Colorable Claim 10 1. USC ?3 Administrative Action is Unsupported by Evidence. 10 2. N0 Opportunity to Question Accuser, Even If Indirectly. I 0 3. No Imparlial Adjudicators. 10 4. USC ?3 Title IX Process-15 Permeated With Structural Error. I 1 EXPARTE APPLICATION FOR STAY Title 01? Investigators Failed to Properly Weigh the Evidence. 6. Respondents Have Denied Petitioner His Education In Violation Of Title IX. 12 C. Issuance of Stay Not Contrary to Public Interest 12 D. Petitioner?s Appellate Vindication Cannot Undo Irreparable Damage to His Academic Success and Reputation Without the Stay. 13 VI. APPLICATION FOR STAY PROPERLY BEFORE THE COURT. 15 VII. CONCLUSION 15 DECLARATION OF MARK M. HATHAWAY 16 DECLARATION OF MATTHEW BOERMEESTER 17 DECLARATION OF ZOE KATZ 28 PROPOSED ORDER 32 EX PARTE APPLICATION FOR STAY iv . ,fszjij TABLE OF AUTHORITIES Cases Andersen v. Regents of Univ. of Cal. (1972) 22 Ca1.App.3d 763 10 Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392 6 Bixby v. Pierno (1971) 4 Cal. 3d 130, 3 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 US. 837 2 Corp. v. Brown (1979) 441 US. 281 2 Clark v. City ofHermosa Beach (1996) 48 Cal.App.4th 1152 5 Doe v. Regents ofUniversity ofCalifornia (2016) 5 Ca1.App.5th 1055 4, 10, 12 Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655 5 Furey v. Temple Univ. (ED. Pa. 2012) 884 F.Supp.2d 223 13 Goss v. L0pez (1975) 419 US. 565 4, 13 Greenhill v. Bailey (8th Cir. 1975) 519 F.2d 5 5 Interstate Brands v. Unemployment Ins. Appeals Ed. (1980) 26 Cal.3d 770 5 JKH Enters, Inc. v. Dep ?t of Indus. Rels. (2006) 142 Ca1.App.4th 1046 5 John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301 5 Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627 3 Meyer v. Nebraska (1923) 262 US. 390 6 Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614 5 Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Ca1.App.4th 93 5 Rice v. Wood (9th Cir. 1996) 77 F.3d 1138 11 Shuffer v. Board of Trustees (1977) 67 Ca1.App.3d 208 5 United States v. Recio (9th Cir. 2004) 371 F.3d 1093 11 Statutes 20 U.S.C. 1681-1688 2 Code Civ. Proc. 1094.5 ii, 3, 4 EX PARTE APPLICATION FOR STAY . . If: 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On January 2, 2017, Petitioner Matthew Boermeester, now 23, was a senior, full-scholarship athlete at USC who kicked the game-winning ?eld goal in the ?nal second of the game to give the Trojans a 52-49 victory over Penn State in the Rose Bowl. Petitioner was on track to graduate in May 2017 and was planning to continue attending USC while receiving his master?s degree and playing USC football as a graduate student during the Fall 2017 semester. On January 26, 2017, USC ordered Mr. Boermeester escorted off campus by security and banned him from his classes and football, without notice or a hearing, due to alleged ?intimate partner violence? with his girlfriend Zoe Katz, which Ms. Katz and Mr. Boermeester deny ever occurred. Mr. Boermeester was barred from participating in the Rose Bowl ceremony for the game he won for USC. Ms. Katz never made any report to rather another student looking out a window thought he saw a physical altercation, told another student about what he thought he saw, and that student told his father, who then made a mandatory report to the USC Title IX Office. Although USC refers to Ms. Katz as the ?Reporting Party,? Ms. Katz reported repeatedly to USC that she did not experience any prohibited conduct or ?intimate partner violence.? (Decl. Zoe Katz 1] 4.) The sole complainant against Matthew Boermeester is the University itself, through Title IX Coordinator Gretchen Dahlinger Means, and Title IX investigator Lauren Elan Helsper, who investigated and prosecuted Mr. Boermeester for over ?ve months without substantial evidence that misconduct ever occurred and contrary to the direct testimony of the supposed victim. On July 7, 2017, following unsuccessful campus appeals by both Ms. Katz and Mr. Boermeester, Respondent Ainsley Carry ordered Mr. Boermeester expelled. On August 1 l, 2017, Matthew Boermeester filed his Petition for Writ of Mandate under Code Civ. Proc. 1094.5, or in the alternative under Code Civ. Proc. 1085, directed to Respondents in order to redress his improper expulsion. Title IX sexual misconduct adjudication process is utterly lacking in fairness and due process, with no presumption of innocence, no rules of evidence, no right to confront witnesses against him directly or indirectly, no record of the proceedings, and no impartiality. Petitioner seeks a stay of administrative action in order to avoid suffering the irreparable EXPARTE APPLICATION FOR STAY I adverse consequences of ReSpondents? improper administrative action, even if he ultimately succeeds on his writ petition. II. REGULATORY AND LEGAL BACKGROUND1 A. TITLE IX. The issue of student-on-student sexual misconduct on university campuses is primarily addressed at the federal level by Title IX.2 A university violates Title IX regarding student-on?student sexual violence if: (1) the alleged conduct is suf?ciently serious to limit or deny a student's ability to participate in or bene?t from the school's educational programs;3 and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects."4 The Dept. of Education?s Of?ce of Civil Rights has expanded on Title IX enforcement through regulations promulgated through notice-and-comment rulemaking6 that ?have the force and effect of law?;? and ?significant guidance documents? such as the April 2011 ?Dear Colleague Letter,?8 and the April 2014 A more complete statement of the regulatory and procedural background is set forth in the Amended Petition for Writ of Mandamus (?Amended Petition?) at pp. 4?16. 2 Title IX ofthe Education Amendments of 1972, 20 U.S.C. 1681-1688. 3 OCR requires that the conduct be evaluated from the perspective of a reasonable person in the alleged victim?s position, considering all the circumstances. OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties Title IX (2001) at p.18 (?2001 Guidance?) notice ofpublication at 66 Fed. Reg. 5512 (January 19, 2001) 4 OCR, ?Questions and Answers on Title IX and Sexual Violence? (April 2014), Available at (?2014 Questions and Answers?) 5 In June 2013, OCR launched an investigation into the handling of at least two alleged rape cases at the USC, which received some $500 Million in federal funds each year. investigation came on the heels of protests by USC students, including the Student Coalition Against Rape (SCAR), and litigation brought by attorney Gloria Allred that USC was ignoring or mishandling sexual assault and rape complaints. USC. See, Los Angeles Times, USC, Berkeley mishandling sex crimes against women, Allred says, May 23, 2013, Dalina Castellanos. 6 2001 Guidance at p. 36 n.98 7 Corp. v. Brown (1979) 441 US. 281, 295, 301-02 (regulations promulgated pursuant to notice?and-cornment rulemaking that affect individual rights and obligations ?have the force and effect cf law?). The 2001 Guidance is entitled to deference under the doctrine articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 US. 837, 842-43. 8 Available at 104.pdf. (?Dear EX PART APPLICATION FOR STAY 2 arecollege?s procedures must, at a ?Questions and Answers on Title IX and Sexual Violence. minimum, (1) ?ensure the Title IX rights of the complainant,? but ?accord due process to both parties involved,?10 a requirement applicable to both state and private schools;11 (2) provide an ?adequate, reliable, and impartial (3) provide the complainant and the accused student ?an equal opportunity to present relevant witnesses and other evidence?;13 (4) ensure that the ?factfinder and decision maker . . . have adequate training or knowledge regarding sexual violence?;14 and (5) require ?documentation of all proceedings, which may include written ?ndings of fact, transcripts, or audio recordings.? B. California Law Requirements for Student Discipline. California?s procedural and substantive standards for student disciplinary proceedings begin with Code Civ. Proc. 1094.5 subdivisions and which require that (1) there be ?a fair trial,? which ?means that there must have been ?a fair administrative hearing?"5; (2) the proceeding be conducted ?in the manner required by law?; (3) the decision be ?supported by the findings?; and (4) the ?ndings be ?supported by the weight of the evidence,? or where an administrative action does not affect vested fundamental rights, the ?ndings must be ?supported by substantial evidence in the light of the whole record.?16 In addition, a reviewing court does not ?blindly seize any evidence in support of the respondent in order to af?rm the judgment. . . . It must be reasonable, . . . credible, and of solid value.? (Kuhn v. Department ofGeneral Services (1994) 22 Cal.App.4th 1627, 1633.) Colleague Letter?) See Bleiler v. College ofthe Holy Cross, 2013 WL 4717340, at 5 (D. Mass. 2013) (holding that the Dear Colleague Letter, as a guidance document, ?does not have independent force of law but informs this Court?s evaluation of whether the College?s procedures were ?equitable??). 9 2014 Questions and Answers. 10 2001 Guidance at p. 22. ?1 OCR Ruling re Complaint #04-03?204 (Christian Brothers Univ.) (Mar. 26, 2004) at 7 (?due process protections [are] inherent in the Title IX regulatory requirements?). ?2 2001 Guidance at p. 20. ?3 Id; Dear Colleague Letter, at p. 11. l4kl; 2001 Guidance at p. 21. 15 Doe v. University ofSouthern California (2016) 246 Cal.App.4th 221, 239 (citations omitted) (hereafter Doe USC). 16 California has undertaken to protect vested fundamental rights ?from untoward intrusions by the massive apparatus of government.? (Bixby v. Pierno (1971) 4 Cal.3d 130, 142-143 [hereafter Bixby].) EXPARTE APPLICATION FOR STAY 3 Students facing suspension or expulsion have interests qualifying for protection of the Due Process Clause. (Goss v. Lapez (1975) 419 US. 565, 577 [for suspensions ofless than ten days from high school, students are not entitled ?to confront and cross?examine The requirements for procedural due process vary depending upon the situation under consideration and the interests involved?? The severity of the deprivation is one of several factors that must be weighed in deciding the exact due process owed the student. (Board of Curators of University of Missouri v. Horowitz (1978) 435 US. 78, 86.) In this case, the deprivation in the form of expulsion could not be more severe, resulting in the loss of an ?an interest of almost incalculable value, especially to those students who have already enrolled in the institution and begun the pursuit of their college training.? (Goldberg v. Regents ofUniversity of'Cal. (1967) 248 Cal.App.2d 867, 876 [hereafter Goldberg].) In California, schools must provide for the questioning of the complainant by the accused student, if even indirectly. (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1084 [hereafter Doe In addition, students are to have ?ample opportunity to hear and observe the witnesses against them.? (Doe USC, supra, 246 Cal.App.4th at 246.) A fair process also requires the university to present the evidence to the accused student so that the student has a reasonable opportunity to prepare a defense: . . . requiring John to request access to the evidence against him does not comply with the requirements of a fair hearing. [citing Goss v. Lapez (1975) 419 US. 565, 582]? (Doe USC, supra, 246 Cal.App.4th at 245-246.) ?The right to a fair procedure includes the right to impartial adjudicators. (Applebaum v. Board of Directors, supra, 104 Cal.App.3d 648, 658.) Moreover, ?[f]airness requires a practical method of testing impartiality." (Hacketlzal v. California Medical Assn, supra, 138 Cal .App.3d 435, 444.)? (Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1448 [hereafter Rosenblit].) STANDARD OF REVIEW A. ?Fair Hearing? Is Reviewed De Novo. Code Civ. Proc. 1094.5 authorizes a trial court to issue a writ of administrative mandate where an agency has deprived a petitioner of a fair hearing. (Code Civ. Proc., 1094.5, subd. Clark v. City 17 Id. at 244. EXPARTE APPLICATION FOR STAY 4 27 ofHermosa Beach (1996) 48 Cal.App.4th 152; Doe USC, supra, 246 Cal.App.4th at 239.) In determining whether an agency provided a petitioner with a fair hearing, a reviewing court independently evaluates whether ?the administrative proceedings were conducted in a manner consistent with the minimal requisites of fair procedure demanded by established common law principles.? (Rosenblit, supra, 231 Cal.App.3d at 1442, notng John A. v. San Bernardino City Uni?ed School Dist. (1982) 33 Cal.3d 301, Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, and Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, superseded on other grounds by statute as stated in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655.) That is, the petitioner is entitled to an independent judicial determination of the fair hearing issue. (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 101.) B. Independent Judgment, a Trial De Novo, Required Where Administrative Process Affects a Vested Fundamental Right. If an administrative action substantially affects a vested fundamental right, ?the trial court not only examines the administrative record for errors of law but also exercises its independentjudgment based upon the evidence disclosed in a limited trial de novo.? (Bixby, supra, 4 Cal.3d at 143.) The Court must exercise its independent judgment and may reweigh the evidence; in effect, a trial de novo. (Code Civ. Proc., 53' 1094.5, subd. Shaffer v. Board ofTrustees (1977) 67 Cal.App.3d 208, 219, citing Greenhill v. Bailey (8th Cir. 1975) 519 F.2d 5, 7.) A court must determine on a case-by-case basis whether an administrative decision affects a vested fundamental right. (1d. at 144.) Specifically, in its analysis, a court is to consider the ?nature of the right of the individual: whether it is a fundamental and basic one, which will suffer substantial interference by the action of the administrative agency, and, if it is such a fundamental right, whether it is possessed by, and vested in, the individual or merely sought by him.? (Id) right is deemed fundamental on either or both of two bases: (1) the character and quality of its economic aspect; or (2) the character and quality of its human aspect.? (JKH Enters, Inc. v. Dep?t of Indus. Rels. (2006) 142 Cal.App.4th 1046, at 1059.18 18 See also Interstate Brands v. Unemployment Ins. Appeals Ed. (1980) 26 Cal.3d 770, 775 [the right to be free from an erroneous charge against an unemployment insurance reserve account is a vested EXPARTE APPLICATION FOR STAY 5 Here, Petitioner paid tuition, attended his classes, remained in good standing, and did not participate in misconduct, and therefore possessed a vested contractual right to continue to attend USC. Furthermore, Petitioner has a vested fundamental right under Title IX that Petitioner, as well as any similarly situated student, may not be deprived of access to his education through an administrative process that does not afford due process, is not fair, impartial, reliable, and equitable, or is overly punitive and not remedial.?9 Such an improper process can seriously damage the students? reputation, as well as interfere with later educational and employment opportunities. administrative process affects Petitioner?s right to complete his university degree and the Fall 2017 term, California courts have described the value of higher education as ?an interest of almost incalculable value, especially to those students who have already enrolled in the institution and begun the pursuit of their college training.? (Goldberg, supra, 248 Cal.App.2d at 876.) IV. BRIEF FACTUAL AND PROCEDURAL BACKGROUND. A. ?Interim? Suspension Lasting Over Five months. As ofJanuary 21, 2017, Zoe Katz, 22, was captain of the USC women?s tennis team, was a nationally ranked singles player, and had been dating Matthew Boermeester for well over a year. (Decl. of Zoe Katz 1111 2-3.) Mr. Boermeester, then 22, a kicker on football team, was limping with a knee brace due to recent knee surgery. Around midnight, Ms. Katz and Mr. Boermeester returned to Ms. Katz?s residence after getting french fries at McDonalds. The two were brie?y engaged in loud, fundamental right for purposes of mandamus review]; Berlinghieri v. Department of Motor Vehicles (1983) 33 Ca1.3d 392, 396-397 [the right to retain a driver's license is a vested fundamental right because it has "an impact on the individual suf?ciently vital . . . to compel a full and independent review by the court."] [internal citations omitted].) Strikingly, a case cited by the California Supreme Court in foby is the United States Supreme Court?s decision in Meyer v. Nebraska (1923) 262 US. 390, 399. Bixby observes that in Meyer, ?[T]he United States Supreme Court listed the right of the individual ?to engage in any of the common occupations of life? as one of several fundamental liberties, which also include the right of the individual ?to acquire useful (Bixby, supra, 4 Cal.3d at 145.) Meyer thus lends further support to the position that Petitioner?s right to pursue the career of his choice, free of the severe restrictions that a suspension places on his ability to transfer to another college or to gain admission to grad school or essential professional training, should qualify as a ?fundamental vested right? for purposes of review under Code Civ. Proc. 1094.5. ?9 See, Questions and Answers on Title' IX and Sexual Violence, OCR, April 29, 2014, p. 29 EXPARTE APPLICATION FOR STAY 6 1'consensual horseplay and laughing in the alley before going into Ms. Katz? residence. As they entered her building, Dylan Holt,20 another USC student who had apparently seen part of their interaction from a window, approached Ms. Katz and Mr. Boermeester and to see if Ms. Katz was alright. Ms. Katz said she was ?ne. Dylan Holt told his roommate Tanner Smith what Dylan thought he had seen going on in the alley from his window. Tanner Smith also approached Ms. Katz that night and noticed that Ms. Katz did not seem upset by her interaction with Petitioner in the alley. Tanner Smith later spoke to his father Peter Smith, USC Men?s Tennis Coach, about what Dylan had told him. As a Responsible Employee,21 tennis coach Peter Smith was required to report to the USC Title IX Of?ce what he had been told by his son, Tanner Smith, who had relayed to his father what Tanner had heard from Dylan Holt. A week later, Lynette S. Merriman, Assistant Vice Provost for Student Affairs, noti?ed Matthew Boermeester that he was ?on interim suspension pending administrative review of a Title IX investigation.? Mr. Boermeester was escorted off campus on January 26, 2016, was excluded from all classes, not permitted any involvement with football team functions, and banned from all University Sponsored activities.22 Because he was banned from all USC facilities, Petitioner was unable to receive medical treatment or rehabilitative care for the surgery that had been performed on his knee by USC doctors on January 10, 2017. Throughout Title IX investigation, Zoe Katz and Matthew Boermeester each asserted that no Violence or prohibited conduct ever occurred. B. The Title IX Investigation. From approximately January 22, 2017, through March 22, 2017, Title IX Investigator Lauren Elan HelSper conducted her investigation, supervised by Title IX Coordinator, Gretchen 20 Dylan Holt later told the Title IX Of?ce that he did not want to participate in the investigation and that he had not seen the entire interaction between Ms. Katz and Mr. Boermeester in the alley. 21 Policy requires Responsible Employees to? immediately report all known information about suSpected prohibited conduct to the Title IX Of?ce. . . . This duty applies no matter how the information is learned; whether from direct report from an affected party, from social media, or from a concerned third party. Failure by a Responsible Employee to make a timely report of prohibited conduct may be subject to discipline, up to and including removal from their position.? (PT0230.) 22 .Assistant Vice Provost Merriman also told Mr. Boenneester, ?You may have no contact with Z.K. [Zoe Katz], directly or indirectly by any. means.? Petitioner and Ms. Katz maintained the no- contact at USC, and 1n LOS Angeles, but they continued to date and saw each other privately 1n San Diego County and foreign countries where Ms. Katz ?ew to visit Mr Boermeester. EX PART APPLICATION FOR STAY 7 Dahlinger Means. During the investigation, HelSper and Means interviewed Matthew Boerrneester, Zoe Katz, Dylan Holt, Max Brenner, as well as fourteen other witnesses who had no ?rst?hand knowledge of any of the events of January 21, 2017. Title IX investigator HeISper also collected screenshots of text messages, emails, an audio recording, and security video footage from the alley on January 21, 2017. Zoe Katz? insistence that no prohibited conduct occurred in the alley on January 21, 2017 is con?rmed by the security video footage, which USC refuses to turn over but did eventually allow Ms. Katz, Mr. Boermeester, and their advisers to view in the Title IX Of?ce. C. The Evidence Hearing, Findings of Fact, and Guilt. USC Title IX does not conduct an evidentiary hearing before a neutral panel or adjudicator. Rather USC provides for an ?Evidence Hearing? where the Title IX Investigator and the Title IX Coordinator decide the facts and guilt. Zoe Katz submitted a written statement denying that any misconduct occurred on January 21, 2017, or at anytime. Matthew Boermeester also denied committing any misconduct. Given that no one actually saw the interaction in the alley (other than Zoe Katz and Matthew Boermeester), and the video does not depict prohibited conduct, and there is no physical or direct evidence of any prohibited conduct, Matthew Boermeester expected to be cleared. Gretchen Dahlinger?Means and Lauren Elan Helsper, however, decided that Petitioner had violated the Policy sections VI.E., Intimate partner violence, and VI.G., Violation of an interim measure (in that Ms. Katz and Mr. Boermeester had continued their relationship.) D. Anonymous Misconduct Sanctioning Panel. After finding Mr. Boermeester responsible for prohibited conduct, the Title IX Of?ce forwarded its report to the Misconduct Sanctioning Panel, which is composed of three unidenti?ed individuals, two of whom are staff or faculty designated by Michael Quick,23, the Provost and Senior Vice President for 23 According to website, Dr. Michael Quick has held this'position since April 1, 2015, and was also responsible for overseeing the Keck School of Medicine and some 17 other professional schools. In response to the recently reported misconduct by USC medical school dean Dr. Carmen A. Pulia?to, Dr. Quick explained delay in taking action in his letter to faculty, know many people wanted us to act on allegations and hearsay, but we needed actual facts.? See, Paul Pringle, Adam .Elmahrek, Matt Hamilton and Sarah Parvini, received more than a year of questions about former medical school dean ?s conduct before scandal broke? (July 23, 2017) Los Angeles Times. EX PART APPLICATION FOR STAY 8 Academic Affairs. On May 2, 2017, the Panel decided that Petitioner should be expelled. E. Anonymous Appellate Panel. After USC issued the sanctions, both Ms. Katz and Mr. Boenneester submitted appeals, objecting to the ?ndings and sanctions. Under Policy, Appellate Panel decisions ?are to defer to the Title IX Of?ce and the Misconduct Sanctioning Panel? and the Panel only makes recommendations that Respondent Ainsley Carry may modify or accept at his sole discretion. (PT0253.) In this case, the Appellate Panel denied both appeals, but recommended a 2-year suspension instead of expulsion. F. Final Decision by Respondent Ainsley Carry. On July 7, 2017, Ainsley Carry approved the decision of guilt reached by the Title IX Of?ce, however, he rejected the Appellate Panel?s recommended two-year suspension and ordered Petitioner expelled. Petitioner has exhausted all avenues of administrative appeal of decision and on August 1 1, 2017, Petitioner filed his Petition for Writ of Mandate. V. ARGUMENT A. Applicable Law Pursuant to Code Civ. Proe. 1094.5 subd. the Court may stay the operation of the administrative order or decision pending judgment, or until the ?ling of a notice of appeal from the judgment or until the expiration of the time for ?ling the notice, whichever occurs ?rst. No stay shall be imposed or continued if the court is satis?ed that it is against the public interest. (See Board of Medical QualityAssurance v. Superior Court (1980) 1 14 Cal.App.3d 272, 276.) In addition to Code Civ. Proc. 1094.5 subd. express language, the common law requires a showing of irreparable harm and a reasonable prospect of success on the merits, sometimes referred to as a ?colorable claim.? Petitioner does not need to show that he is likely to prevail on the merits at trial, only that he has ?a colorable claim for writ relief? i.e. there is some possibility that he will ultimately prevail. (Association of Orange County Deputy SherQ??S' v. County of Orange (2013) 217 CaI.App.4th 29, 49.) Petitioner has at least a colorable claim for writ relief. EX PART APPLICATION FOR STAY 9 B. Petitioner Has At Least A Colorable Claim. 1. US ?s Administrative Action is Unsupported by Evidence. Zoe Katz never made any report to rather another student looking out a window thought he saw a physical altercation, told another student about what he thought he saw, and that student told his father, who then made a mandatory report to the USC Title IX Of?ce. Although USC refers to Ms. Katz as the ?Reporting Party,? Ms. Katz reported repeatedly to USC that she did not experience any prohibited conduct or ?intimate partner violence.? (Decl. Zoe Katz ?ll 4.) Ms. Katz states in her declaration: 7. Most alarming, I saw that statements of witnesses, including my own statements to Gretchen Dahlinger Means and Laruen Elan Helsper, were misrepresented, misquoted and taken out of context in order to support Ms. Means? and Ms. Helsper?s own personal opinions about what they think happened. The sole complainant against Matthew Boermeester is the University itself, through Title IX Coordinator Gretchen Dahlinger Means, and Title IX investigator Lauren Elan Helsper, who investigated and prosecuted Mr. Boermeester for over ?ve months without substantial evidence that misconduct ever occurred and contrary to the direct testimony of the supposed victim. 2. No Opportun it}; to Question Accuser, Even If Indirectly. Where matters turn on credibility, USC must provide for the questioning of the complainant, even if indirectly, by the accused student. (Doe UCSD, supra, 5 Cal.App.5th at 1084.) Here Zoe Katz is not the complainant, rather USC Title IX personnel Gretchen Dahlinger Means or Lauren Elan Helsper, are the actual complainants in this case. By not providing Petitioner any opportunity to question those accusing him, USC improperly deprived Petitioner of ?a full opportunity to present his defense.? (Andersen v. Regents ofUniv. ofCal. (1972) 22 Cal.App.3d 763, 771.) 3. N0 Impartial Adjudicators. ?The right to a fair procedure includes the right to impartial adjudicators. (Applebaum v. Board of Directors, Supra, 104 Cal.App.3d 648, 658.) Moreover, [?airness requires a practical method of testing impartiality.? (Hackethal v. California Medical Assn, supra, 138 Ca1.App.3d 435, 444.)? (Rosenblit v. Superior Court, supra, 231 Cal.App.3d at 1448.) Here, there is no showing that the Title IX Coordinator and Investigator are impartial, quite the contrary. See, Zoe Katz Decl. 2-8. EX PARTE APPLICATION FOR STAY 10 Go 7-13itle IX Process Is Fermented Wit]: Structural Error. By failing afford accused students due process and failing to comply with OCR guidance and Title IX, Respondents? Title IX sexual misconduct policing process is permeated with structural error. ?Structural error? has been de?ned as ?an error that ?permeate[s] the entire conduct of the trial from beginning to end, or affect[s] the framework within which the trial proceeds.? (United States v. Recio (9th Cir. 2004) 371 F.3d 1093, 1 101, citing Rice v. Wood (9th Cir. 1996) 77 F.3d 1138, 1141.) Here USC Title IX Of?ce does not record witness interviews, a standard investigation practice. USC Title IX Of?ce misrepresents, misquotes, and takes witness statements out of context in order to support their personal opinions. USC Title IX Of?ce withholds evidence and fails to provide the accused student with a copy of the evidence. Even where matters turn on credibility, USC Title IX Of?ce forbids the questioning of the complainant, even if indirectly. USC Title IX Of?ce improperly shifts the burden of proof to the accused student to prove themselves innocent of the allegations. USC relies on hearsay evidence that is contradicted by ?rst person testimony. USC Title IX Office relies upon character evidence that is inadmissible. USC Title IX Of?ce relies upon evidence that is not temporally proximate to the conduct at issue, contrary to USC Policy. USC Title IX does not conduct an evidentiary hearing before a neutral or impartial panel or adjudicator. USC Title IX Of?ce does not allow for any substantive appeal at the University. Title IX proceedings are so obviously permeated with structural error, the ?ndings must be set aside and the expulsion overturned. 5. US ?s file IX Investigators Failed to Properly Weigh the Evidence. Under Policy, the Title IX investigator is to consider only information that is relevant, material, and temporally proximate to the conduct at issue. (PT0238.) Character evidence is not admissible and will not be considered. (PT0238.) However, the Policy also provides that Title IX investigator HeISper will decide what evidence she wants to consider in forming her personal opinions about ?ndings of fact. (PT0247.) After Title IX investigator Helsper decides the facts, based on her own investigation and what evidence she wishes to consider, Ms. Helsper and Title IX Coordinator Gretchen Dahlinger Means decide whether the Respondent violated the Policy based on Ms. Helsper?s opinion regarding the facts. (PT0247.) Here, investigators Helsper and Means interviewed more than a dozen witnesses who had no ?rst?hand knowledge of any of the events of January 21, 2017, and Whose testimony could have only EXPARTE APPLICATION FOR STAY 1 iiincluded irrelevant character evidence. Conversely, the investigators discredited statements made by Zoe Katz, the person with the most relevant, material, and temporally proximate testimony, by accusing her of being a ?battered? woman whose denials of abuse could not be believed. The investigators present their own assumptions, innuendo, and inferences from cherry-picked information as fact in order to support their predetermined outcome that Mr. Boermeester was responsible for prohibited conduct. 6. Respondents Have Denied Petitioner His Education In Violation 0f Tide IX. USC was obligated to determine whether the alleged misconduct is suf?ciently serious to limit or deny a student?s ability to participate in or bene?t from the school?s educational programs.? Here, USC made no such determination, nor would Title IX of?cers have been able to make such a determination when the ?complaining party? and the accused student are in an ongoing dating relationship and deny what USC Title IX Of?ce alleges happened. USC Title IX Of?ce is responsible for creating the only hostile environment that has interrupted Zoe Katz?s education and ended Matthew Boermeester?s education. There is no showing that any student has been denied the ability to participate in educational programs, other than Petitioner by Title IX Of?ce. C. Issuance of Stay Not Contrary to Public Interest. The public interest in ensuring due process in Title IX administrative proceeding and Petitioner?s right to his education is at least as signi?cant as any public interest in stemming interpersonal domestic violence on college campuses. A unique situation is presented here where Ms. Katz, the supposed ?victim,? repeatedly denied claims that Mr. Boermeester was responsible for interpersonal domestic violence and does not assert that she will suffer any harm by his return to USC. (Decl. Zoe Katz 111] On the contrary, she advocates for this stay of sanctions and castigates USC for their mismanaged and misguided action against Mr. Boermeester. (Decl. Zoe Katz 7-10.) There is no public interest in the expulsion of a student who has not received a fair hearing and contrary to the evidence. Stays are routinely granted in student disciplinary appeals, including Title IX sexual misconduct cases. (See Doe v. Regents of University of California, supra, 5 Cal.App.5th 1055; John Doe v. Donald Dudiey, et 01., YCSC Case No. PT 15-1253 [stay order granted September 22, 2015 in Yolo Superior 1? OCR Questions and Answers, Page 1. EXPARTE APPLICATION FOR STAY l2 Court]; Doe v. Donald Dudley, UC Regent ?5 er al. YCSC Case No. [[stay order granted September 22, 2015 in Yolo Superior Court May 30, 2017].) The frequency with which stays are granted in university disciplinary cases undermines any argument that a stay in this case is against the public interest. Individuals facing suspensions and expulsions have interests qualifying for protection of the Due Process Clause and fairness. (G033 v. Lopez (1975) 419 US. 565, 577.) In this case, Respondents? disciplinary process falls far short of what is required by fundamental fairness and due process, and Dr. Carry?s imposition of an expulsion is arbitrary and capricious. The public has a greater interest in ensuring that educational institutions protect the due process rights of all the individuals who work and study there over and above the universities? interest in making administrative disciplinary determinations. The Court?s issuance of a single stay does not deprive USC of its ability to effectively govern its student body. The public interest does not weigh against the issuance of a stay. D. Petitioner?s Appellate Vindication Cannot Undo Irreparable Damage to His Academic Success and Reputation Without the Stay. It is an accepted fact that ?Expulsion denies the student the bene?ts of education at his chosen school. Expulsion also damages the student?s academic and professional reputation, even more so when the charges against him are serious enough to constitute criminal behavior. Expulsion is likely to affect the student?s ability to enroll at other institutions of higher education and to pursue a career.? (Furey 12. Temple Univ. (ED. Pa. 2012) 884 F.Supp.2d 223, 245?48.) Petitioner has already experienced irreparable harm as a result of and discriminatory proceedings. Without an investigation, and without any evidence to substantiate the Title IX Of?ce?s claims, Dr. Carry upheld Petitioner?s interim suspension, separating him from his academic programs for the Spring 2017 semester. If Petitioner had been permitted to take classes at USC or another university during the Spring 2017 semester, he would have completed his undergraduate degree and been able to transfer as a graduate student to another university anywhere in the country. As a graduate transfer student, Petitioner would have had the opportunity to play football for one more season at a Division?1 university. Now, with only two classes left to complete his undergraduate degree and his opportunity to play football at USC revoked, Petitioner has lost the opportunity to play college football, altogether. EXPARTE APPLICATION FOR STAY 13 Without a stay, Petitioner will continue to suffer irreparable harm academically by being permanently separated from his academic programs, professors, mentors, and contacts at USC. Petitioner is only two classes shy of graduating, meaning he has earned nearly all of his 128 baccalaureate units required for graduation at the undergraduate level. Transferring to another university at this point in Petitioner?s academic career would be redundant, time?consuming, and expensive considering that most universities have strict requirements regarding the minimum number of units that must be completed at that university for graduation eligibility. In the unlikely event Petitioner will be able to transfer to another college or university with an expulsion mark on his transcript for interpersonal domestic violence, he will be required to meet the transfer requirements at his new university, which may entail forfeiting credits completed at USC and paying for and completing additional undergraduate units at his transfer university in order to earn his undergraduate degree. Athletically, the interim suspension in place during Title IX process and the subsequent expulsion have deprived Petitioner an opportunity to play college football as a graduate student at team that is in the conversation for a National Championship?or for any other Division 1 college football team in the nation. This makes it impossible for Petitioner to develop his ranking as a draft-eligible college football player for the NFL in the 2017 draft class, which will severely hinder his ?iture professional football career. Petitioner was also denied necessary medical and rehabilitative services by USC following his knee surgery performed by USC doctors in January 2017, which affected his recovery. Petitioner?s reputation will also suffer, as USC announced publicly that Mr. Boermeester would not return to USC due to a student code of conduct issue. Petitioner is now known as the Rose Bowl kicker who got expelled for student conduct code violations. Those who learn that Petitioner was expelled due to interpersonal domestic misconduct will certainly believe that such a serious punishment was substantiated by the weight of credible evidence, and their good opinion of Petitioner, once lost, will be lost for good. Petitioner should not have to bear the full burden of the damage to his academic and professional future and reputation due to Respondents? imprOper actions, if it turns out later, after a review on the merits, that Respondents were wrong. Without a stay, Petitioner will have already suffered all the EXPARTE APPLICATION FOR STAY 14 consequences of the unnecessary interruption of his education and irreparable damage to his reputation caused by his public removal from USC, even if he ultimately prevails. VI. APPLICATION FOR STAY PROPERLY BEFORE THE COURT. Ex parte applications are governed generally by California Rule of Court 3.1200 et seq. and must be in writing and include the following: (1) an application containing the case caption and stating the relief requested; (2) a declaration in support of the application; (3) a declaration, competent and based on personal knowledge, regarding the notice provided to other parties pursuant to California Rule of Court 3.1204; (4) a memorandum; and (5) a proposed order. Petitioner has ?led the required ex parte application documents. Under California Rule of Court 3.1202, the ex parte application must state the name, address, and telephone number of any attorney known by the applicant to be an attorney for any party. The names, addresses and telephone numbers are as follows: Karen Pazzani Young Zinn Bate LLP 1150 South Olive Street, 18th Los Angeles, CA 90015 Telephone: (213) 362-1860 Facsimile: (213) 362-1861 E-mail: kpazzani@yzblaw.corn Petitioner has complied with the ex parte rule and all parties were properly noti?ed, as shown in the Declaration of Mark M. Hathaway 2. Respondent?s counsel indicated she will appear on August 18, 2017 to oppose Petitioner?s ex parte application for stay. VII. CONCLUSION Based on the foregoing, Petitioner respectfully requests that this Court stay the operation of Respondents? administrative action pending court review of his petition. WERKSMAN JACKSON HAT . . LLP DATED: August 17, 2017 By: .. Nf'dl?r I 1 - Jenna E. Eyrich, Esq. Attorneys for Petitioner John Doe EXPARTE APPLICATION FOR STAY 15 ?55 ?3st "5.533%: DECLARATION 5 .755reo . . DECLARATION OF MARK M. HATHAWAY I, the undersigned, declare: I am an attorney admitted to practice in all courts in the State of California, the State of New York, and the District of Columbia and am a Certi?ed Specialist in Taxation Law by the California State Bar Board of Legal Specialization. I am responsible for representation of Petitioner Matthew Boermeester in this matter. I have personal and ?rst-hand knowledge of the facts set forth in this Declaration, unless otherwise stated, and, if called as a Witness, I could and would testify competently to those facts. 1. After filing Petitioner?s Petition for Writ of Mandamus on August 1 1, 2017, I attempted to reserve a hearing date for Petitioner?s motion for stay from Department 85. The earliest date to reserve a hearing for Petitioner?s motion was November 7, 2017. I reserved that date for hearing on Petitioner?s Motion for Stay but am seeking a stay ex parte because Petitioner will be irreparably harmed if a stay is not granted before the start of Fall semester 2017 on August 21, 2017. 2. On Thursday, August 17, 2017 at 8:23 am, I emailed Respondents? counsel, Karen Pazzani, Esq. from the law firm Young Zinn Bate LLP, to inform her that Petitioner intends to appear ex parte on Friday, August 18, 2017 in Department 85 of the Los Angeles Superior Court, 11 1 N. Hill Street, to stay the sanction imposed by USC before the start of Fall 2017 semester, which commences on August 21, 2017. I had previously discussed delaying the ex parte because Ms. Pazzani had a con?ict on Thursday, August 17, 2017. 3. Ms. Pazzani indicated that she would appear to oppose the ex parte application and would arrange for a court reporter to be present. 4. Attached hereto as 1 is a true and correct copy of Registration Calendar for the Fall 2017 semester. I declare under the penalty of perjury in the State of California and of the United States of Los Angeles County America that the foregoing IS true and correct. Sign I Date: August 17, 2017 EXPARTE APPLICATION FOR STAY 16 DECLARATION 3.3.x . ear.- DECLARATION OF MATTHEW BOERMEESTER I, the undersigned, declare: My name is Matthew Boermeester and I am the Petitioner in this writ of administrative mandate matter. I have read the Motion for Stay and the Writ Petition herein and am familiar with their contents. I have personal and ?rst?hand knowledge of the facts set forth in this Declaration, unless otherwise stated, and, if called as a witness, 1 could and would testify competently to those facts. 5. I am making this declaration in support of my request for a stay of the operation of administrative decision against me so that I can return to school as soon as possible and start the process of restoring my reputation and my future without more delay. 6. Last semester, I was a senior full-scholarship athlete at USC on track to graduate in May 2017. I was planning to continue attending USC while receiving my master?s degree and playing football for USC during the Fall 2017 semester. While at USC, I have twice received the David Marks Scholar- Athlete Award, which is awarded to full-scholarship athletes who maintain a 3.0 GPA or above. 7. Without the stay, my education, professional, and athletic career will be on hold and I will lose time and opportunities that I could never be compensated for. I must return to school to complete needed units for my degree and see if I can salvage my college and professional football career and NCAA eligibility. 8. In my veri?ed Writ Petition, I set out a summary of the facts and the Title IX process and I do not want to just repeat them here, but a very important fact is that Zoe Katz has truth?illy told USC Title IX again and again that she is not a victim of anything, and that I have never been violent with her, not on January 21, 2017, not ever. I am attaching a copy of the factual summary from my veri?ed Petition, pages 20 through 27, and incorporate those facts by this reference. 9. From the outset I was presumed guilty by Title IX Of?ce and nothing I or Zoe Katz said or did or provided them could dissuade Title IX Coordinator Gretchen Dahlinger Means and Title IX Investigator Lauren Elan Helsper otherwise. USC Title IX simply discredited statements of Zoe Katz, the person with the most relevant, material, and temporally proximate testimony, by accusing her of being a ?battered? women whose denials of abuse could not be believed. Zoe Katz is a strong, vocal, successful athlete and student and the way USC Title IX treated her is beyond insulting and demeaning. EX PARTE APPLICATION FOR STAY 17 have already experienced irreparable harm as a result of and discriminatory proceedings. Without an investigation, and without any evidence to substantiate the Title IX Of?ce?s claims, Dr. Carry upheld the interim suspension, separating me from my academic programs for the Spring 2017 semester. If I had been permitted to take classes at USC or another university during the Spring 2017 semester, I would have completed my undergraduate degree and been able to transfer as a graduate student to another university anywhere in the country. As a graduate transfer student, I would have had the opportunity to play football for one more season at a Division?l university. Now, with only two classes left to complete my undergraduate degree and my opportunity to play football at USC revoked, I have lost the opportunity to play college football altogether. 11. If the Court does not exercise its discretion to stay my expulsion, I will suffer irreparable harm by being permanently separated from my academic programs, professors, mentors, and contacts. I am only two classes shy of graduating, meaning I have earned nearly all of my 128 baccalaureate units required for graduation at the undergraduate level. Transferring to another university at this point in my academic career would be redundant, time-consuming, and expensive considering that most universities have strict requirements regarding the minimum number of units that must be completed at that university for graduation eligibility. For instance, USC requires transfer students to complete a minimum of 64 units (half the units required for graduation) while in residence at USC. Attached hereto as Exhibit 2 is a true and correct copy of Policy on transfer credits. This means that even in the unlikely event I am able to transfer to another college or university with an expulsion mark on my transcript for interpersonal domestic violence, I will be required to meet the transfer requirements at my new university, which may entail forfeiting credits completed at USC and paying for and completing additional undergraduate units at my transfer university just to cam my undergraduate degree. 12. Athletically, the interim suspension in place during Title IX process and the subsequent expulsion have deprived me an opportunity to play college football as a graduate student at team that is in the conversation for a National Championship?or for any other Division 1 college football team in the nation. This makes it impossible for me to develop my ranking as a draft- eligible college football player for the NFL in the 2017 draft class, which will severely hinder my professional football career. EX PART APPLICATION FOR STAY 18 13. Because I was banned from all USC facilities, I was unable to receive medical treatment or rehabilitative care for the surgery that had been performed on my knee by USC doctors on January 10, 2017, which affected my recovery. 14. My reputation will suffer if a stay is not issued, as USC announced publicly that I would not return to USC due to a student code of conduct issue. I am now known as the Rose Bowl kicker who got expelled for student: conduct code Violations. Those who learn that I was expelled due to interpersonal domestic misconduct will certainly believe that such a serious punishment was substantiated by the weight of credible evidence, and their good opinion of me, once lost, will be lost for good. I declare under the penalty of perjury in the State of California and of the United States of America that the foregoing is true and correct. Sign on the date below in San Diego County. Date: August 17, 2017 r? Mattherw'Bodti-ineesw EX PARTE APPLICATION FOR STAY 19 information that makes the existence of a fact or inference more or less likely. The Title IX Coordinator may exclude information that is not relevant or is not considered credible or reliable in the investigatory process.? 52. Under the Policy and Title IX, fact-finders and decision-makers may not conclude that a student is responsible for violating the Policy based on the lesser standard that the accusation is supported by substantial evidence. 53. If the evidence is so evenly balanced that the investigator is unable to say that the evidence on either side of an issue preponderates, the investigator?s ?nding on that issue must be against the party who had the burden of proving it?min this case, the University. B. Summary Of Events. 1. January 21, 2017. 54. As of January 21, 2017, Zoe Katz, 22, was captain of the USC women?s tennis team, was a nationally ranked singles player, and had been dating Matthew Boermeester for well over a year. Mr. Boermeester, then 22, a kicker on football team, was limping with a knee brace, due to recent knee surgery on January 10, 2017. 55. Around midnight on January 21, 2017, Ms. Katz and Mr. Boermeester returned to Ms. Katz?s residence after getting french fries at McDonalds. The two were briefly engaged in loud, consensual horseplay and laughing in the alley before going into Ms. Katz? residence. At'one point, Max Brenner, another USC student, walked past Ms. Katz and Mr. Boermeester to put his garbage in the dumpster and then walked back inside without ever turning his head towards the two of them. As they entered her building, Dylan Holt,?8 another USC student who had apparently seen part of their interaction from a window, approached Ms. Katz and Mr. Boermeester and to see if Ms. Katz was alright. Ms. Katz said she was ?ne. 43 Dylan Holt later told the Title IX Of?ce that he did not want to participate in the investigation and that he had not seen the entire interaction between Ms. Katz and Mr. Boermeester in the alley. PETITION FOR WRIT OF MANDAMUS 20 Matthew Boermeester Decl. Attachment, Page 1 The Report to USC Title IX Of?ce. 56. Ms. Zoe Katz never made any report to USC concerning Petitioner. 57. Dylan Holt, who had asked Ms. Katz if she was alright, told his roommate Tanner Smith what Dylan thought he saw going on in the alley from his window. 58. Tanner Smith also approached Ms. Katz that night and noticed that Ms. Katz did not seem upset by her interaction with Petitioner in the alley. 59. Tanner Smith, however, later spoke to his father Peter Smith, the USC Men?s Tennis Coach, about what Dylan had told him. As a ReSponsible Employee, tennis coach Peter Smith was required to report to the USC Title IX Of?ce what he had been told by his son, Tanner Smith, who had relayed to his father what Tanner had heard from Dylan Holt. 60. Policy states: Responsible Employees must immediately report all known information about suspected prohibited conduct to the Title IX Of?ce. This includes the name of the parties and known details of the conduct. This duty applies no matter how the information is learned; whether from direct report from an affected party, from social media, or from a concerned third party. Failure by a Responsible Employee to make a timely report of prohibited conduct may be subject to discipline, up to and including removal from their position.? (PT0230.) Although the USC Title IX investigation refers to 206 Katz as the ?Reporting Party/3?49 Ms. Katz repeatedly told USC that she had not experienced any prohibited conduct by Petitioner. I 62. On or about January 26, 2017, Lynette S. Merriman, Assistant Vice Provost for Student Affairs, noti?ed Petitioner that ?[t]he Of?ce of the Vice President for Student Affairs has placed you on interim suspension pending administrative review of a Title, IX investigation.? Mr. Boermeester was escorted off campus on January 26, 2016 and was excluded from all classes, seminars and university programs, not permitted any 49 Policy states, ?For the purposes of this policy, the individual who is reported to have experienced prohibited conduct is referredto as the Reporting Party. The ReSpondent is the individual who is reported to have committed the prohibited conduct.? PETITION FOR WRIT OF MANDAMUS 2] Matthew Boermeest?er Decl. Attachment, Page 2 J. . . involvement with organized football team functions including practice, games, or training, and was banned from all University sponsored activities. 63. Assistant Vice Provost Merriman also noti?ed Mr. Boerrneester, ?You may haVe no contact with Z.K. [Zoe Katz], directly or indirectly by any means.? 64. Neither Zoe Katz nor Matthew Boerrneester?two adults in a consensual, private, romantic relationship?had any interest in remaining apart. 65. USC later charged Petitioner with violating the interim measure because Ms. Katz and Petitioner continued their private relationship, which should be of no concern to the University. 3. The Title IX In vestigation. 66. From approximately January 22, 2017, through March 22, 2017, Title IX Investigator Lauren Elan Helsper50 conducted her investigation, interviewing Matthew Boermeester, Zoe Katz, Dylan Holt, Max Brenner, as well as fourteen other witnesses who had no ?rst~hand knowledge of any of the events of January 21, 2017. Title IX investigator Helsper also collected screenshots of text messages, emails, an audio recording, and security video footage from the alley on January 21, 2017. 67. Title IX Investigator Lauren Elan Helsper does not audio record or otherwise make a transcription of her witness interviews. There is no verbatim record of the questions that the Title IX Office asks witnesses, nor the response from the witness. The record of witness interviews consists of notations and summaries prepared by Title IX investigator Helsper. 68. USC also does not provide the accused student with the evidence. The evidence can only be viewed in person at the Title IX Of?ce, or, under certain circumstances, viewed online via a web-based service called OneHub, which does not allow for 50 According to website, ?Lauren began working at USC in 201 as student crisis case manager in Student Affairs. She transitioned to Equity and Diversity in 2014 as an investigator and project specialist before joining the Title IX Office. Lauren earned her master?s degree in postsecondary education and student affairs at USC and earned her bachelor?s degree from UCLA. She is currently working on her doctorate at USC in higher education administration.? PETITION FOR WRIT OF MANDAMUS 22 Matthew Boermeester Decl. Attachment, Page 3 r- ,r -- a, .x E. documents to be downloaded, saved, or printed. 69. USC prohibits the accused student from having a copy of the actual documents or evidence. According to Policy: Evidence Review. occurs at the Title IX Of?ce. Witness statements, and documentary evidence, and audio/Visual material is provided for review. Parties are not provided copies or allowed to take photOgraphs. Parties may take notes. (PT0246.) 70. Zoe Katz? insistence that no prohibited conduct occurred in the alley on January 21, 2017 is con?rmed by the security video footage from the alley, which USC refuses to turn over but did allow Ms. Katz, Petitioner, and their advisors to view in the Title IX Office. 71. USC prohibits students from being represented by an attorney in the Title IX process. As mandated by federal law, USC Policy provides that an attorney may serve as an advisor, however, the advisor is only ?to provide support and assistance in understanding and navigating the investigation process . . . The advisor is not an advocate.? (PT0240.) 72. Title IX investigator Helsper was supervised by USC's Title IX Coordinator Gretchen Dahlinger Means,5 who also participated in at least some investigation interviews. 5' According to website, Gretchen Dahlinger Means was a prosecutor with the San Diego District Attorney?s Of?ce from 2000 to 2007, where she was assigned to the Sex Crimes Unit and prosecuted cases involving sexual assaults, Sexually Violent Predator commitments, sex-based homicides, and criminal sexual exploitation. Ms. Means also participated on a variety of state and federal task forces dedicated to combating criminal sexual exploitation and helped form a county-wide, multi-disciplinary group on the topic. She provided 24?hour support to law enforcement in the San Diego region and developed and facilitated annual training on sexual assault prosecution, and taught internationally on sexual assault and criminal sexual exploitation. In 2013, Gretchen was recruited by the U.S. Marine Corps and became a Highly Quali?ed Expert in Sexuai Assault and Complex Litigation. She developed sexual assault protocol, and trained and mentored prosecutors on ?ve west coast installations. In another Title IX case, Title IX Coordinator Gretchen Dahlinger Means acknowledged that - she and USC Title IX investigator Patrick Noonan referred to an accused male student and his advisor as ?motherfuckers.? See, John Doe Ainsley Carry, a! at, .Los Angeles Superior Court Case PETITION FOR WRIT OF MANDAMUS 23 Matthew Boermeester Decl. Attachment, Page 4 mammameSEm-??jaa?a?za evidentiary hearing before a neutral or impartial panel or adjudicator. 4. The Evidence Hearing. Findings of Fact, and Guilt. 73. After the Title IX Of?ce completes the investigation, USC does not conduct an 74. Instead of an evidentiary hearing, Policy provides for what it calls an ?Evidence Hearing,? where Title IX Coordinator Gretchen Dahlinger Means and Title investigator Lauren Elan Helsper meet with the Respondent and with the Reporting Party separately. In the Evidence Hearing, the students may reSpond orally or in writing to the evidence that they were permitted to view in Title IX Of?ce. Title IX Coordinator Gretchen Dahlinger Means may also ask each party questions that have been submitted by the other party. 75. SC provided no process for Matthew Boermeester to question, if even indirectly with, the complaining witnesses against him. In failing to provide this requirement of a fair process, USC impIOperly deprived Mr. Boermeester of ?a full opportunity to present his defense.? (Andersen v. Regents of Univ. ofCaZ. (1972) 22 Cal.App.3d 763, 771.) 76. For the Evidence Hearing, Zoe Katz submitted her written statement that denied that any prohibited conduct occurred on January 21, 2017, or at any time. 77. For his Evidence Hearing, Matthew Boermeester submitted his written statements that showed the prohibited conduct that USC alleges took place on January 21, 2017 did not occur. I 78. Given that no one actually saw the interaction in the alley other than Zoe Katz and Matthew Boermeester, and that the video does not depict any prohibited conduct, and there is no physical or direct evidence of any prohibited conduct, Matthew Boermeester expected to be cleared by ?fair, thorough, reliable, neutral and impartial investigation by a trained and experienced investigator.? 79. Under policy, the Title IX investigation is to consider only information that is relevant, material, and temporally proximate to the conduct at issue. (PT0238.) Character evidence is not admissible and will not be considered. (PT0238.) However, - PETITION FOR WRIT OF MANDAMUS 24 Matthew Boermeester Decl. Attachment, Page 5 u? i'rvx- '71. ,4 UV 71' ?1 the Policy also provides that Title IX investigator Helsper will decide what evidence she wants to consider in forming her personal opinions about ?ndings of fact. (PT0247.) 80. After Title IX investigator HeISper decides the facts, based on her own investigation and what evidence she wishes to consider, Ms. HeISper and Title IX Coordinator Gretchen Dahlinger Means decide whether the Respondent violated the Policy based on Ms. HeISper?s opinion regarding the facts. (PT0247.) 81. In this case, Title IX investigator Helsper and Title IX Coordinator Gretchen Dahlinger Means decided that Petitioner had violated the Policy sections VI.E., Intimate partner violence, and VI.G., Violation of an interim measure (in that Ms. Katz and Mr. Boermeester had continued their relationship.) 5. Anonymous Misconduct Sanctioning Panel. 82. After Ms. HeISper and Ms. Means found Petitioner responsible for violating the Policy, the Title IX Of?ce forwarded its Summary Administrative Report to the Misconduct Sanctioning Panel. The role of the Misconduct Sanctioning Panel is to determine what sanction is apprOpriate based on the conclusions of the Title IX Of?ce. (PT0248.) I 83. The Misconduct Sanctioning Panel is composed of three unidentified individuals, two of whom are staff or faculty designated by Michael Quick,52 the Provost and Senior Vice President for Academic Affairs, and the third member is an undergraduate or graduate student, depending on the standing of the Respondent. (PT0248.) 84. Title IX Coordinator Gretchen Dahlinger Means trains the members of the 52 According to website, Dr. Michael Quick has held this position since April 1, 2015, and was also responsible for overseeing the Keck School of Medicine and some 17 other professional schools. In response to the recently reported misconduct by USC medical school dean Dr. Carmen A. Pulia?to, Dr. Quick explained delay in taking action in his letter to faculty, ?1 know many people wanted us to act on allegations and hearsay, but we needed actual facts.? See, Paul Pringle, Adam Elmahrek, Matt Hamilton and Sarah Parvini, received more than a year of questions about former medical school deans conduct before scandal broke? (July 23, 2017) Los Angeles Times. dean-ethics~ZOl 70723-story.htm] PETITION FOR WRIT OF MANDAMUS 25 Matthew Boermeester Decl. Attachment, Page 6 on Jere: woo Misconduct Sanctioning Panel twice each year and the panelists serve terms of two school?years. (PT0248.) 85. Title IX Coordinator Gretchen Dahlinger Means attends the meetings and deliberations of the Misconduct Sanctioning Panel, but does not have a vote in determining the speci?c sanctions. (PT0248.) 86. In this case, the Misconduct Sanction Panel met on May 2, 2017, and decided that Petitioner should be expelled. - 6. A noana as A ppeIlate Parzef. 87. Under Policy, after the Misconduct Sanctioning Panel?s sanctioning decision, either the Reporting Party or the Respondent, or both, may ?le a written appeal to the Appellate Panel. (PTO249.) The Appellate Panel is composed of three unidenti?ed individuals, at least one of whom is a faculty member, appointed by Respondent Ainsley Carry, the Vice President for Student Affairs. (PTO249.) 88. Title IX Coordinator Gretchen Dahlinger Means is also__re5ponsible for the training of the Appellate Panel members. (PT0249.) 89. As to the appeal, the Policy provides: A review by the Appellate Panel is narrowly-tailored to the provisions of this policy and relevant reasons for appeal. Appeals are not a ?ill rehearing of the facts or (PT0250.) 90. Appellate Panel decisions ?are to defer to the Title IX Of?ce and the Misconduct Sanctioning Panel? and make recommendations to Respondent Ainsley Carry, Vice President for Student Affairs, who may modify or accept the recommendation at his sole discretion. (PT0253.) 91. In this case, the Appellate Panel denied Petitioner?s appeal but recommended a 2-year suspension instead of expulsion. 7. Final'Decision by RespondentAins/ev Curry. 92. Under Policy, Dr. Ainsley Carry, Vice President for Student Affairs, makes the ?nal decision on appeal and, once made, Dr. Carry?s decision is final and PETITION FOR WRIT OF MANDAMUS 26 Matthew Boermeester Decl. Attachment, Page 7 l?a r13 binding upon all parties. (PT0253.) 93. On July 7, 2017, Ainsley Carry approved the conclusions reached by the Title IX Investigator and the Appellate Panel regarding the two Policy violations, however, Dr. Carry did not accept the recommendation of the Appellate Panel to two-year suISpension, and increased the sanction to expulsion: Whether you intended to cause the Reporting Party harm or did so recklessly, expulsion is appropriate given the nature of the harm inflicted upon the Reporting Party,53 as well as your Violation of the University's Avoidance of Contact order. (PT0255.) 94. Once Respondent Dr. Carry issued his ?nal decision in Title IX Case 20170003, Petitioner had no further avenue of appeal. (PT0255.) .95. Shortly thereafter, USC announced publicly: Placekicker Matt Boenneester, whose 18 ?eld goals last year?including a 46-yarder atthe gun to win the Rose Bowl?~? were 1 shy of the school record, won?t return because of a student code of conduct Issue. PROCEDURAL ERRORS. 96. At a minimum USC was required to I) ?ensure the Title IX rights of the complainant,? but ?accord due process to both parties involved,? a requirement applicable to both state and private schools; (2) provide an ?adequate, reliable, and impartial investigation? (3) provide the complainant and the accused student ?an equal Opportunity to present relevant witnesses and other evidence?; (4) ensure that the ?factfinder and decision maker . . . have adequate training or knowledge regarding sexual violence? and (5) require ?documentation of all proceedings, which may include written ?ndings of fact, transcripts, or audio recordings.? The University has failed on almost every point. A. Doctrine 0f Judicial Non?Intervention Does Not Apply. 53 Zoe Kata denies she was ever harmed, there was no physical evidence of any harm, and Ms. Zatz repeatedly told USC that there was no prohibited conduct. PETITION FOR WRIT OF MANDAMUS 27 Matthew Boermeester Decl. Attachment, Page 8 DECLARATION DEN .UIMW OKDOO DECLARATION OF ZOE KATZ I, Zoe Katz, declare: I am a 22-year?old student athlete at the University of Southern California I have personal and ?rst?hand knowledge of the facts set forth in this Declaration, unless otherwise stated, and, if called as a witness, I could and would testify competently to those facts. 1. I make this declaration in support of Matthew Boermeester?s Motion for Stay of expulsion decision. I have read the Petition filed herein and am familiar with its contents. 2. As ofJanuary 21, 2017 I had been dating Matthew Boermeester for more than a year and we are still in a dating relationship. I was the captain ofthe USC women?s tennis team and I am nationally ranked singles tennis player. 3. Although USC refers to me as the ?Reporting Party? in their Title IX process, I never made a report to USC about Matthew Boermeester and repeatedly told USC Title IX personnel, including Title IX Coordinator Gretchen Dahlinger Means and Title IX Investigator Lauren Elan Helsper that Matthew Boermeester was falsely accused of conduct involving me. i 4. I made it very clear to USC that I have never been abused, assaulted or otherwise mistreated by Matthew Boermeester; not on January 21, 2017 and not ever. Nothing happened that warranted an investigation, much less the unfair, biased and drawn out process that we were forced to endure without speaking publicly. 5. On July 30, 2017, after the USC Title IX process was ?nally completed, I issued a public statement about the mistreatment that I had personally endured during Title IX investigation process, specifically from Title IX Coordinator Gretchen Dahlinger Means and Title IX Investigator Lauren Elan Helsper. Attached to this declaration is a true and correct copy of the public statement that I issued. The representations I made in my public statement are true and correct. 6. During the Title IX process I felt so misled, harassed, threatened and discriminated against by Title IX personnel, Specifically Gretchen Dahlinger Means and Lauren Elan I-Ielsper, that I had to retain my own attorney to protect myself and to try to get Title IX of?ce to listen to me. 7. Most alarming, I saw that statements of witnesses, including my own statements to Gretchen Dahlinger Means and Laruen Elan Helsper, were misrepresented, misquoted and taken out of context in DECLARATION OF ZOE KATZ 2 order to support Ms. Means? and Ms. Helsper?s own personal opinions about what they think happened. 8. Looking back in hindsight, I now see that Title IX Coordinator Gretchen Dahlinger Means and Title IX Investigator Lauren Elan Helsper must so strongly presume reports of misconduct to be true, especially allegations against very male scholar-athletes such as Matthew Boermeester, that ?the ends justi?es the means? and the accused student will be judged guilty even with no evidentiary support and against the uncontradicted testimony of the supposed ?victim.? 9. I ask the court to stay entire action and decision against Matthew Boermeester, including the expulsion I declare under the penalty of perjury in the State of California that the foregoing is true and correct. Sign at San Diego, California, and on date set below. Date: August 16, 2017 w? 266 Katz DECLARATION OF ZOE KATZ 3 Law Office Samantha Greene 3555 Fourth Avenue Kerry L. Steigerwalt sevens Legal! AFC San Diego CA 92103 Vanessa Albert (619) 297-2800 Alexander H. Fuqua FOR IMMEDIATE RELEASE July 30, 2017 Zoe Katz Statement about the USC Title IX Investigation of Matt Boermeester Los Angeles, CA - I really do not know how to make a statement like this but I am determined to try to have my voice heard. I am Zoe Katz and lam a 22 year old student athlete at USC (captain ofthe women?s tennis team), nationally ranked singles player and have been dating Matt Boermeester for well over a year. Matt, the Trojan kicker who helped win the Rose Bowl, has been falsely accused of conduct involving me. The fact that I have to publicly state this truth is because of how both Matt and I have been treated by USC's Title IX office. lam speaking up now because this horrible and unjust six-month process has finally concluded. I will tell you that I am afraid of Title IX office. I hope that my comments will not cause USC's Title IX office to further retaliate against me in any way. I want to be very clear that I have never been abused, assaulted or otherwise mistreated by Matt. He is an incredible person, and I am and have been 100% behind him. Nothing happened that warranted an investigation, much less the unfair, biased and drawn out process that we have been forced to endure quietly. Terrible and untrue things have been said about Matt by people who don't even know him,?including apparently the third party who contacted Title IX, and these bizarre assertions have been treated as fact in this investigation. Words, including mine, have been incompetently or intentionally misrepresented, misquoted and taken out of context, which should not be that surprising since no statements were recorded or verified. The first time I was mandated to come in and be interviewed by the Title iX office, i was told that I must be afraid of Matt, which I definitely was not and am not. When I told the truth about Matt, in repeated interrogations, I was stereotyped and was told I must be a "battered" woman, and that made me feel demeaned and absurdly profiled. I understand that domestic violence is a terrible problem, but in no way does that apply to Matt and me. On one occasion I was told to come in to view a videotape - which I was happy to do - and then nothing was shown to me. It ended up being just another interrogation. I feel I was misled, harassed, threatened and discriminated against by the Title IX office to such an extent that i had to retain my own attorney during the process to protect myself and to try to get them to listen to me. The Title IX office?s response was dismissive and demeaning, "We are sorry you feel that way." Looking back, Matt never had a chance. Before he was even interviewed by the Title IX investigator, he was suspended from the University. He was not permitted to go to class or be on campus (he had two classes left Zoe Katz Decl. Attachment, Page 1 to graduate and he was not allowed to take them elsewhere), he was not permitted to rehabilitate his knee with our trainers (he had surgery by USC doctors two weeks before), he was publicly removed from the football team and all of its activities, he was forbidden to contact me because of an unfounded concern about my safety (it was a one-way no contact order, and every one of my repeated attempts and those of my own attorney to have it lifted it were denied), and he was told he could not talk about the matter or he would potentially face another alleged violation of the policy. Others in the University community were told they could not talk to Matt or they could be investigated too. He was completely cut off from his school and the team he had kicked to victory in the Rose Bowl. I was told that if I contacted Matt, "things would not go well for him." i was also told that i could be charged and investigated if I spoke to anyone who they decided to call in as possible ?witnesses." Matt and I love USC. We have given our best on the tennis court and on the football field. do not understand how this situation could have been allowed to happen, especially at USC. The USC know and really love upholds values like family, trust and excellence. Facts and fairness are supposed to govern Title IX and not agendas, intimidation and falsehoods. lam so sad that a rogue group like the Title IX office can bring down this amazing school. On behalf of all Trojans, I have to speak up. But more importantly, lam speaking up for myself and for Matt. will not permit anyone to portray me as a victim, I am not. Nor will 1 stand by silently and watch a good person like Matt be railroaded by a rigged system. Matt Boermeester did nothing improper against me, ever. I would not stand for it. Nor will I stand for watching him be maligned and lied about, and I implore the USC community to stand together to stop this from happening to Matt or anyone else. I know we are not alone. califomia? oerioccou If you want any further information, please contact my attorney Kerry Steigerwalt. Zoe Katz Decl. Attachment, Page 2 ?36 1?81.) . . :2 ORDER UI ~40 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT MATTHEW BOERMEESTER, an individual, Pe??onen V. AINSLEY CARRY, an individual in his of?cial capacity as Assistant Vice Provost for Student Affairs; THE UNIVERSITY OF SOUTHERN CALIFORNIA, a California corporation; and DOES to 20 inclusive, Respondents. Case No.: 70473 [Proposed] ORDER GRANTING STAY OF OPERATION OF ADMINISTRATIVE ACTION PENDING COURT REVIEW Having considered the papers submitted in support of and opposition to Petitioner?s request for stay, and the argument in support of and in opposition to the stay, and ?nding good cause therefore; IT IS HEREBY ORDERED that the operation of the administrative action of Respondents? against Petitioner is stayed pending further order of the court. Date: Judge of the Superior Court ORDER RANTING STAY PROOF OF SERVICE STATE OF CALIFORNIA )ss. COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 888 West Sixth Street, Suite 400, Los Angeles, California 90017. On August 17, 2017, I served the foregoing document described NOTICE OF MOTION AND MOTION FOR STAY OF ADMINISTRATIVE ACTION PENDING COURT REVIEW OF PETITION on all interested parties listed below by transmitting to all interested parties a true copy thereof as follows: Karen Pazzani Young Zinn 8 Bate LLP 1150 South Olive Street, 18th Fl. Los Angeles, CA 90015 Telephone: (213) 382-1860 Facsimile: (213) 362-1881 Email: kpazzani@yzblaw.com ATTORNEYS FOR RESPONDENTS El BY FACSIMILE TRANSMISSION from FAX number (213) 624-1942 to the fax number set forth above. The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2005(i), I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. BY MAIL by placing a true copy thereof enclosed in a sealed envelope addressed as set forth above. I am readily familiar with the ?rm?s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with US. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in af?davit. IZI BY PERSONAL SERVICE by delivering a copy of the document(s) by hand to the addressee or I cause such envelope to be delivered by process server. BY EXPRESS SERVICE by depositing in a box or other facility regularly maintained by the express service carrier or delivering to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served. BY ELECTRONIC TRANSMISSION by transmitting a PDF version of the document(s) by electronic mail to the party(s) identi?ed on the service list using the e-mail address(es) indicated. I declare under penalty of perjury under the laws of the State of California is trueand correct. I declare under penalty of perjury under the laws of the United 8 of America that the,aboveiis true and correct. Executed on August 17, 2017 in Los Angeles, California (fl Yesenkia Alvarado \dl< EXPARTE APPLICATION FOR STAY 33