Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 1 of 6

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1 Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 1 of 6 Bron Rammell MAY, RAMMELL & THOMPSON, CHARTERED 216 W. Whitman P.O. Box 370 Pocatello, ID Telephone: (208) Facsimile: (208) Idaho State Bar No IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO MARIANNE COWGILL, WILLIAM DECKER and KIDS, INCORPORATED, d/b/a ADVENTURE FOR KIDS DAYCARE, CASE NO: CV vs. Plaintiff, COMPLAINT AND DEMAND FOR JURY TRIAL CITY OF POCATELLO Defendants. COME NOW Plaintiffs Marianne Cowgill, Kids, Incorporated, and William Decker, by and through their attorney, Bron Rammell of May, Rammell & Thompson, Chartered, and for causes of action against the Defendant City of Pocatello, complains and alleges as follows: I. JURISDICTION 1. Marianne Cowgill is a citizen of the State of Idaho, residing in Pocatello, Idaho. 2. Kids, Incorporated, d/b/a Adventure for Kids Daycare, was a corporation in good standing in Idaho at all material times. 3. William Decker is a 50% shareholder in Kids, Incorporated. 4. Defendant Pocatello City is an Idaho municipal corporation, a local governing body, and this Court has in personam and subject matter jurisdiction in this action pursuant to Title 28 U.S.C. 1343(a)(3) & (4). Incorporated. 5. Adventure for Kids Daycare is the local, assumed business name of Kids, COMPLAINT AND DEMAND FOR JURY TRIAL PAGE 1

2 Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 2 of 6 6. Adventure for Kids Daycare is not an actual person or entity. 7. Kids, Incorporated was a corporation in good standing with the State of Idaho at all relevant times. 8. On July 19, 2012, the City of Pocatello revoked the Daycare Provider License for Adventure for Kids Daycare. 9. A copy of a letter from the City Clerk, dated July 24, 2012, confirming the revocation, is attached hereto as Exhibit On June 22, 2012, Marianne Cowgill received a letter from Scott Marchand of the Pocatello Police Department, stating that the City Clerk and the Pocatello Police Department were going to recommend to the City Council that your child care license be reviewed/revoked. 11. The letter stated that the hearing is pursuant to violation of City Code. 12. Two City Code sections were addressed in the letter: City Code and These two sections deal with the licensing of employees assisting a daycare, and the ratio of daycare staff to children, respectively. 13. No other claims or notices of violation were provided to Marianne. 14. No letters or notices were ever provided to Kids, Incorporated or to the other shareholder of Kids, Incorporated. 15. The letter claimed that the City Code was violated by allowing Ms. Toone [an employee of the daycare] to work at your child care facility since May 7 till June 14, 2012 without having applied for a child care license. 16. The letter claimed that City Code was violated when the 4 year of age child; B.W. 1 was left at Alameda Park for over one hour with no licensed staff members on site. It further claimed that this section of the code was violated when Ms. Chatterton and Ms. Toone were left at Alameda Park with 14 kids. Due to Ms. Toone not having a child care license or having made application with the city she is not counted towards the ratio. 17. The letter stated that the Pocatello City Council will discuss your license review/revocation at the city council meeting on July 5 th that starts at 6:00 PM. You will be 1 The child s full name appears in the public document, but in keeping with the rules and regulations associated with protecting minor s names from disclosure in public documents, initials have been used in this complaint. COMPLAINT AND DEMAND FOR JURY TRIAL PAGE 2

3 Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 3 of 6 afforded an opportunity to be heard at that time. If you plan to oppose this recommendation of revocation, please notify [the]city clerk. 18. Marianne was confused by the conflicting statements in the letter, including that on one hand the letter talked about a license revocation and a hearing, but on the other hand, the letter talked about a license review, discussions and a meeting with the City Council. 19. Marianne attempted to find out what the letter was really about, and hired an attorney, Kyle Hansen to help her with the process. 20. Before the hearing, Kyle Hansen went to the city office and spoke with Sgt. Rick Capel, who was filling in for Captain Peterson, to see what was going on. 21. Sgt. Capel did not know what was going on, so he sought out Kim Stouse, the city s licensing enforcement officer to learn what was going on. 22. Sgt. Capel returned and informed Kyle that the city was not pursuing a revocation, but rather only wanted to put Marianne on probation. 23. As a result of that conversation, and based on the limited notice that Ms. Cowgill received, she and her counsel prepared to attend the meeting, to discuss the claimed code violations in the letter and to address the possibility of probation. 24. Marianne was never notified or told of the real purpose of the meeting. 25. On July 5, 2012, Ms. Cowgill appeared at the city council meeting with her attorney, prepared to discuss the city code violations identified in the letter and to discuss probation. 26. Neither Ms. Cowgill nor her attorney had been put on notice that the City had apparently changed their mind and were now going to seek revocation of the license from the city council instead of probation. 27. At the hearing, the Pocatello Police Department began by making misrepresentations about Ms. Cowgill and the daycare. 28. The misrepresentations were primarily related to facts that neither Ms. Cowgill nor the other Plaintiffs were told would be addressed at the meeting. 29. For example, Ms. Stouse addressed the City Council and began complaining and making misrepresentations about alleged problems from prior years that were not only omitted from the so called notice letter, but which were blown out of proportion, and had previously been resolved. COMPLAINT AND DEMAND FOR JURY TRIAL PAGE 3

4 Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 4 of As a consequence, neither Ms. Cowgill, Kids, Incorporated nor any of the shareholders of Kids, Incorporated had an opportunity to prepare to refute the misrepresentations and unnoticed issues at the meeting; in addition to not knowing that the true purpose of the meeting was to revoke the licenses. 31. Kids, Incorporated never received any proper notice of its right to appear and defend itself against any of the claims of the city. 32. The next day, July 6, 2012, the Idaho State Journal, a local newspaper headline reported Pocatello revokes daycare center s license. 33. The article quoted the city council that the decision effectively shuts down the daycare and that the parents of the kids had 10 days to make arrangements for their kids at a new daycare. 34. The article reported Captain Peterson of the Pocatello City Police Department claiming a similar incident had happened in In the article, Kyle Hansen explained that the facts from 2007 were in dispute. 36. Of course, he could not really address the facts of the alleged 2007 incident, because no notice was given to any of the Plaintiffs that they would be expected to defend against random claims (that had already been dealt with and resolved) 5 years previous. 37. On July 19, 2012, the city council formally adopted the revocation and said that Marianne could appeal the decision within 28 days. The decision referred Marianne to Idaho Code I.C does not provide a right of appeal from city council decisions revoking daycare licenses. 39. Consequently, the city council sent another decision on July 24, 2012 redacting the right to appeal. 40. As a result of the license revocation, publishing that the day care center would be shut down in 10 days, and not providing for any appeal, Plaintiffs lost all of their business, and Kids, Incorporated lost its value. 41. Due process and equal protection are guaranteed by the 14 th Amendment of the U.S. Constitution and Article I, Section 13, of the Constitution of the State of Idaho. 42. Ms. Cowgill and Kids, Incorporated were denied due process of law and equal protection under the 14 th Amendment to the United States Constitution. COMPLAINT AND DEMAND FOR JURY TRIAL PAGE 4

5 Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 5 of Plaintiffs due process and equal protection were denied because, among other things: A. Plaintiffs were never put on notice of the true subject of the hearing scheduled July 5, 2012; B. Kids, Incorporated never received notice of the hearing from the City; C. The policies of the City of Pocatello and/or their practices effectively preclude judicial review or appeal of its executive decision to revoke the licenses applicable in this case; D. Plaintiffs are prevented from practicing their profession without a proper hearing and/or right to appeal. E. The notice was not only defective in its failure to notify Plaintiffs of the charges against them, but in its failure to put all parties on true notice that Plaintiffs property rights were at stake in the city council meeting of July 5, The City of Pocatello prevents a person or entity whose daycare license has been revoked from seeking any review of the decision for at least one year. 45. Pocatello City Code states, Persons denied a license under this section by the city council may not reapply for one year from that date of the denial. 46. Denying reapplication for a year denies Plaintiffs the ability to practice their chosen profession for that year without a hearing of any kind. 47. The denial comes as a consequence, not of a hearing, but because of the revocation of her license, and operation of an unconstitutional law U.S.C states that every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes of action to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress. 49. Because the City of Pocatello has denied, and continues to deny, Plaintiffs due process, Defendant is liable for all damages caused by its actions pursuant to 42 U.S.C and subject to suit in Federal Court. COMPLAINT AND DEMAND FOR JURY TRIAL PAGE 5

6 Case 4:13-cv BLW Document 1 Filed 06/24/13 Page 6 of Plaintiffs were entitled to constitutional protections of their property interests and were deprived of the right to practice their profession because they were prevented from any meaningful due process and from applying for a license for a year from the revocation of the licenses. 51. Ordinance denies due process to those whose licenses have been revoked, and as such is unconstitutional. 52. Ms. Cowgill was told that her license was not at stake. 53. Notice, including the right to be fairly notified of the issues to be considered, is a critical aspect of due process in any administrative process. 54. The City of Pocatello denied Ms. Cowgill due process by preventing her from practicing her profession without a hearing or due process of any kind. 55. As the result of the denial of due process and equal protection under the 4 th and 14 th Amendments to the United States Constitution, and as a further result of preventing Ms. Cowgill from practicing her profession, Adventure for Kids Daycare was unable to continue; Kids, Incorporated was dissolved and Ms. Cowgill s and William Decker s interests in Kids, Incorporated, d/b/a Adventure for Kids Daycare, was lost. 56. Plaintiffs are entitled to be compensated for their losses. 57. Plaintiffs are entitled to attorney s fees and costs pursuant to 42 U.S.C PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendant City of Pocatello for an amount in excess of $10,000 for damages, together with the costs of this suit, interest from the date this suit was instituted, reasonable attorney s fees pursuant to 42 U.S.C and such other relief as the Court may deem just and proper. Plaintiffs hereby request a trial by jury. DATED this 24th day of June, MAY, RAMMELL & THOMPSON, CHTD. Attorneys for Plaintiffs /s/ BRON RAMMELL COMPLAINT AND DEMAND FOR JURY TRIAL PAGE 6