November/December 2009 Newsletter
Volume: XV, Issue Number: 5
50th Anniversary Dinner A Celebration To Remember
When Milton Stanzler founded the RI ACLU in 1959 he couldn’t have imagined the tremendous impact that the Affiliate would have on the state of Rhode Island. Five decades later, over 200 people gathered on November 6th to honor the realization of Milt’s vision at the Affiliate’s 50th Anniversary Dinner Celebration.
Several special touches made this year’s dinner a festive affair. Guests at the VIP cocktail reception enjoyed the music of a string quartet as they mingled with National ACLU president Susan Herman and the cooperating attorneys being honored at the dinner. Outside the banquet hall, the sounds of classical piano filled the air as ACLU members caught up with old friends and reminisced about the Affiliate’s storied history.
After presiding over a champagne toast to the Affiliate’s 50th anniversary, RI ACLU Board Chair Jennifer Azevedo gave the annual review, and then introduced the short documentary film “The Rhode Island ACLU: 50 Years of Eternal Vigilance.” Filmmakers Diane Dolphin and Sally Kingsbury had gathered memories from RI ACLU cooperating attorneys, past plaintiffs and other allies to tell the story of six landmark Affiliate cases and issues, from the defense of an anti-war protester in 1969 to the passage of precedent-setting anti-racial profiling legislation in 2000.
Volunteer attorney Lise Iwon introduced the recipients of the RI ACLU's annual “Raymond J. Pettine Civil Libertarian of the Year” award. In celebration of our five decades of legal victories, the honor was bestowed on the Affiliate’s entire corps of cooperating attorneys. Ten attorneys, two from each decade, served as representatives in accepting the award. Susan Herman finished up the evening with a keynote speech on “Civil Liberties in the Age of Obama.”
National and local officials came out to congratulate the Affiliate on its 50 successful years of defending civil liberties in Rhode Island. Among those in attendance were U.S. Senator Sheldon Whitehouse, Superior Court Presiding Justice Alice Gibney, State Senator Charles Levesque, State Representatives Edith Ajello, Rod Driver and David Segal, Providence Mayor David Cicilline, and Providence City Councilor Seth Yurdin.
All in all, the dinner was a fabulous way to celebrate the past, mark a milestone, and kick off the Affiliate’s next half-century.
From the Desk of the Executive Director
2009 has been an extraordinary year for the Rhode Island ACLU. In addition to achieving a number of important court victories, we have celebrated our 50th Anniversary virtually non-stop with a series of events and activities, culminating in a very successful annual dinner. Now, as 2010 approaches, we are looking ahead to ensure we can enter our second half-century stronger than ever.
The coming year is already shaping up to be a busy one. There are many planned lawsuits in the works, on top of the 19 new cases we’ve gotten involved in this year alone. The enclosed 2009 legal docket should give you a good idea how busy we have been.
Of course, such an active program costs money. To continue to help us fund this important work, please consider making a generous year-end contribution. Donations to the ACLU Foundation of Rhode Island are tax-deductible and will help support both our full docket of litigation and our many educational activities.
With your help, we can continue to make a significant impact and serve as a critical resource for victims of civil rights abuses.
~ Steven Brown
RI ACLU Applauds Decision Not to Implement Secret Trials
Calling it “a major victory for transparency in our judicial system,” the Rhode Island ACLU applauded comments from R.I. Supreme Court Chief Justice Paul Suttell, as reported in the Providence Journal, that the Court had no immediate plans to implement a controversial 25-year-old state law allowing retired judges to preside over secret civil cases for compensation. At a public hearing held this past January, the RI ACLU had raised numerous concerns about the proposal, which appeared headed for quick approval at the time.
That hearing dealt with proposed court rules to implement the “Retired Justice Trial Act,” a two-sentence statute first enacted in 1984 that allows litigants to hire retired judges to hear publicly-filed court cases in secret. It is unclear whether the statute has ever been used since its adoption a quarter of a century ago. The hearing was prompted by a request from retired Family Court Judge Howard Lipsey, who expressed an interest in handling private cases.
In written testimony, the RI ACLU called the privatization of the judicial system “extremely disturbing on many levels. Among the most troubling are its creation of a two-tiered system of justice that allows for swift resolution of cases only for those wealthy enough to afford it, and its direct impact on the fundamental right of the public to monitor court proceedings.”
The statute establishes a judicial process that is, by definition, secret. The RI ACLU emphasized that people who wish to conduct legal business in private already have the means to do so, through private arbitration and mediation proceedings. The “retired justice program,” however, has all the earmarks of regular court cases conducted under the auspices of the judicial branch, with one glaring difference – the proceedings are kept hidden from the public. “Closed-door justice is, and should be, anathema to our judicial system, which has long been guided by fundamental principles of transparency,” said the RI ACLU. In theory, the ACLU’s testimony noted, a judge presiding over a “private” court case could issue a ruling on the constitutionality of a state law.
The R.I. Association for Justice and the open government group ACCESS/RI joined with the ACLU in criticizing the proposed rules, the fate of which had been in limbo until Justice Suttell’s recent remarks. He indicated that if the court were to reconsider starting the program, another public hearing would be held.
ACLU Election Information
The ACLU Nominating Committee has nominated the following officers to serve on the Affiliate Board: Anne Mulready – Chair; H. Jefferson Melish – Vice-Chair; Christine Lopes – Treasurer; and Jenn Steinfeld – Secretary. Those nominated to run for regular Board terms include Carl Krueger, Carolyn Mannis and Christopher Corbett.
Please note that you will receive a ballot only if you are a current ACLU member; contributions to benefit events or special donations do not renew your membership. Nominations to the Board may be made by petition of any ten members, provided there is attached to the petition a signed statement expressing the nominee’s willingness to serve if elected. A biographical sketch, no greater than 100 words, should also be submitted. Such a petition must be received at the ACLU office no later than December 28th.
ACLU Sues Town for Unlawful Release of Driver’s License Information
The RI ACLU has filed a federal lawsuit against the Town of Johnston and police chief Richard Tamburini for illegally releasing the private drivers’ license information of a firefighter to a Town Councilman as part of a public dispute between the Council and the Fire Department. The lawsuit, filed by RI ACLU volunteer attorney James Kelleher, is on behalf of town resident Edward Simone, who was the victim of the disclosure.
In April, the Johnston Sunrise, a local newspaper, published a letter to the editor from Town Council member Ernest Pitochelli, who leveled an array of criticisms against the Fire Department. In the letter, Pitochelli described seeing a car displaying what he deemed to be an offensive bumper sticker relating to the ongoing Fire Department/Town Council dispute. (The bumper sticker allegedly read: “Firefighters here to save your ass, not kiss it.”) Pitochelli’s letter to the editor cited the car’s license plate number, and then proceeded to both name Mr. Simone as its owner and further identify him as an employee of the Fire Department who was out on work-related disability.
A day after the letter was published, Simone’s car windshield was smashed in his driveway. Surmising that Pitochelli had unlawfully obtained his driver’s information from the local police, Simone complained to the state police, who confirmed his suspicions.
The RI ACLU’s lawsuit on Simone’s behalf argues that the town and police chief violated the Drivers Privacy Protection Act, a federal law specifically enacted to prohibit the disclosure of motor vehicle record information for unauthorized purposes. The lawsuit also argues that the illegal release of Simone’s motor vehicle information has “caused a chilling effect” on the free speech rights of residents.
RI ACLU attorney Kelleher said: “The issues raised by this case go far beyond political sparring in Johnston. Everyone should be concerned when powers vested in our police can be so easily misused.” The ACLU noted a publicized incident in 2006 when Woonsocket police ran the license plates of cars parked outside a restaurant where a political event for a mayoral candidate was taking place.
Court Strikes Down Law Disqualifying Central Falls Mayoral Candidate
In response to an emergency R.I. ACLU lawsuit, U.S. District Judge William Smith struck down a Central Falls charter provision that almost kept Mayoral candidate Hipolito Fontes off the ballot. The judge agreed that the local Board of Canvassers acted unconstitutionally in disqualifying him for allegedly failing to submit sufficient nomination signatures.
Fontes needed 200 valid signatures to qualify for the ballot, and he seemingly had turned in more than enough. However, in contrast to state law, Central Falls allows voters to sign only one nomination paper per office. In the case of multiple signatures, the Board of Canvassers accepts the one on the papers that were first filed with the Board.
As a result, the Board of Canvassers disqualified more than 60 of Fontes’s signatures because they also appeared on current Mayor Charles Moreau’s signature petitions, and Moreau was deemed to have submitted his papers first – two minutes ahead of Fontes.
The lawsuit, filed by RI ACLU volunteer attorneys Armando Batastini and Timothy Baldwin, noted that candidates “have no way of knowing whether signatures on their nomination papers also appear on the nomination papers of other candidates for the same office,” and that there is no legitimate governmental interest in distinguishing between first-filed nomination papers and later-filed nomination papers.
Judge Smith agreed, stating: “The additional and differing rules imposed by the City, which are at odds with those of the State of Rhode Island, serve to generate confusion, not eliminate it, and to foster chaos, not reduce it.”
The judge also noted that, due to the “first filed” rule, a “voter’s second signature … may secure that voter’s nomination endorsement to the exclusion of his or her first choice,” and “a candidate who wishes to exclude potential rivals can effectively do so by collecting vastly more signatures than needed to get on the ballot.”
Smith noted that an “absurdity” results where “candidates must engage in a race to the Board of Canvassers office in hopes of reaching the time-machine stamp first. And of course, if City Hall is controlled by an incumbent mayor who is running for re-election and may literally have the keys to City Hall, he could have a critical head start in the race.”
With the duplicate signatures now allowed, Fontes qualified for ballot placement and was restored to the race. However, the incumbent Mayor handily defeated Fontes. Even though Fontes ended up losing the election, the City has appealed Judge Smith’s ruling.
ACLU Files Discrimination Case Against CVS
The Rhode Island ACLU has filed a discrimination complaint against CVS, contesting a requirement that customer service (and other) job applicants answer questions that the ACLU claims are unlawful. The complaint, filed with the R.I. Commission for Human Rights, argues that some of the inquiries violate laws that generally bar employers from directly or indirectly eliciting any information that pertain to a job applicant’s mental or physical disabilities.
CVS utilizes an online job application process for many of its positions. One component of that process requires applicants to complete statements about “attitudes and experiences.” Specifically, applicants must indicate whether they “strongly disagree, disagree, agree, or strongly agree” with about 100 “attitudinal” statements, including:
- "You change from happy to sad without any reason."
- “You get angry more often than nervous."
- “Your moods are steady from day to day.”
- “There’s no use having close friends; they always let you down.”
Although employers may legally ask questions designed to help determine an applicant’s personality or aptitude for a job, the complaint, filed by RI ACLU cooperating attorney Christopher Corbett, argues that reliance on answers to these questions measures more than general personality traits, and could have an impact on individuals with such illnesses as depression, ADHD, social anxiety, and other affective disorders. The complaint asks the Commission to halt the company’s use of the questionnaire on applicants.
2009 Legislative Wrap-Up
The 2009 Legislative Session finally came to a much-anticipated close early in the morning of October 29th. With few surprises in store, thanks – for the most part – to well-adhered-to, previously posted calendars, the final days were less chaotic than expected. Nonetheless, there are civil liberties gains and losses to be reported.
Most notably, the General Assembly passed an indoor prostitution bill that includes not only jail time for first-time offenders, but also a forfeiture provision that will deprive women of any monies or possessions derived from income earned as a prostitute, making it all that much harder for them to avoid recidivism. (S 596/H 5044)
A human trafficking bill also passed with problematic, overly broad language. As defined, a now-unlawful “sexually-explicit performance” of a minor could have severe First Amendment implications for the art community. Under the new law, promoters of plays, music videos, performance art, etc. could all be subject to severe penalties merely if the performance “appeals to the prurient interests of patrons or viewers,” even though it need not be sexually explicit in any way. The ACLU is considering challenging the constitutionality of this law. (S 605/H 5661)
On a more positive note, though it will likely be short-lived, the Assembly sent a package of sex offender legislation back to committee, killing the bills for the year. The bills included such “tough on crime” measures as making it a felony for offenders to ever enter schools, parks or similar locations; requiring them to wear a GPS monitoring device while challenging their administratively-designated level of dangerousness; and requiring landlords who had ever been convicted of sex offenses to report their sex offender status to tenants. (S 930/H 6242, H 5749, H 5743)
Also on the plus side, the Senate steered clear of two perennial anti-civil liberties bills routinely approved by the House: one that would mandate private business use of the controversial E-Verify program (S 210/H 5143), the other a State Police Administrative Subpoena bill (H 6210), a measure that would allow law enforcement to secretly obtain – without a warrant – subscriber information from Internet service providers.
Unfortunately, the Governor’s mighty veto pen struck again in incomprehensible ways. In addition to his veto of the Civil Rights Act (S 162/H 5135) announced in our Summer newsletter, the ACLU will be urging the General Assembly to override two other important bills when legislators return in January:
- Despite three years of amendments added to satisfy concerns of various parties, victim of a veto once again was the Radio Frequency Identification bill, an important privacy measure that bars the government from requiring students to wear these Orwellian tracking devices and also prohibits the use of E-ZPass RFID information for anything other than toll payment. (S 211/H 6059)
- Most shocking was the Governor’s veto of a bill that would simply allow domestic partners to make funeral arrangements if one partner were to die. (S 195/H 5294)
If you are interested in helping to override these vetoes, contact the RI ACLU office for more details. Stay tuned for our 2010 Legislative Preview in our next issue of Rhode Island Civil Liberties.
A Look Back at Our 50th Anniversary
A Special Thank You to Our Silver & Bronze 50th Anniversary Sponsors
ACLU Sues Pawtucket Over Special Treatment Given to Parochial Schools
The Rhode Island ACLU filed a federal lawsuit against the City of Pawtucket, charging that the Parks and Recreation Division has routinely given preferential treatment to parochial schools over public schools in granting permits for the use of city athletics fields.
The suit, filed on behalf of seven local parents and their children, seeks a court order declaring unconstitutional both the City’s preferential treatment to religious schools and its lack of any objective standards for granting field use permits.
A number of parents and public school officials had complained to the City for several years about this problem, all to no avail. For example, O’Brien Field, a public field that was refurbished with tax money in 2001, has since been reserved almost exclusively for use by Saint Raphael Academy during certain sports seasons, “despite repeated requests by various public school officials for use of [the field] for public school interscholastic sports.”
The suit similarly alleges that two other fields have often been reserved for the teams of other private sectarian schools at the expense of public junior high school teams.
The lawsuit notes that the Office of Parks and Recreation has no written policies governing the issuance of permits for the city owned fields, which is left to the total discretion of the parks Superintendent. “The long-standing lack of written policies,” claims the suit, “has enabled and continues to enable [the City] to provide preferential field allocation to religious schools.” As a result, “public high school athletic programs cannot be fully accommodated because they have been assigned insufficient field space for practice and for games.”
Lead plaintiff Maggi Rogers, who first complained to city officials about the problem more than five years ago, said: “We are frustrated by years of stonewalling by city officials, but confident that the Constitution will prevail. It is discouraging to teach our public school students about the Bill of Rights in the classroom and then see them look out those same classroom windows to see it violated on a daily basis.”
Favorable Settlement Reached in Suit over Food Stamp Delays
The Rhode Island ACLU has favorably settled a federal lawsuit filed in July against the state Department of Human Services (DHS), alleging that the state’s failure to timely process food stamp applications was resulting in the denial of “desperately needed assistance to help [applicants] feed their families,” and forcing them to “suffer hunger as a result.”
The class-action lawsuit, filed by RI ACLU volunteer attorney Lynette Labinger and attorneys for the National Center for Law and Economic Justice, had sought an injunction requiring the state to process food stamp applications within the time frames established by federal law.
Under a detailed 11-page settlement order approved by U.S. District Judge William Smith, the state has agreed to a series of steps to ensure its compliance with federal law requirements. The settlement requires the state to comply with all federal timelines for screening and processing food stamp applications, including those eligible for expedited service. The settlement order also establishes a process for the plaintiffs’ attorneys to bring to the attention of DHS for prompt resolution any instances brought to their attention where the timelines appear to have been missed. In order to further ensure compliance, the settlement requires DHS to provide to ACLU and NCLEJ attorneys through the end of next year a monthly report containing detailed statistics on the food stamp applications received by DHS and the time it took the agency to process them. Finally, the settlement permits the ACLU to seek attorneys’ fees for its work on the case.
Under federal law, states participating in the food stamp program are required to process food stamp applications within thirty days of the date of application, and to provide expedited food stamps to eligible households within seven days. In June 2009, more than 107,000 Rhode Islanders participated in the program, and in May of this year alone, more than 5,000 applications were submitted for food stamps. Yet recent statistics from the federal government’s Food and Nutrition Service indicated that almost one-fifth of Rhode Island’s food stamp applications were not processed in a timely manner.
In response to the filed settlement agreement, RI ACLU volunteer attorney Labinger said: “We believe that this order will protect vulnerable families from the delays and inaction that literally left some children going to bed hungry at night.”
Scope of South Kingstown’s Student Athlete Alcohol Policy Under Fire
Banning student athletes not only from drinking, but also from even being “in the presence of” alcohol at any time of the year, a proposed policy in South Kingstown would create violations for, among many other absurd scenarios, a student attending a sibling’s wedding anniversary where wine was served. Furthermore, the ACLU argued that such a policy could be more dangerous for students. Consider the situation of a teenager who is asked by a fellow student for assistance or a ride after drinking alcohol. Should they say no and force the friend to get behind the wheel? In a letter sent to school committee members, the ACLU has asked that the proposed policy be significantly amended.
ACLU Calls on Pawtucket to Allow Sexuality Education Center to Open
The Center for Sexual Pleasure and Health (CSPH) intends to provide sexuality education to adults and consultation services to institutions of higher learning – if it is ever allowed to open. The Pawtucket Zoning Board claims the chosen location is not zoned for educational purposes and so the doors remain shut. A letter from the ACLU pointed out that other businesses within the same building have educational programs, and also referred to comments from city officials who were clearly concerned with the sexual, not educational, aspect of the business. The ACLU urged the Mayor to “permit the Center to open,” but an administrative appeal of the zoning decision was denied.
ACLU Questions Surgery Videotape Requirement Imposed by Health Department
After five wrong-site surgeries in three years at Rhode Island Hospital, the Department of Health has issued an order requiring the Hospital to video and audiotape surgeries. Citing privacy concerns over the intrusive nature of such recordings, as well as the lack of procedures for storage, destruction and access to the tapes, the ACLU wrote to the Department to make known its concerns. A response from DOH explained that the recordings were meant solely for educational purposes, not to monitor and prevent errors. The ACLU will be monitoring implementation of the order.
TASER International Updates Best Practices Policy
The ACLU wrote to all police departments in the state, pointing out that TASER International is now recommending that officers try to avoid shooting suspects in the chest with Tasers in order to prevent the “extremely low risk” of an “adverse cardiac event.” This admission comes after multiple deaths nationwide, including that of a Woonsocket resident in 2006, after police TASER use. Though such an acknowledgment is too little, too late, the RI ACLU urged law enforcement agencies to completely reexamine their usage policies for these potentially deadly weapons.
Proposed State Police Regulations Infringe Upon Officers’ First Amendment Rights
The ACLU has testified against recently introduced regulations governing R.I. State and Capitol Police that would bar officers from associating with people “who have a reputation in the community for present or past involvement in criminal behavior,” making no exception even if the person is a family member. The proposed rules would also limit officers’ free speech rights in numerous ways, barring them from publicly commenting on agency policy or criticizing the department. The ACLU urged revision of these and other questionable provisions before adoption.
Agency Rules That Complaint Against N. Kingstown Shipbuilder May Proceed
Responding to a complaint filed by the RI ACLU in January, the R.I. Commission for Human Rights has found “probable cause” to believe that Senesco Marine, a large ship construction and repair facility in North Kingstown, has violated state anti-discrimination laws designed to prevent job bias against individuals with disabilities.
When ACLU volunteer attorney Michael Feldhuhn filed the complaint, Senesco’s employment application form required all job applicants to attest that they were “physically and mentally capable of performing the essential job duties of the position” and that they had “no need for changes or adjustments in the essential duties of the job in order to meet the demands of the position.”
However, the ACLU complaint noted: “By well-established law, an employer must provide an employee with disabilities ‘reasonable accommodations’ that would allow the employee to perform the essential functions of the job.”
More than two months after the ACLU first raised concerns with the company about the form, and about a week after the complaint was filed, Senesco revised the application. However, the new application form continues to improperly suggest that Senesco need not accommodate the disabilities of employees with “job-related” medical conditions.
As a result of its “probable cause” finding, the Human Rights Commission will now continue to investigate the case. RI ACLU attorney Feldhuhn said: “I'm very pleased with the Commission's finding, but disappointed by Senesco's continued intransigence."
The Back Page
Make a Year-End Donation to the ACLU Foundation of Rhode Island
These are tough economic times, but as the end of the year approaches, please consider making a special, tax-deductible contribution to the ACLU Foundation of RI. The 2009 docket included in this newsletter will remind you of the broad scope of our program and just how busy we have been — and why your support continues to be critical.
Please help us meet the growing need for our assistance. Send your checks to: ACLU Foundation of Rhode Island 128 Dorrance Street, Suite 220 -- Providence, RI 02903
If you’re looking for a way to give year-round, consider participating in a payroll deduction plan. If you’re a state employee, you can contribute through the State Employees Charity Appeal (SECA) Campaign. Our designated SECA number is 3980. If you’re a private employee, you can give via the United Way or the Fund for Community Progress by writing “ACLU Foundation of R.I.” in the space provided on either pledge form. Thank you!
Tune in to the ACLU’s Monthly Cable Access Show
During the month of January, the ACLU’s cable access show “Rights of a Free People” will feature the keynote speech given by National ACLU President Susan Herman at our 50th Anniversary Dinner Celebration. Her speech on “Civil Liberties in the Age of Obama” told of the ACLU’s hard work fighting against illegal government spying, indefinite detention and government sponsored torture. She also focused on the need for continued vigilance despite the change in administration.
- Channel 13: Tuesdays 10:00pm & Fridays 3:30 pm (Channel 32 on Verizon FIOS)
- Channel 18: (In Providence & N. Providence) Wednesdays 9:00pm (Channel 38 on Verizon FIOS)