In court papers released today, the ACLU has fired back at attempts by Family Court Chief Judge Jeremiah Jeremiah and the state’s Truancy Court magistrates to remove two National ACLU attorneys from a lawsuit challenging the legality of various Court practices, based on the attorneys’ exercise of their free speech rights. The judges have claimed that National ACLU attorneys Robin Dahlberg and Yelena Konanova engaged in “reckless professional misconduct” by publicly commenting about the lawsuit at the time it was filed, but the ACLU calls the judges’ effort “nothing more than a heavy-handed attempt to stifle the kind of criticism of governmental activities inherent in our democratic system.”

The pending lawsuit, filed in March by the National ACLU and its Rhode Island affiliate, charges that the truancy courts are frequently punitive in nature, and that truancy court magistrates threaten vulnerable children and their parents with baseless fines and imprisonment, remove children from the custody of their parents without legal justification and fail to keep adequate records of court hearings. The lawsuit also charges that the court system disproportionately impacts children with special educational or medical needs. Since the suit was filed, the ACLU has been contacted by more than 38 parents or students seeking to participate in the case.

In calling for the ouster of Dahlberg and Konanova from the case, the judges, in a court filing earlier this month, cited comments the attorneys made the day the suit was filed. Among them is this statement from Dahlberg: “Pushing kids into the juvenile justice system is not the way to help at-risk youth graduate from high school and, in fact, only increases the likelihood that they will ultimately end up in the criminal justice system.” The judges claim that comments like those violated court rules that restrict lawyers from making extra-judicial statements that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

The ACLU’s response, filed with the court, states that:

Revoking Dahlberg and Konanova’s permission to participate in the case would violate their right to freedom of speech. The response notes that the attorneys “have a right to speak out publicly about the legal and factual allegations of the complaint – a document that is readily available to any member of the public.”

  • The judges’ motion lacks any legal basis. In fact, their objection did not cite a single decision that supports their motion.
The ACLU attorneys’ comments fully comport with the Rules of Professional Conduct, which seek to prevent lawyers from making inflammatory statements that might prejudice a jury. No one has requested a jury in this case.

Among the other comments cited by the judges as “a pure ploy to poison the public against the Truancy Court process” is Konanova’s statement at an ACLU news conference announcing the filing of the suit: “Stop depriving children and their parents of their basic constitutional rights.”

In contesting the judges’ motion, the ACLU memo notes that the judges “have engaged in the same kind of publicity respecting the alleged virtues of Truancy Court about which they now complain with respect to plaintiffs’ counsel.” The ACLU brief also calls the attorneys’ statements “sedate by comparison” to comments made by other attorneys that courts have held were protected by the First Amendment. In particular, the memo cites a recent R.I. Supreme Court decision overturning sanctions imposed on Attorney General Patrick Lynch in the highly-publicized lead paint case for calling the companies and their counsel “despicable,” and saying that they would “spin and twist the facts.”

The ACLU’s memo also rebuts other objections offered by the judges for revoking out-of-state counsel’s permission to participate in the case. No date has been set for a court hearing on the judges’ motion.

RI ACLU executive director Steven Brown said today: “Our lawsuit alleges a widespread pattern and practice by the Truancy Court judges of violating the due process rights of children and parents. Their attack on our attorneys for speaking out about this case suggests that the Truancy Court may have about as much respect for the First Amendment as it does for due process of law.”

In addition to Dahlberg and Konanova, the case is being handled by Deborah N. Archer of New York Law School and Rhode Island ACLU cooperating attorneys Amy R. Tabor and Thomas W. Lyons.

Read more about this case.