The Westboro Baptist Church protested outside nearby schools today.  See article.  In response, Ferris High School closed early. Was this the right thing to do?  Shouldn’t the police prohibit any protest that would be so close as to disrupt a public secondary school?

Here is the background: If you don’t already know, the Westboro Baptist Church is a small group out of Topeka Kansas that thinks homosexuals are destroying our country, and feels that God is punishing the U.S. for its tolerance of homosexuals by killing American soldiers overseas.  The church has outraged many Americans by protesting nearby military funeral with signs that read “God hates Fags”, “Thank God for IEDs”, “Thank God for dead Soldiers”, “Semper Fag” etc.  In response, there have been large counter-protests staged.  A group call the Patriot Guard Riders follow the Westboro protests at funerals and try to drown out the protesters with their loud motorcycles.  The Westboro Baptist Church has been sued for intentional infliction of emotional distress by families of deceased veterans.  Albert Snyder, the father of a young man killed in Iraq in 2006, sued and won $500,000.  However, the appellate court overturned the jury award on appeal, and the case is now pending before the U.S. Supreme Court.  The oral arguments have been held, and it looks like the court is poised to rule that the particular protest that Mr. Snyder sued over was protected by the First Amendment.  Part of the problem with the  case is that the Westboro protest was 1000 feet away from the funeral, and the funeral wasn’t actually disrupted.  More on that case here.  Meanwhile, today in Spokane the church wasn’t protesting at any funerals, rather the church singled out locals schools.  The protestors visited Gonzaga, Whitworth, EWU, and Ferris High School.  Check out this YouTube video of the Spokane protests.

According to the Spokesman-Review article, “Ferris High School students were released from school before the Westboro members arrived to avoid congestion from all of the protesters, said Terren Roloff, Spokane Public Schools spokeswoman. Administrators also did not want students to have to be exposed to the church’s hateful and offensive messages as they left, she said.”
In my opinion, the police should have set up a perimeter around Ferris High School in which protestors were not allowed. Under court precedent, the government is permitted to take measures to prevent disruption of classes for children in public schools. In this state, school attendance is compulsory. See RCW 28A.225.010. Additionally, under Article 9, Section 1 of our state constitution, public education is a right for children.  So while, the society may have to put up with raucous protests near universities, such is not the case of our secondary schools.  Under the “captive audience doctrine” the government can protect people from having to listen to disturbing messages while they are “stuck” in school, on the job, at job centers, and occasionally even at their home.  Different rules apply there than in a town square, a park, or random street corner.  “Captive” listeners have a recognizable privacy interest in avoiding unwanted communication where “the degree of captivity makes in impractical for the unwilling viewer or auditor to avoid exposure.”  Hill v. Colorado, 530 U.S. 703, 718 (2000).  The Ninth Circuit Court of Appeals has ruled that it is appropriate to consider that a public school consists of an audience that is “essentially captive and composed of impressionable adolescents…” Nurre v. Whitehead, 580 F.3d 1087, 1094 (2009).

For more news on the protest at Ferris High School see here. What do you think? The Westboro Baptist Church does an average of 6 protests per day. Should we really have to cancel school days just for them?

When I filled out my mail-in ballot today, I voted for Richard Sanders for the Washington State Supreme Court.  It wasn’t a hard decision.  I have always like him, even back when I was a prosecutor. Some of the other justices seem like they are inclined to pretty much rubber stamp every decision made by our State or local governments.  Sanders isn’t above taking the government to task.  I remember years ago, when I was handling a water rights case against the Department of Ecology, I read an earlier opinion of his calling the Department’s failure to follow its own timelines “scandalous”.  The opinion was a dissenting opinion, but I was still able to quote it to the administrative law judge to help push Ecology along.  I don’t believe that Sanders’ opponent, Charles Wiggins, is such a bad guy.  But I definitely prefer Sanders, and think that many of Wiggins’ criticisms of Sanders are unfair.

I think the Seattle-Times put it best this morning with their headline: “WA Supreme Court Race Puts Sanders on Defense”.   Richard Sanders IS on the defensive, but not from the Seattle-Times, which endorsed him.  Most other major newspapers of Washington have endorsed him too.  Rather, Sanders’ biggest critics are elected prosecutors and superior court judges, most of whom are supporting his opponent.  But the Seattle-Times didn’t mention one increasingly outspoken critic of Sanders: the editors of the Seattle paper The Stranger.  The biggest critic is one assistant editor, named Eli Sanders, oddly enough.  The Stranger? You may not have heard of it if you live in Eastern Washington.  And you may not have heard of it if you live in Western Washington either.  Its circulation is mainly in Seattle, but as we know from past gubernatorial races, Seattle has a lot of votes.  And The Stranger seems to be going of their way to discredit Sanders in every way possible.  The Stranger has taken to digging up past articles he wrote years ago as a student of UW.  The Stranger has also been digging through his old court files from his divorce in 1969, and the paper quotes a named individual that claims that Justice Sanders introduced two different women as his “girlfriend”.   Like I said, they are really going after him.  This article, which is here, was accurately characterized as a “hatchet job” by Seattle blogger Barry Pump.  As to digging up Sander’s past student articles from the 1960’s, Barry Pump writes that he already wishes to take back opinion pieces he wrote as a student, and that was just 4 or 5 years ago.  The funny thing, in my opinion, is that next to this article, The Stranger has racy personal ads, and also an advertisement inviting readers to click a banner ad where they can make money by starring in pornographic movies.  The editors of The Stranger are mostly irked at Sanders for characterizing himself as a champion of freedom when he voted on the court not to recognize the right of gay marriage.  The case was Anderson v. King County, a decision that I don’t agree with either, but that hasn’t prevented me from seeing the overall value of having Sanders on the Supreme Court.  It is hard to really pigeon-hole Sanders supporters.  When I was an elected prosecutor, I supported the guy, but I was one of the few.  I know a lot of deputy prosecutors that support him too individually.  The newspapers stories always tout the opposition of the Washington Association of Prosecuting Attorneys, but that group just speaks as a voice of the 39 elected prosecutors of Washington.

What do you think?  Is Sanders the way to go?  Will The Stranger be able to sway voters?

From my past posts, you know that I occasionally post on the subject of our local mock trial competition. I have blogged about this mock trial here.  I have posted my tips for students competing in the mock trial competition in a new mock trial blog.  If you or someone you know is doing a competition, check it out.  It contains tips for student witnesses, student lawyers, and coaches.

Facebook? Twitter? Youtube? Blogs? These typical tools of social networking and internet marketing are beginning to be used to find missing persons. For example, take a look at the search for Owen Kiernan Rooney. The story of Owen Kiernan Rooney was mentioned on @Miramou on Twitter, also on YouTube.

His sister Kelly and other family members are using the social network sites to look for info on their missing brother. Owen Rooney is missing, and was last seen just across the border in Grand Forks.

The story of his disappearance has since been told on blogs, YouTube, Twitter, and Facebook. Like a lot of Australians, Owen Kiernan Rooney came to Canada to work at the ski resort Big White near Kelowna. (Where I sometimes ski). Mr. Rooney was the victim of an assault and later checked in to the hospital in Grand Forks, but later he left the facility unexpectedly. For more details on the circumstance, see the post on the site Shelter Offshore. If you live in the U.S. border counties like Okanogan, Ferry, Stevens, and Pend Orielle, please continue to look out for this young man in his prime. In my work as a criminal defense lawyer, I have often seen clients or their friends of family disappear. I have assisted them in a small way with some pretty basic computer searches. But nothing is better than the tireless dedication of family members. And we have certainly seen the hard work of Owen Rooney’s family. We wish them the best. I have often seen such work pay off.
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At Riverside High School in Spokane County, and elsewhere around the nation, students have clashed with school officials over their right to wear bracelets that support breast cancer awareness. The bracelets read “I Love Boobies!” and are sold by the Keep A Breast Foundation. The Keep A Breast Foundation is a non-profit corporation committed to reducing breast cancer, and the group focuses on educating younger people. The Spokesman-Review today covered the story of how Dakota Jewell and  Zack Jordan were suspended from Riverside High School for two days  on Thursday for allegedly refusing to remove their bracelet that read “I Love Boobies!”  When word got out that the two boys were suspended, many of their classmates joined them, wearing similar bracelets, and creating signs with the same slogan.  More students were suspended Friday.  The Spokesman-Review reported that Dakota Jewell donned the bracelet because he has had family members die of the disease and he wanted to promote awareness.   Several students joined their friends in protest and were also suspended, and now some students are vowing to wear the bracelets this Monday as well. I have been in contact with a few of the students and have given them some pointers on how to have their rights respected, and how to avoid suspension.

Similar disputes are going on nationwide.  Other schools nationwide have tried to prohibit these bracelets in school.   I have not heard of any such cases going to court.  It is certainly a matter of freedom of speech, but maybe the ACLU isn’t volunteering to take up causes like this because the speech really doesn’t involve overtly political or religious speech.  But that’s just a guess.  Last week, Professor Howard Wasserman of Florida International University School of Law offered his opinion on the subject of “I Love Boobies” bracelets in school.  Wasserman accused the cancer foundation of going for the “lowest common denominator”.  He opined that the students wouldn’t “have a prayer” of prevailing on first amendment grounds.   However, professor Kathleen Bergin of South Texas College of Law wrote last month that she thought the “I Love Boobies” bracelets might be protected by the first amendment.  She wrote: “… it’s hard to see much of a difference between arm bands worn to protest the Vietnam War, which the First Amendment protects, and a bracelet worn to raise awareness about cancer.”  (The legal precedent she refers too is Morse v. Tinker, which I blogged about last year here.)  In the Tinker decision, the U.S. Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam war and to push for a truce.  The school banned all armbands, and when the students wore them anyway, they were suspended.  In 1969, the Supreme Court struck down the school rule, explaining that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But a student’s right to freedom of speech is not unlimited, and in 1986, in Bethel School District v. Fraser, the U.S. Supreme Court upheld the punishment of a student who used vulgar and lewd language when speaking at a school assembly.   The student gave the following speech in support of a candidate for student government:

I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.  ‘Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. ‘Jeff is a man who will go to the very end — even the climax, for each and every one of you.

The bracelets the kids at Riverside wear are certainly less disruptive than giving a speech such as the above.  My opinion is that a court would strike down Riverside’s prohibition of such bracelets.  I believe a court would likely side with Dakota Jewell and Zack Jordan.  The “I Love Boobies” bracelets are not as “political” as armbands protesting a war.  However, the way breast cancer research is funded, and the way its survivors are treated is a very hot political issue in the country.  And lets face it the word “boobie” might be a little silly or immature, but it is hardly “vulgar” or “lewd”.

I have a great deal of sympathy for the students of Riverside.  They will be faced Monday with a decision of giving up their rights or attending class.  I remember when MaryBeth Tinker spoke at Gonzaga (see post), she mentioned that it was three years after her suspension before the case went to court.   It would seem to be pretty demeaning to the students to be told that they are so immature that they cannot handle seeing the word “boobie” in small print around someone’s wrist.  If it were my son or daughter, I would tell him to go to school with the bracelet on, but with a little black tape covering the “offensive” word.  Nothing protests censorship like duct tape.

For earlier posts on the subject of freedom of speech in the school setting. see here, here, and here.

What do you think?  Was the principal right to ban these bracelets?  Could these bracelets lead to sexual harassment at all?  Does it matter that these kids seem to have a well-intentioned concern for people with cancer?

Retired Ferry County Superior Court Judge Larry Kristianson has endorsed Dennis Morgan over the incumbant prosecutor Michael Sandona in Ferry County.   Judge Kristianson served as a judge in Ferry County for over twenty years.  Mike Sandona and Dennis Morgan are both running for the position of Ferry County Prosecuting Attorney.  The race will be decided in the November election. For a prior post on the Sandona / Morgan race, see here. 

Last week I blogged about a teacher in Spokane who had been put on leave for passing out lyrics to a Blue Scholars song.  See post.   Since that time, a Facebook site sprung up in his defense.  See here.  The site announced that teacher Brad Read would be back to work soon, and this is confirmed by a story posted this morning in the Spokesman-Review.  His return to work was heralded by some, but when you read the details, the way the school treated him is pretty discouraging.  In order to be rejoin his students, Brad Read had to forfeit 19 days pay, and sign a “last chance agreement”.   Such an agreement makes it very easy for the school district to get rid of him even for a minor error.  Additionally, Brad Read had to admit wrongdoing, and agree not to make any public statements in his own defense contrary to that admission.  In other words, he had to agree to a gag order. 

I wondered in my earlier blog post who it was exactly that was imposing the discipline.  That question is answered by the disciplinary letter that Shadle Park School District provided to the Spokesman-Review.  The school official is Assistant Superintendent Staci Vesneske.  You can see why Staci Vesneske would have a problem with what Brad Read did.   Look again at the lyrics of the song he distributed.  The song is very critical of the public school system, a system in which  Staci Vesneske has thrived.  When the Spokane school district was under fire for having too many high paid administrators (rather than teachers), Staci Vesneske spoke in defense of the $175,000 salaries.  See source.   Why are the administrators getting paid so much when they are doing such a bad job of keeping kids in school?

When news came out that Brad Read was placed on leave, many people wondered why a teacher would be suspended just for distributing song lyrics that contained the word “fuck”.    People didn’t understand because the same word is in books in the current curriculum such as  “A Separate Peace”.  The truth is that the disciplinary action against Brad Read has less to do with the word fuck, and more to do with the criticism of Staci Vesneske’s school system.  I have never met or spoken to Brad Read, but you have to feel a little bad for a teacher who was forced to choose between the students that he loved and his first amendment rights.

I always like to hear what someone has to say when they are leaving a job.  Leaving a job definitely allows people to be pretty candid about their experience. When I stepped down from my position as the GMA lawyer for Ferry County, I took the opportunity to criticize the groups Riparian Owners of Ferry County and the Stevens County Farm Bureau for their frivolous suits against Ferry County.  See post. Well this week was Michael Haas’ turn to tell us what he thinks.  The Omak-Chronicle reporter Al Camp interviewed Haas about his departure and his planned move back to Port Townsend.  At first the article explained that he was leaving for family reasons, and then Haas went on to lavish compliments on many of the court house staff. He is quoted as saying:  “Overall, your judicial system works well. Your judges are thoughtful, respectful and take their jobs seriously… The same is true for your prosecutor’s office and the county commissioners.”  Just when I was getting ready to think this was a fluff piece that Al Camp wrote, I saw what Haas had to say about law enforcement in Okanogan County.  “…[T]he overall quality of investigations in Okanogan County is abysmal.”   Al Camp explains that Haas said that part of the problem is all the small police departments, though he said the sheriff’s office left much to be desired as well.  Haas questioned the decision of every municipality to set up their own police force, and added that the police could benefit by better and regular training.

So what sort of letters to the editor is this article going to provoke?   I guess we will see when the new paper comes out tomorrow.  Though Haas would certainly know better than me about Okanogan, I am not sure Okanogan police investigations are really that much worse than other rural areas.    In all rural areas, it seems like unproductive officers are allowed to stay on working because it is too hard to get rid of them.  Then you have some inexperienced officers who are totally gung-ho, but really don’t know what they are doing and don’t have the patience to listen and learn from the prosecutors.  A lot of the really good cops end up getting lured away by bigger departments that can afford to pay more.  When I used to work as a prosecutor, the police definitely used to drive me crazy.  Some of the police I worked with often turned in lackluster work, but would expect superhuman results from me as a prosecutor.

Although I didn’t get to know him real well, I always liked Michael Haas.  He knew a lot of about the law, kept up-to-date with new changes in the law, and was always pretty collegial.  I blogged about case he was involved in when he first came to town.  See post.

What do you think?  Is Haas right that there is room for improvement in Okanogan County law enforcement?  Is he simply saying what others are too timid to mention?  In the article Haas mentions that more funding should be spent on drug recovery programs than drug enforcement?  What do you think of that?

You have to wonder about those students at Shadle Park High School.

Their popular English teacher Brad Read was placed on leave the other day for passing out the lyrics to a rap song, and the students have not come out publicly in his defense.  Apparently some parents complained about the song that contained foul language.  Here are a sample of the lyrics by Seattle hip-hop artists Blue Scholars:

With the grade point average hanging over head,
Brother sister please don’t believe the bullshit they said.
Fuck the pledge of allegiance and arrogant teachers
But peace to the people who don’t ever preach in the front of a classroom
All day long, planting seeds of revolution,
We dedicate this song.
It goes one for the student who refuses to submit
And two for the teachers who are underpaid as shit
It’s the next generation of miseducated youth
Who demonstrate the truth and manage to make it through

If you want to check out the Blue Scholars video, click here.  Looking at the lyrics you can kind of see that the problem may have less about the word “fuck” and more about the the irreverence of the song.  The latest word on the subject was that the teacher Brad Read was on leave pending an ” investigation.”  See article in the Spokesman-Review.  What is there to investigate?  He passed out some lyrics – give him an oral warning and put him back to work.  Why are the students at Shadle Park High School putting up with this baloney?  Are they content to have to deal with a substitute while the school administrators meet to make sure that the students are exposed to only the blandest, most non-controversial curriculum?  Isn’t it an insult to the students’ intelligence for the school to think that Shadle Park kids need to be sheltered from the words “fuck” and “bullshit”?  I blogged earlier this year about students of the past demonstrating with black armbands.  (See post.)  Maybe armbands aren’t the way for the students of today. But what about starting a Facebook page in the defense of this aptly-named English teacher?

I guess it is a school’s job to build character. And I suppose one virtue the school is supposed to instill is courage. It doesn’t show a lot of courage for school officials to overreact and put a teacher on leave simply because one person complains about something that might be controversial. Couldn’t this have been handled short of putting teacher Brad Read on paid leave? It does not show a lot of courage for Shadle Park to kowtow to the person or people who complained. It is a waste of the school district’s money to be paying a substitute and having a teacher sit at home. I would kind of like to know the name of this school official who freaked out about these lyrics. He or she should be named in the paper. So far all I have seen in the paper is the name of the spokesperson for Shadle Park High School.

(Note from 9/24/10: To see the outcome of this case, see the recent post here.)

Before we turn to Anne Bremner, who remembers Randy Dorn’s DUI?  Randy Dorn is the State’s School Superintendent who avoided a publicity circus surrounding his DUI earlier this year by simply marching in as soon as he could and pleading guilty.  See earlier blog post. It appeared at the time that Randy Dorn plead guilty straight-up to the DUI rather than hold out for a reduced charge, simply to avoid the appearance that he was receiving any special deal.  In contrast, look at the media storm that Seattle Lawyer Ann Bremner has caused by her DUI. She initially blamed her erratic behavior on a concussion, then raced to court to attempt to prevent release of the police reports.   This was the subject of the Seattle Weekly Blog this week.

Rick Anderson writes: “It would subject her to embarrassment and ridicule if police records are released to the press about her arrest for drunk driving, says popular Seattle attorney Anne Bremner. Instead, she has chosen to be embarrassed and ridiculed for not releasing those records. For such a media-savvy attorney with an impressive legal background, it appears she has already lost in the court of public opinion.”

You really have to wonder what Anne was thinking in trying to go to court to stop the release of her police reports and 911 calls.  Washington has some of the toughest public disclosure laws in the U.S.  Rick Anderson goes on to write: “For a smart and creative lawyer whose client list includes cops and other public officials, the brain-damage excuse – while an oldie and a goodie – isn’t much of a defense. It’s a sure-fire headline maker, in fact. Of course, we’re assuming that wasn’t her intention.”  I guess I am not sure I agree with Rick Anderson that we can assume that that was not her intention.  You often hear the expression that “there is no such thing as bad publicity.”  I am sure this is true for hip-hop artists, but is it true for high-profile defense attorneys?  In this day and age, negative publicity seems to dominate the media’s interest. I really doubt if Anne Bremner gives a hoot about her name in the paper for a DUI arrest. While she may not be a rap star, she certainly is not the elected school superintendent, and I doubt if her clientele would really care about a DUI conviction.   Let’s face it, defense attorneys are not always the most adored members of society.  The public associates us too much with the clients we represent.  Our work might be viewed as a constitutional necessity, but we do not hold ourselves out as roll models.    I thought of this today when I read in the Seattle-Times that the police had released the police reports of her DUI arrest. (The Seattle-Times posted the reports online here.)  As police reports go, the arrest is pretty run of the mill.  You can tell she is a criminal defense lawyer because she knows enough to refuse to take the field sobriety tests or to waive her right to remain silent.  And like most people who are arrested for DUI, she sounds as if she was a real pill for the police to have to deal with.  The police attempt to portray her as throwing her weight around, and boasting that she is “famous”.  But I half wonder if the police don’t sometimes embellish these sort of statements.