March/April 2009 Newsletter
Volume: XV, Issue Number: 2
Judge Orders Governor to Turn Over “Chain of Command” Documents to the ACLU
Ruling in an Access to Public Records Act lawsuit the RI ACLU filed against Governor Donald Carcieri last August, Superior Court Judge Patricia Hurst has ordered the Governor to release certain requested documents to the ACLU, and further ordered that additional records be turned over to her for in camera (private) review to determine whether they too should be released. In doing so, she rejected motions by the Governor’s attorneys to dismiss the suit filed by RI ACLU volunteer attorney Kathleen Managhan. In the meantime, another battle is brewing over the ACLU’s efforts to obtain a related document from the Governor.
In December 2007, a major snowstorm hit the state when Governor Carcieri was out of the country. Traffic gridlock left some school children stranded on buses for hours. Upon his return, Governor Carcieri announced that Major General Robert Bray, head of the National Guard, would be in charge should similar situations occur in the future. The announcement prompted numerous concerns as to the legal propriety of giving such authority to Bray, a military official.
In response, the ACLU filed an open records request, asking the Governor for copies of any documents that, among other things, set out the chain of command for state governance in his absence, described the powers given Maj. Gen. Bray in his absence, and that imposed any limits on those powers. The Governor’s executive counsel, Kernan King, responded by turning over only one document: a news release issued by the Governor that attempted to respond to the questions raised in the media about this controversy. King alleged that the only other records responsive to the ACLU’s request were emails that were exempt from public disclosure because they were “internal documents that were created for internal purposes.”
The ACLU lawsuit noted that, despite the explanation given about “internal” emails, the Governor’s own news release contained a direct quote from an email his office had sent to the Providence Journal. Ruling from the bench, Judge Hurst ordered release to the ACLU of that email and follow-up exchanges. The judge also gave the Governor two weeks to turn over to her the alleged exempt emails so that she could make a determination as to the validity of the Governor’s claims that they were lawfully withheld. For the time being, the judge held off ruling on the ACLU’s request that a civil fine be imposed against the Governor for his clear violation of the open records law.
RI ACLU executive director Steven Brown called the judge’s ruling “an important victory for open government. It stands in stark contrast to the Governor’s openly antagonistic views about the public’s right to know.” Last June, the Governor vetoed legislation that would have strengthened the open records law in various respects.
Shortly after the ruling was issued, the ACLU learned that the Governor had in fact prepared a written “Continuity of Operations Plan” last June, about a month after the Affiliate’s open records request was denied by his office. Upon seeking a copy of the document last month, the Affiliate was told that some or all of it might be exempt from disclosure for “involv[ing] a danger to public welfare and security.” If the document is released in heavily redacted form, the Affiliate will likely amend the lawsuit to seek an uncensored copy of the document.
ACLU Sues Over Retaliation Against Inmate for Criticizing Prison Policies
The Rhode Island ACLU has filed a federal lawsuit against the Department of Corrections (DOC), alleging that correctional officials have engaged in a pattern of unconstitutional harassment against inmate Jason Cook after he publicly criticized Department of Corrections’ mail policies and sought legal assistance from the ACLU. The lawsuit, filed by ACLU volunteer attorneys from the law firm of DeLuca and Weizenbaum, details a series of retaliatory and disciplinary actions against Cook who, until he spoke out, had a relatively clean disciplinary record.
Among the sequence of events alleged by the ACLU in the suit:
- In October 2007, a Providence Journal story quoted Cook criticizing a new DOC policy limiting the written materials available to inmates. A week later, he was fired from his kitchen job under the pretext that he was caught on a video camera stealing state property. He was later found not guilty of the charge.
- In February 2008, the RI ACLU intervened on Cook’s behalf in the dispute over the new inmate mail policy by writing DOC officials in support of his position. Shortly thereafter, correctional officers conducted a destructive search of Cook’s cell that damaged some of his personal property.
- After complaining to the DOC’s Office of Inspections about that search, Cook was advised that other inmates in his module with similar complaints should contact the Office. Cook posted a notice to that effect on an inmate bulletin board. A few days later, as a result of that posting, he was disciplined for “engaging in or encouraging a group demonstration and/or activities,” strip searched and taken to segregation. Two weeks later, he was finally given a hearing on the charge, but not allowed to present and/or question any witnesses. In the meantime, the mail policy about which he and the ACLU had complained was rescinded by the DOC.
- Cook was found guilty of the charge and sanctioned with 30 days in segregation and the loss of good time. At the end of the hearing on the charge, the hearing officer turned off the tape recorder of the proceeding and told Cook that “this is what happens when you get the ACLU involved in our business.”
- In May 2008, Cook was once again strip searched and thrown into segregation on the grounds that a letter he had written to the Parole Board was “threatening.” He was held in segregation for almost three weeks without a hearing before being released.
- In September 2008, Cook sent a letter to Corrections Director A.T. Wall protesting the lack of a response to grievances he had submitted. Two days later, Cook was again subjected to a strip search and a cell search where his property was destroyed. Officers also looked through Cook’s legal materials and asked him if he had communicated further with any Providence Journal reporters.
The ACLU lawsuit argues that corrections officials’ actions “in retaliating against Cook for publicly criticizing policy changes at the Rhode Island Department of Corrections” violated his First Amendment right to freedom of speech “and displayed both deliberate indifference and a reckless disregard of Cook’s constitutional rights.” The suit further claims that the various disciplinary actions taken against him violated Cook’s due process rights. The suit seeks a court order declaring these actions unconstitutional, preventing any further retaliation against Cook for exercising his First Amendment rights, and awarding him monetary damages and attorneys’ fees.
RI ACLU volunteer attorney Amato DeLuca said: “The Constitution does not magically disappear when a Rhode Islander enters the Department of Corrections. The fact that Mr. Cook spoke up and was retaliated against in various ways, including being thrown into isolation for weeks on end, is an outrage. The goal of this lawsuit is to win justice for those like Mr. Cook who are unjustly persecuted for speaking out.”
Most disturbingly, corrections officials had similarly retaliated against the last inmate the ACLU represented in federal court, Wesley Spratt. Spratt was challenging a DOC policy, ultimately ruled unconstitutional, that barred him from preaching at religious services at the prison. Spratt too had a virtually clean disciplinary record, but a week after the ACLU argued his case before a judge, Spratt was disciplined on what the ACLU claimed was a bogus charge.
Ironically, the mail policy at issue that Cook initially protested was ultimately withdrawn by prison officials after the ACLU intervened and threatened to sue over it. The policy barred family members from ordering books or magazine subscriptions for inmates, and required inmates to obtain publications directly from a publisher with their own funds.
Key Witness in Wyatt Case Will Not Be Deported Before Trial
In response to an emergency request filed by the RI ACLU, a judge halted the deportation of a key witness in the ACLU’s lawsuit on behalf of the family of Hiu Lui (“Jason”) Ng. Ng was a 34-year-old Chinese detainee who died last August while in the custody of immigration officials at the Wyatt Detention Facility in Central Falls. Prison officials denied Ng appropriate medical care despite his complaints of excruciating pain. He was diagnosed with terminal liver cancer and a broken spine less than a week before his death.
U.S. District Court Judge William E. Smith ordered that Roger Gracias Lozano’s deportation, scheduled for March 12, be delayed at least two months in order to allow him to be deposed by the ACLU’s attorneys. Gracias Lozano was Ng’s cellmate and friend in Wyatt, where he witnessed many of the assaults and deprivations against Ng alleged in the lawsuit, and helped care for him before his death.
Judge Smith agreed with RI ACLU volunteer attorney Fidelma Fitzpatrick, who asserted that Gracias Lozano needed to remain in the U.S. so that his witness testimony could be taken and preserved for a future trial seeking damages against Immigrations and Customs Enforcement (ICE), Wyatt, and many other defendants. The judge rejected arguments from ICE’s attorney that he had no authority to block ICE from proceeding with Gracias Lozano’s deportation.
In the meantime, the U.S. Department of Justice announced that it was conducting a criminal investigation into Ng’s death. After negotiating with DOJ officials, RI ACLU volunteer attorney Jack McConnell, Jr. was able to secure Gracias Lozano’s release from prison, and he has now been reunited with his family living in Arizona.
In a related development, the RI ACLU sent a letter to Mayor Charles Moreau of Central Falls, expressing concern about the City’s response to Ng’s death. The letter contrasted city officials’ general silence surrounding his death with their outcry over the U.S. Immigration and Customs Enforcement’s decision to remove immigrant detainees from Wyatt, and the city’s recent efforts to solicit a private buyer for the prison. “The juxtaposition of these responses and the sense of priorities they highlight are extremely disturbing,” states the letter. Even after Ng’s death, the letter notes, the City entrusted Wyatt with detaining teenage curfew violators at the facility.
One of the potential buyers that the City has been soliciting is the Corrections Corporation of America (CCA), a for-profit corporation. The ACLU letter summarized a decade of documented questionable practices at facilities run by CCA, including overcrowding, the use of excessive force, negligence and lack of adequate medical care.
RI ACLU Submits Brief Supporting New Election For Smithfield Town Council
The Rhode Island ACLU has submitted a “friend of the court” brief supporting plaintiffs who are asking the U.S. Court of Appeals in Boston to order a new election for five Smithfield Town Council seats because of defective ballots that thousands of town voters used in casting their votes.
In the election held last November, ballots that were originally provided voters erroneously listed the name of a Council candidate who had dropped out of the race in September. When elections officials realized the error, new ballots were quickly printed and distributed, but only after almost 600 votes had been cast for the withdrawn candidate. Despite questions about the validity of the election, the Board of Canvassers certified the top five highest vote-getters as winners for the seats, even though the difference between the fifth and six place candidates was only 39 votes.
After the state Board of Elections refused to order a new election, four Smithfield voters filed a federal lawsuit seeking to have the election declared void. Concluding that the erroneously cast ballots were unlikely to have changed the outcome of the election, U.S. District Judge William E. Smith dismissed the lawsuit.
In supporting the voters’ appeal of that ruling, the ACLU’s friend of the court brief, filed by volunteer attorney Mel A. Topf, notes:
“A crucial underlying fact here is just how close the vote at issue was. Approximately 9,500 voters submitted ballots for election to the Town Council. The difference between the fifth-place candidate and the sixth-place candidate was just 39 votes. Of the 9,500 voters, nearly one out of three voters received defective ballots. This dilution, in light of the extraordinarily close vote on one hand and the very large number of defective ballots on the other, constitutes a broad-gauged election irregularity sufficient to support a substantial constitutional claim.”
The brief adds that courts have an obligation to intervene in cases of reasonable doubt: “[Judicial] intervention is warranted when election irregularities are sufficient to render the results doubtful, as well as when they are sufficient to change the election results. That standard is appropriate because a reasonable doubt about the outcome of an election – especially, as here, a very close election – undermines the public trust and confidence in the integrity of elections. Due process involves the appearance of fairness as well as actual fairness.”
The 2009 General Assembly Session at Mid-Point
As this newsletter went to press, the General Assembly was more than halfway through its session, yet only a handful of votes have been taken on legislation. Although the Affiliate has already testified on dozens of bills, legislative leaders – facing an enormous budget crisis – have given no clear sense of non-fiscal priorities. As a result, with less than three months left in the session, the general fate of civil liberties legislation at the State House remains very uncertain. This article summarizes just a few of the significant bills on which the Affiliate has lobbied, and which the ACLU will be keeping an eye on as votes occur in the coming weeks.
First Amendment Rights
Cyberstalking. Under a bill proposed by the Attorney General, any person who posts on a website opinions or information – even factual data – could be potentially subject to criminal charges if the posting is designed to “harass” and could cause a person “substantial emotional distress.” Thus, a website or blog designed to mock celebrities or to discredit a business because of poor service could place the poster in criminal jeopardy. At legislative hearings, the ACLU argued that the bill raised enormous First Amendment concerns and should be rejected. (H-5748, S-566)
Right to Strike. The ACLU testified against a bill that would authorize the license suspension of teachers who engage in a strike, defined so broadly as to include a teacher’s “abstaining” even in part “from the full performance of his or her duties in his or her normal manner without permission.” Noting that the definition “gives school administrators virtually carte blanche authority to punish selected teachers on a completely arbitrary basis,” the Affiliate further condemned another provision in the bill that put the burden in suspension hearings on the teacher “to demonstrate that he or she did not participate in a strike,” instead of requiring the school district to prove that the teacher did in fact engage in a strike. (H-5232, S-658)
Open Records. Rep. Edith Ajello and Sen. Michael Lenihan, last year’s sponsors of vetoed legislation that strengthened the state’s Access to Public Records Act in numerous ways, have been working diligently to get the bill passed again. Sen. Lenihan has met with the primary opponents of the bill – police chiefs and the Attorney General – to seek a compromise, but it is uncertain whether that is possible. The Affiliate, along with other open government groups, has been pushing for re-passage of a strong version of the bill. (H-5136, S-374)
Access to House and Senate Floors. Continuing an unfortunate trend over the years, the House of Representatives decided this session to further cut-off public access to the House floor before sessions begin. The effect of the change is to prevent both lobbyists and individual constituents from meeting with their representatives anywhere from 10-40 minutes before the start of session. This pre-session time is crucial because representatives are often hurrying off to committee meetings once the floor session is done. The Senate unfortunately followed suit with passage of a slightly less restrictive rule. The ACLU unsuccessfully testified against the changes. (H-5529, S-792)
Voter ID. The Affiliate and other civil rights groups testified against various bills requiring individuals to provide certain forms of identification in order to vote at the polling booth. Secretary of State A. Ralph Mollis has been a major proponent of the legislation. Studies have shown that a voter ID requirement can serve as a poll tax, disenfranchising eligible voters and posing a particular burden on poor, elderly, disabled and minority voters who may not have the requisite ID or the ability to pay to obtain the necessary documents for one. The ACLU also charged that the bill was an attempt to “fix” a largely non-existent problem of alleged voter impersonation at the polls. (S-83, S-141, S-435, S-437, H-5097, H-5051)
HIV Testing. Responding to controversial legislation promoted by some doctors to expand HIV testing while significantly reducing informed consent and counseling protections in place for patients, the General Assembly last year created a study commission to examine the issue. The commission is expected to soon propose changes to current law. The ACLU is lobbying to minimize those changes and protect the statutory safeguards currently in place. (H-5415, S-245)
Marijuana. Hearings were held on legislation by Sen. Rhoda Perry and Rep. Thomas Slater to establish state-regulated compassion centers for authorized patients to safely obtain medical marijuana. A positive hearing was also held on a bill to decriminalize possession of small amounts of marijuana. (H-5359, S-185)
Prostitution. For the past few years, some members of the Providence delegation have been pushing legislation to close the so-called “loophole” in state law that makes indoor prostitution legal, saying the bill is necessary to counter sex trafficking. The ACLU has responded by noting that four felony statutes already on the books allow the police to arrest traffickers, pimps and any other individual profiting from prostitution, and that the only effect of “closing the loophole” will be to subject more women to arrest and prison time. Supporters and opponents of the legislation squared off at a House Judiciary Committee hearing this month, and it is unknown how committee members will deal with the issue. (H-5254)
Costs for BCI Checks. The ACLU testified against a budget article proposed by the Governor that would increase from $5 to $25 the cost for a criminal records check. The Affiliate noted that the number of occupations licensed or regulated by the state that require a BCI check continues to increase, and that they most often apply to low-paying and female-dominated jobs, like day care workers and nursing home employees. If the state feels it is important enough to have criminal record checks conducted on some job applicants, the ACLU argued that the state should at least be willing to pay for them. (H-5983, Article 11)
Internet Subpoenas. Ever since 9/11, the State Police have been pushing a troubling proposal to give law enforcement broad authority to secretly obtain, without a warrant, subscriber information from Internet service providers. This year was no exception. ACLU volunteer attorney Miriam Weizenbaum testified before House and Senate Judiciary Committees against the bill this month, and the Affiliate is hopeful that no action will be taken on it. (H-5810, S-712)
Protection from Self-Incrimination. Another perennial bill from the Attorney General and the State Police would allow for the forced administration of blood tests on persons involved in vehicular accidents resulting in death or serious injury. The ACLU has objected that the forced taking of blood from a person for the purpose of using it as evidence against him or her is an unacceptable violation of the privilege against self-incrimination, and that proponents have been unable to point to any instances where lack of this power has hindered the state from obtaining drunk driving convictions. The bill routinely passes the Senate, but dies in the House. The ACLU is working to counteract pressure on the House, prompted by some recent drunk driving fatalities in the state, to pass the bill. (H-5039, S-416)
Rights of Immigrants. Legislation requiring all employers in the state to participate in the federal government’s faulty work authorization verification program known as “E-Verify” has been the subject of lengthy committee hearings. In opposing the legislation, the ACLU pointed out that the program contains millions of database errors and has been found to increase workplace discrimination on the basis of national origin. The bill passed the House last year but died in the Senate. (H-5143, S-210)
Interpreter Services. On the positive side, the Senate has approved for the second year in a row a bill requiring the Department of Human Services to provide appropriate language interpreter services to clients in accordance with federal civil rights law. The legislation, sponsored by Sen. Maryellen Goodwin, died last year in House Finance Committee. It has been introduced on the House side by Rep. Elizabeth Dennigan. (H-5357, S-306)
R.I. Civil Rights Act. Senate Judiciary Committee has reapproved legislation vetoed last year by the Governor that would specify that plaintiffs have three years, rather than one, to sue under a major state law banning discrimination in employment and other settings. The bill responds to a R.I. Supreme Court ruling that concluded that complainants have only one year to bring suit, even though the default statute of limitations for virtually all other personal injury actions in Rhode Island is three years. The ACLU hopes the legislation, sponsored by Rep. Donna Walsh and Sen. Daniel Connors, will become law this year. (S-5135, S-162)
Women’s Rights. Retailers are currently required by law to post signs where tobacco products are sold to remind minors that it’s illegal for them to purchase cigarettes and other tobacco products. A committee hearing was held on legislation that would require those signs to add a warning to pregnant women that smoking is bad for them. The RI ACLU objected that the legislation improperly singles out pregnant women when smoking is known to cause a host of health problems to any number of groups of people, and that the signs would also serve to encourage people to snoop on and report pregnant women who purchase cigarettes. Though the ACLU did not dispute the health risks, the Affiliate testified that it was inappropriate to single out this one group for public shaming. (H-5800)
Comprehensive Racial Profiling Bill. The ACLU, the Urban League, PrYSM and other groups testified at a House hearing in support once again of a comprehensive racial profiling bill, sponsored by Sen. Rhoda Perry and Rep. Joseph Almeida. As in past years, the State Police and the RI Police Chiefs Association expressed opposition to the bill, which would significantly strengthen the state’s current racial profiling law. Although data continue to demonstrate that both blacks and Latinos are disproportionately stopped and searched by police in the state, even though they are less likely than whites to be found with contraband, police officials deny there is any need for legislation to deal with this serious problem. Unfortunately, the bill is again facing an uphill battle. (H-5108, S-155)
“Primary Seat Belt” Law. Although promoted as a safety measure, the State Police and the Department of Transportation decided to use the Governor’s budget this year as their vehicle to make seat belt use in the state a primary offense. At present, police can issue a seat belt ticket only if the driver has been pulled over for another reason. The ACLU testified that allowing police to pull over suspected seat belt violators will only increase the extent of racial profiling occurring in Rhode Island. (H-5983, Article 18)
Rights of Juveniles
School Uniforms. The Senate has approved a bill authorizing Woonsocket schools to require students to wear school uniforms. Although officials have touted the idea as a way to reduce school disciplinary problems, the ACLU noted that empirical evidence contradicts that notion.
In testimony before House and Senate committees, the ACLU further argued that compulsory school uniforms “promote a kind of regimentation and standardization that contradict the basic principles of individualism, free expression, and independent thinking” the school system should be encouraging. Thus far, the House has taken no action on a companion bill. (H-5077, S-20).
Youth Sports Council. The RI ACLU testified against a bill that aims to set up a government- appointed council to “provide oversight” of private youth sports organizations in the state, including the power to impose fines against coaches, players, parents or officials in response to complaints the council receives arising from youth sporting events.
In urging rejection of the bill, the Affiliate noted that it contains no standards at all as to how the council would handle complaints or impose fines, or what offenses could subject individuals to penalties. (H-5307, S-169)
Radio Frequency ID. Although the Governor has vetoed similar legislation twice, a Senate Committee has again approved ACLU legislation restricting the state and municipalities from using radio frequency identification (RFID) technology on students. RFID allows a person’s identity and movement to be monitored electronically, and was briefly used by the Middletown school district last year to track elementary school students. The bill separately limits public access to information gathered by a newly-installed RFID-driven E-ZPass toll payment system on the Pell Bridge. The legislative sponsors are Sen. Frank Ciccone and Rep. Lima. (S-211, H-6059)
For more information about any of the bills reviewed here, members are encouraged to contact the ACLU office, and to also call, write and testify on legislation of interest and concern.
RI ACLU Welcomes New Communications & Development Associate
The RI ACLU is pleased to welcome Sharon Mulligan as the Affiliate’s new Development and Communications Associate. Born in Washington D.C., Sharon came to Rhode Island eight years ago to attend Brown University and decided to stay. She has worked as a union organizer for the Service Employees International Union (SEIU) and UNITE-HERE. Sharon looks forward to continuing to meet the members of the Affiliate.
Tune in to the ACLU's Monthly Cable Access Show
For the month of May, our cable access show will highlight LGBT Issues and will feature Kathy Kushnir, Executive Director for Marriage Equality RI and Martha Holt, RI Bar’s LGBT Committee Co-Chair and attorney with Edwards, Angell Palmer & Dodge LLP.
- Channel 13 (Channel 32 on Verizon FIOS): Tuesdays 10:00 pm and Fridays 3:30 pm
- Channel 18 (Channel 38 on Verizon FIOS), Providence and N. Providence, Wednesdays 9:00 pm
The Rhode Island ACLU’s 50th Anniversary celebration continues. This past month included the hosting of two more “national security” debates.
After a successful first debate in Providence, the Affiliate followed with two more, one at the Old Bristol Courthouse and the other finishing up the series in Kingston at the University of Rhode Island. The debates featured U.S. Attorney Robert Corrente and local civil liberties expert and attorney Jerry Elmer, discussing the timely subject of “National Security and Civil Liberties: Guantanamo, Military Commissions and the Obama Administration.” Both speakers provided their views on how the U.S. should navigate through these issues. They touched on such matters as how to handle enemy combatants, and what the new administration’s view of the “war on terror” would and should be. The debates were followed by a question and answer period.
The Affiliate would like to extend its gratitude to the debaters, and to Jenny Estrella at the Bristol Courthouse and the staff at the Memorial Union at URI for allowing us to utilize their respective spaces for these informative debates.
Save the Date for Future 50th Anniversary Events!
The Early History of the Rhode Island ACLU
Tuesday, May 19th at 7 PM, at Three Sisters, 1074 Hope Street, Providence
The Affiliate will be hosting an informative event on the East Side of Providence with longtime ACLU activist Richard Zacks and the Affiliate’s first executive secretary, Natalie Robinson. They and others will reflect back on the Affiliate’s history and triumphs. Listen to and share stories about the Affiliate’s early years!
Folk Concert: “An Evening of Dangerous Songs”
Thursday, June 25, 2009 at 7 PM, at the First Unitarian Church of Providence, 1 Benevolent Street
Well-known New England singer-songwriter Cheryl Wheeler and Grammy-winner Bill Harley will be performing “An Evening of Dangerous Songs.” Tickets are $25 at the door. Prepare for a great evening of fun and subversive singing.
50th Anniversary Annual Dinner
Friday, November 6, 2009 at the Westin Hotel, downtown Providence
This year’s Annual Dinner promises to be a night to remember. Stay tuned for more details on the evening as the date gets closer, but mark the date on your calendar now!
Questions? Call the office at 831-7171 or email us at RIACLU50th@yahoo.com.
Saturday, June 20. Annual PrideFest in downtown Providence
The event, supporting LGBT rights, drew over 25,000 people last year. This year’s event will be held at Station Park in Providence. Be sure to come by and visit the RI ACLU’s table at the event. Interested in volunteering your time at the RI ACLU’s table? Contact the office for more information.
May is Racial Profiling Awareness Month
A coalition of organizations working to stop racial profiling in the state has declared the month of May “Racial Profiling Awareness Month.” If you or somebody you know has been a victim of racial profiling by the police, let us know. The information will be used to promote statewide remedies to address this persistent and invidious problem.