September/October 2009 Newsletter
Volume: XV, Issue Number: 4
Open Meetings Lawsuit Filed Against Barrington School Committee Over Breathalyzer Test Discussion
In a case raising critical issues about the public’s right to know, The Barrington Times and the Rhode Island ACLU have filed an Open Meetings Act (OMA) lawsuit against the Barrington School Committee for unlawfully meeting in closed session in February to discuss the merits of instituting a mandatory breathalyzer policy for all students attending school dances.
The school committee relied on the OMA’s “litigation” exemption to meet in private, but the lawsuit, filed by RI ACLU cooperating attorneys Howard Merten and Keith Fayan, notes that at the time of the executive session “there was no litigation pending or threatened” and “there was not even a specific policy in place that could have been challenged through litigation.”
The breathalyzer issue has been a subject of great debate in the town and, in fact, the closed session took place on the same night the school committee heard public comment on the idea. However, nothing on the committee’s agenda indicated that a possible new breathalyzer policy would also be a matter of private discussion that night. Citing language from the OMA itself, the ACLU lawsuit argues that the subject matter of the executive session was “the type of public business that must be conducted in an open and public manner so that citizens are aware of … the deliberations that go into the making of public policy.”
A week after the closed session, Josh Bickford, editor of the Barrington Times, filed a complaint with the Attorney General. However, in May, the Attorney General’s office ruled that it found no violation of the law, accepting the school committee’s contention that a letter the ACLU had sent in December, which raised policy concerns about adopting a mandatory breathalyzer policy, could be deemed a “threat of litigation” authorizing a secret discussion. The lawsuit argues that “if the Committee’s rationale for convening in executive session is validated, then the exception has swallowed the rule. Any opposition to a proposed public policy could provide the basis for secret debate by elected officials relying on phantom and wholly hypothetical ‘litigation.’”
The lawsuit, filed in R.I. Superior Court, seeks a court order declaring the school committee’s actions a violation of the OMA and an order further directing the school committee to unseal the executive session minutes from that meeting. The suit also seeks an award of attorneys’ fees and imposition of a fine against the school committee for violating the law.
Scott Pickering, managing editor of East Bay Newspapers (publisher of the Barrington Times), said: “If the school committee is allowed to get away with this, then the principles of open government are threatened. They justified their closed-door meeting by saying the ACLU has a history of filing lawsuits, therefore there was a threat of litigation — even though all the ACLU did was mail a letter that expressed an opinion. If that's the case, what’s to stop any public body from going behind closed doors whenever the ACLU expresses an opinion; or whenever a private citizen who’s ever filed a lawsuit expresses an opinion; or whenever a private citizen who happens to be an attorney expresses an opinion? It’s really disturbing.”
Added RI ACLU volunteer attorney Howard Merten: “The Barrington School Committee met in executive session when it had only just started weighing the pros and cons of possibly adopting a new and controversial policy. The value of public input is great, and the need for confidentiality is non-existent, in these early stages of policy debate. Hopefully, this suit will help clarify that executive sessions should be reserved for actual or imminent litigation and are not an appropriate response to public comment on controversial issues.”
From the Desk of the Executive Director
Change is in the air at the RI ACLU – and not just the Fall weather. In the past year our website has undergone a complete redesign, and with this issue of our newsletter we’re debuting a slightly new format as well, prepared by the affiliate’s staff. If you have any thoughts about it, I hope you’ll let us know!
Our annual dinner – an autumn staple – is getting a facelift, too, in honor of our 50th Anniversary. Though we usually pick just one person to recognize with the “Raymond J. Pettine Civil Libertarian of the Year Award,” we are using history as our guide and honoring the Affiliate’s entire corps of cooperating attorneys.
There have been so many over the years that we have asked two attorneys from each of the RI ACLU’s five decades of service to receive the award on behalf of the entire group.
More information about the 50th Anniversary Dinner Celebration (and other 50th Anniversary happenings) can be found later in this issue. You’ll find a few new surprises at the dinner this time around, so we hope you’ll join us to see what’s in store!
~ Steven Brown
ACLU Settles West Warwick Political Sign Challenge
A favorable settlement has been reached in a federal lawsuit filed by the ACLU last October against the Town of West Warwick, challenging on free speech grounds the enforcement of an ordinance that significantly limited the posting of political signs. The suit was filed by ACLU volunteer attorney Richard Sinapi on behalf of local resident Thomas K. Jones, who at the time was a state legislative candidate and an outspoken critic of plans to develop a water park in the town.
Under a consent judgment approved by U.S. District Judge Mary Lisi, the town is barred from enforcing its sign ordinance so as to prohibit the erection of political signs, and further barred from subjecting political signs to size, duration or other restrictions more stringent than those imposed for non-political signs. The Town also has agreed to pay $30,000 in damages and attorneys’ fees.
Last August, Jones and his supporters began displaying political signs on their property, some promoting his candidacy and others criticizing the proposed construction of the water park. A day before the September primary election, Acting Building Official Frank Venezia hand-delivered notices to Jones and the homeowners advising them that the signs – which were 32 square feet – were too large and violated the Town’s zoning ordinance. They were told to remove the signs within 24 hours or else face financial penalties. The RI ACLU immediately wrote a letter to Venezia, arguing that the ordinance was clearly unconstitutional. The building official’s response was to send out another warning notice to violators. Rather than risk any fines, Jones had all the signs removed.
The suit raised a number of constitutional arguments against the ordinance, and further claimed that it had been enforced against Jones in a discriminatory manner, since dozens of political signs supporting other candidates had not been cited at all. The suit also noted that the ordinance allowed non-political signs to be larger, and be posted longer, than political signs like those Jones had erected. Shortly after the suit was filed, a temporary restraining order was entered, allowing Jones and his supporters to immediately repost the political signs on their property.
ACLU volunteer attorney Sinapi said: “This settlement ensures that town residents will be able to freely exercise their First Amendment right to express their views through the use of political signs without improper government interference. This is an important victory for those who care about freedom of speech.”
Family Court Order Restricting Free Speech Rights on the Internet Is Dismissed
As the result of ACLU intervention, Barrington resident Michelle Langlois was freed from a court order that had temporarily barred her from using the Internet to speak about a pending court case.
In advance of a scheduled Family Court hearing on an ACLU motion to overturn the order, which had banned Langlois from posting on the Internet any details about a pending Family Court custody proceeding in which her brother is involved, the petitioner in the case agreed to voluntarily dismiss the complaint prompting the order. In response, Judge Michael Forte, who had initially issued the Internet “gag order” against Langlois, entered an order of dismissal, effectively rescinding the Internet ban. Thus, Ms. Langlois was able to resume posting public information about the case on her Facebook page and on the Internet without facing contempt charges for violating a court order.
Ms. Langlois’ brother is involved in a child custody case with his ex-wife. After Ms. Langlois posted information about the case on her Facebook page, the ex-wife filed a “domestic abuse” petition against her, claiming that Ms. Langlois’ postings constituted “harassment.” The ex-wife’s petition sought a court order barring Ms. Langlois from posting any information about the case on the Internet. In late June, Family Court Judge Forte issued such an order. After being contacted by Langlois, the ACLU agreed to provide her representation to challenge the constitutionality of the Internet restriction, and filed a motion seeking to have the order rescinded as a violation of her First Amendment rights to freedom of speech.
A hearing on that motion became moot when the ex- wife voluntarily dismissed the case. R.I. ACLU volunteer attorney H. Jefferson Melish, who was representing Langlois, said: “I am extremely pleased that the other side in this case voluntarily agreed to have this order rescinded. Ms. Langlois’ free speech rights have been vindicated, as have the rights of members of the public generally to use the Internet to speak their mind on issues of importance.” At the time of the ACLU’s intervention in the case, Michelle Langlois had said: “I do not believe the truth was coming out in Family Court. I was simply using the Internet to publicize my brother’s plight.”
Federal Government Accepts State Police Request to Enforce Immigration Laws; Evidence of Racial Profiling Ignored
Despite almost two decades’ worth of data showing significant racial disparities in the enforcement of traffic laws by the Rhode Island State Police (RISP), Immigration and Customs Enforcement (ICE) officials have given RISP special legal authority to enforce federal immigration law. In approving RISP’s request, which had been made pursuant to the “immigration” executive order that Governor Carcieri issued last year, ICE ignored written objections submitted by the ACLU and seven other organizations.
An eight-page letter to ICE officials signed by, among others, the RI ACLU, the Urban League of RI, the International Institute of RI, and Direct Action for Rights and Equality, traced a lengthy history of alleged racial profiling by the State Police, and argued that giving RISP the power to enforce federal immigration law would only exacerbate this critical problem. Among the data cited by the groups:
In 1990, when RISP first instituted a drug interdiction program on the state’s highways, of the first 28 arrests made by the drug interdiction squad, 22 of the arrestees – over 78% – were Hispanic.
In 1999, when the State Police voluntarily collected traffic stops data for six months, the data showed that more than 26% of the traffic stops made were of non-whites, even though non-whites made up only about 8% of the state’s population at the time.
A two-year study of traffic stops of RISP conducted by Northeastern University in 2001-2002 found that State Police were not only more likely to stop non-white drivers, but were also almost twice as likely to search them once they had been stopped.
A follow-up one-year study of traffic stop data conducted by Northeastern University in 2004-2005 again found that blacks and Hispanics continued to be disproportionately stopped and searched by State Police, even though they were less likely than whites to be found with contraband once searched.
A 2006 study of traffic stops and searches by RISP, analyzed by consultants at the University of Rhode Island, found that “a driver’s race and ethnicity clearly influences the reason for which he or she is stopped,” and that there was “substantial evidence of racial and ethnic disparity in discretionary searches by the Rhode Island State Police.”
Despite this consistent and rather overwhelming data over a lengthy period of time, State Police officials have repeatedly rejected the findings made from the data, and continue to deny that any problem of racial profiling exists. Even an advisory panel set up by the Governor last year found that “actions taken by law enforcement agencies after the issuance of the [immigration executive order], have served to create some apprehension, and have also significantly reinforced an environment charged with fear.”
Nonetheless, ICE formally approved the RISP request. In response, the Affiliate will be monitoring implementation of this new authority.
50th Anniversary Activities
Unitarian Universalist Congregation of South County to Screen The Freedom Files
In conjunction with the Affiliate, the Unitarian Universalist Congregation of South County will be celebrating the 50th Anniversary of the Rhode Island ACLU by showing three episodes from The Freedom Files, the National ACLU’s television series. These half hour documentaries by filmmaker and political activist Robert Greenwald draw on the power of true stories to highlight important civil liberties issues. The screenings will be followed by a discussion, and all will be held from 7:00pm to 8:30pm at the Lily Pads Professional Center, 27 North Road, Peace Dale, RI. These screenings are free and open to the public. Participants are asked to bring a non-perishable food item for the Jonnycake Center.
Wednesday, Oct. 7th “Religious Freedom”
Wednesday, Oct. 14th “The Death Penalty”
Wednesday, Oct. 28th “Freedom to Marry”
Free to Believe: Defending Religious Freedom in Rhode Island
The RI ACLU hosted a lively conversation in September, examining religious freedom from historical, philosophical and legal perspectives. Dr. Stephen Marini, Professor of Religion at Wellesley College, moderated the event with panelists Reverend Janet-Cooper Nelson, Chaplain at Brown University, and RI ACLU volunteer attorney John W. Dineen. Roger Williams (portrayed by Bill Hutchinson) and Anne Hutchinson (portrayed by Marilyn Meardon) dropped in from the 17th century to share what religious freedom meant to them. The event was held at the church called by Roger Williams, the First Baptist Church in America, a standing reminder of Rhode Island’s historic role in the development of religious liberty in the United States. Audience members brought up topics as diverse as the funding of public and private schools, tax benefits for churches, and what constitutes government coercion in religious matters.
“Free to Believe” was made possible through major funding support from the Rhode Island Council for the Humanities, an independent state Affiliate of the National Endowment for the Humanities.
Banned Books Week
September 26th to October 3rd was Banned Books Week, a week that celebrates the freedom to learn and express one’s opinion without censorship. The RI ACLU commemorated the week with a poster sent to libraries across Rhode Island for use in public education about First Amendment rights. You might be shocked at the literature that has come under censorship: The Sun Also Rises, The Kite Runner, and Gone with the Wind have all been challenged or banned at some point. Visit our website for more information.
Legislative Session Still in Limbo
No, you haven’t missed it. Because the 2009 Legislative Session has yet to fully come to a close, we were not able to schedule our popular Legislative Wrap-Up & Dessert Evening this summer. The current speculative return dates for the General Assembly are October 28 & 29, but given the fact that those dates have changed four times since the June recess, we’re not certain these will stick either. Stay tuned for more information.
Racial Profiling Data Collection Continues
The ACLU – along with organizations such as the Urban League of RI, International Institute of RI and the RI Coalition Against Domestic Violence – is still collecting stories of incidents of racial profiling in Rhode Island. If you or someone you know have been a victim of racial profiling, call these toll free numbers: 1-877-231-7171 (English) or 1-877-527-3330 (Spanish). A short survey may also be accessed at http://tinyurl.com/RPMay2009. Further information is available on our website: http://www.riaclu.org.
Affiliate Participates in Labor & Ethnic Festival
The Affiliate participated in the Labor and Ethnic Heritage Festival at Slater Mill in Pawtucket at the end of August. There was a lot of interest in our table, and visitors took many of our brochures on “Your Rights and the Police” and “Your Right to Privacy in the Workplace.” A special thanks to Maggi Rogers for her help with the event.
The ACLU notes with sorrow the passing last month of Barrington resident Kenneth Beaver, a long-time ACLU supporter . The ACLU extends its condolences to the family and friends of Mr. Beaver, and thanks the family for choosing the RI ACLU to be one of the recipients of donations in his memory.
ACLU Petitions Court For Release of Richard Hatch, Jailed for Speaking to the Media
The American Civil Liberties Union of Massachusetts has filed a habeas corpus petition asking a federal court to release Rhode Island resident Richard Hatch from jail in Barnstable County. Hatch was arrested and is being held in jail for talking to members of the media about his tax evasion case without getting formal approval from the federal Bureau of Prisons. The court petition follows unsuccessful efforts by the Rhode Island ACLU to have the disciplinary charges against Hatch dismissed. Hatch gained notoriety for having won the first season of the television show “Survivor,” and for the legal battle regarding his taxes that ensued.
While serving his sentence under home confinement in Rhode Island, Hatch conducted three television interviews in a row with NBC programmers, including one with the Today Show, during which he stated his opinion that he was prosecuted, in part, because of his sexual orientation and his TV notoriety. The day after the interview, the prosecutor from his case called in to a radio talk show and called Hatch “delusional” and his theories “ludicrous.” In response, Hatch called in to the radio show to defend himself against the prosecutor's comments.
The day after the radio show aired, the Bureau of Prisons had Hatch taken into custody and placed him in solitary confinement at Barnstable County Jail, as punishment for what they claimed was “unauthorized contact with the public.”
“The First Amendment protects people's right to publicly criticize the government — even when they are incarcerated or serving a sentence. The Supreme Court has held that security needs inside a prison may justify limitations on media access, but those security concerns did not apply to Mr. Hatch while at his home,” said Laura Rótolo, a staff attorney with the ACLU of Massachusetts.
“It is important to understand the ramifications of the BOP’s action. If Mr. Hatch can be punished merely for speaking out about his case, he could just as easily be punished and jailed merely for speaking out against the Bureau of Prisons’ policies or practices. Such a limit on public discourse is intolerable in a society that values and protects public discourse on important issues,” said Steven Brown, executive director of the Rhode Island ACLU.
The habeas corpus petition argues that the government had no right to re-imprison Mr. Hatch, and that doing so violated his First Amendment rights. As this newsletter went to press, however, a judge rejected those claims, and an appeal of the ruling has been filed.
ACLU Brief Urges Court to Strike Down Narragansett “Orange Sticker” Policy
The Rhode Island ACLU has filed a motion in federal court, seeking a declaration, without the need for a trial, that the Town of Narragansett’s highly-publicized “orange sticker” ordinance is unconstitutional. In a 22-page brief accompanying the motion for “summary judgment,” the ACLU also requests a permanent injunction against the Town, barring enforcement of the ordinance.
The ACLU filed suit last year against the ordinance, which authorizes police both to charge tenants and landlords for allowing “unruly gatherings,” and to place orange stickers on houses that have allegedly been the site of such gatherings. The lawsuit, filed by ACLU volunteer attorney H. Jefferson Melish, is on behalf of the URI Student Senate, as well as four students and three landlords who have been affected by enforcement of the ordinance.
The ACLU brief argues that the ordinance is unconstitutionally vague, by failing to “provide fair notice to students, tenants or landlords of what constitutes illegal behavior” and by not providing “appropriate guidance to the police to ensure non-discriminatory and non-arbitrary enforcement.”
The brief also claims that the ordinance violates the plaintiffs’ due process rights. It notes:
“The act of affixing a 10 inch by 14 inch orange sticker to the front door of a rental property is left to the sole discretion of the police with no opportunity for a hearing either before or after the posting of the orange sticker.
“Since the orange sticker can not be removed until the end of the school year without financial penalty, regardless of the presence or absence of the original ‘unruly’ tenants, its presence stigmatizes the reputations of the landlord and any and all tenants, and reduces the value of the property, depriving the landlord of fair use .”
RI ACLU attorney Melish said: “The ordinance is clearly aimed at shaming students and landlords by branding their residences with large orange stickers, the town’s modern-day version of scarlet letters. We look forward to the Court’s ruling on our constitutional challenge to this ill-conceived ordinance.”
A court hearing on the ACLU’s motion is expected to be held in October.
ACLU Files Brief Supporting Child Welfare Suit Against DCYF
Calling the decision “unjust and erroneous,” the Rhode Island ACLU has filed a “friend of the court” brief urging reversal of a federal district court ruling that threw out a case against the Department of Children Youth and Families (DCYF) alleging the mistreatment of foster children in its care. The brief was filed in the U.S. Court of Appeals in Boston by RI ACLU volunteer attorneys Andrew Prescott and Steven Richard of the law firm of Nixon Peabody LLP.
The lawsuit, filed by the Child Advocate and the national advocacy organization Children’s Rights, argued that DCYF was systematically violating the constitutional rights of foster children, who often face mistreatment, neglect and unstable placements. However, a federal judge dismissed the suit earlier this year on the ground that only the Family Court guardians of the foster children had standing to bring a federal lawsuit on behalf of the children. In filing a brief in support of the appeal of that ruling, the ACLU called the need for unimpeded access to the courts a “critical component to protecting one’s constitutional rights.”
Citing a number of U.S. Supreme Court cases that have recognized the importance of court access by individuals seeking to vindicate their constitutional rights, the brief argued:
“A perverse and illogical result follows from the District Court’s outright denial of the Plaintiffs’ access to justice in federal court. Prisoners must receive help in pursuing legal action; alleged terrorists, not citizens of this country, must be allowed the habeas corpus writ; and indigent mothers must be allowed to appeal termination rulings without paying costs. But innocent Rhode Island children, victims of the worst kinds of abuse, cannot get into federal court… Simply put, this is an unjust and erroneous result.”
Responding to the court’s claim that the children’s Family Court guardians are available to protect their rights, the brief noted that there was “clear record evidence that these guardians ad litem have not and will not likely challenge DCYF’s actions and omissions because of alleged conflicts of interest.”
RI ACLU attorney Prescott said: “Children suffering in a malfunctioning state system should not be denied their day in court because of an unnecessarily narrow interpretation of a procedural rule. We hope that this appeal will restore the children’s right to bring this important claim in federal court.” Fifteen national children’s rights organizations also filed a brief seeking reversal of the lower court ruling.
Comments Offered on Medical Marijuana Dispensaries.
The Affiliate attended an informal hearing at the Department of Health on August 25 to offer comments on proposed regulations governing compassion centers in Rhode Island. Legislation authorizing compassion centers – medical marijuana dispensaries – was approved by the General Assembly this year. Among the ACLU’s concerns with the regulations were issues surrounding Bureau of Criminal Investigation (BCI) checks for center employees. Proposed language would require a full BCI report that includes a comprehensive criminal history – including non-conviction information – to be maintained in the employee’s personnel file. That is both unduly invasive and an extreme departure from the statutory norm; the ACLU approvingly noted that most other positions required by law to have employees submit to a BCI search seek only specific disqualifying criteria, and do not authorize release of the details to employers.
The proposed regulations also inappropriately require that any application for operation of a center include “evidence that the city or town for each physical address to be utilized as a compassion center … is not opposed to the operation of a compassion center facility.” This gives veto power to cities and towns, when in actuality the statute provides that decisions for approving an applicant must be based on “the overall health needs of qualified patients and the safety of the public.” The hearing was well attended and the Department fielded a multitude of questions and suggestions. A revised version of the proposed regulations is expected in the coming months, as the Department acknowledged it would not meet the legislated September 2009 deadline.
Local Senators Oppose E-Verify.
On the national front, the ACLU extended thanks to Senators Reed and Whitehouse for voting to table an “E-Verify” amendment introduced by Alabama Senator Jeff Sessions. The Sessions Amendment sought to make the current temporary E-Verify program permanent and mandate its use for all federal contractors and subcontractors. The ACLU supported the motion to table because of numerous, well-documented errors in the E-Verify program threatening the employment of thousands of U.S. citizens and lawful immigrant workers. Since that debate, the Obama Administration has, by regulation, expanded use of the E-Verify program.
Major Women’s Rights Decision Commemorated.
This July the RI ACLU commemorated the 30th anniversary of the R.I. Supreme Court decision in Traugott v. Petit, in which the Affiliate successfully overturned a lower court ruling requiring married women to use their husband’s surname on their driver’s licenses.
It was only in 1979 that the state’s High Court definitively ruled that a married woman could actually decide what her name was. The RI ACLU volunteer attorney in the case, Sheila Cabral-Sousa, perhaps summed things up best at the time when she said: “The very least you can have in this damned life is your own name.” But the fact that the ACLU had to bring a lawsuit to win that right says much about the paternalistic discrimination that women in society routinely faced, and continue to face to this day.
The past thirty years have seen many more victories for women’s rights. Notable RI ACLU cases include a successful challenge to a state law requiring husbands to be notified before a woman could have an abortion, and overturning a statute that allowed a municipality to hire an all white, all-male private fire department. However, the struggle against gender-based discrimination continues to this day in the fight for equal pay for equal work and similar issues.
Groups Support Medical Confidentiality.
Three organizations that advocate for patients’ rights issued a statement supporting Rhode Island Hospital’s refusal to turn over private medical information about a patient to Providence Police officials. The statement from the R.I. Medical Society, the R.I. Disability Law Center and the R.I. ACLU in response to the controversy commended the Hospital for respecting patient confidentiality laws.
The police had assisted in transporting a crime victim to the hospital and then, without explanation or seeking to contact the victim’s family, sought the victim’s medical information from the Hospital as a purported aid to them to investigate the crime. In demanding that the Hospital turn over the victim’s medical records, the police wrongly cited a state law relating to the release of medical records to address hospital errors in providing care to patients.
The Back Page
RI ACLU to Hold Regional Membership Meetings
The Affiliate is planning a number of regional membership meetings around the state. These meetings will give members a chance to hear Affiliate updates and speak directly with staff and board members about on-going civil liberties issues. We are hoping to hold our first meeting in Northern Rhode Island. Please check back as more details and the program format are finalized.
Tune in to the ACLU’s Monthly Cable Access Show
Throughout October & November, the ACLU’s cable access show “Rights of a Free People” will air a two-part special shot on location during our recent 50th Anniversary event, “Free to Believe: Defending Religious Freedom in Rhode Island.” These shows will capture the lively conversation featuring appearances by Roger Williams and Anne Hutchinson as they and others explore religious freedom and separation of church and state in Rhode Island. The program will be moderated by Dr. Stephen Marini, Professor of Religion at Wellesley College.
- 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)