Molly Graham: This is an oral history interview with Stephen Pevar for the Rutgers Oral History Archives and the American Civil Liberties Union Oral History Project. The interview is taking place on October 29, 2016, in West Hartford, Connecticut, and the interviewer is Molly Graham. A couple of things from the last time we spoke.
Stephen Pevar: Yes.
MG: You had talked about your time at the Indian reservation, and what it was like for you socially and personally. But we did not talk too much about the cases you were involved in there.
SP: Sure. This was a Legal Aid office. So, we pretty much took people as they walked in for any case that they might have. It could be a divorce. It could be a name change. It could be, "I was fired by the tribe." It could be a civil rights case. So, very different from the work I do with the ACLU [American Civil Liberties Union], which focuses exclusively on civil liberties issues and almost predominantly on Constitutional questions. We had tons of different files, criminal files, juvenile delinquency issues, consumer protection issues. You know, "I bought a car, and it broke down, and he won't give me my money back." While I was there, I did litigate a number of civil rights cases. In fact, one thing that I sent you, I think--yes, there's actually two lists of my cases. One is that one, in which I wrote down each case as I filed it, and then this is a list of my reported cases. These are cases in which the judge or someone considered the decision important enough to actually publish. I was looking back over, I mean it's an unusually long list. I don't think that many lawyers unless they're part of the Attorney General's office who handles criminal cases or something, will have that many. I printed this up, and this is another vehicle that we could use because these would tend to be very significant cases. Anyway, I see here the cases that I argued and litigated while I was on the reservation, and then the rest are since I started working for the ACLU. Even with Legal Aid, I was looking for precedent-setting cases or civil rights cases that I could bring on behalf of my clients.
MG: We talked about an important case you had tried when you were very young, right out of law school, that got you on the radar of the ACLU later on.
SP: Yes, yes.
MG: I was curious if that was while you were on the reservation.
SP: Yes. In fact, I inherited that case when I started. I replaced the fellow who filed that case. He told me that he had lost the case in the Federal District Court and had filed an appeal and that the appeal was going to be argued. It had already been scheduled for argument and that he wasn't going to be around, and I'd need to argue it, which was both exciting and intimidating. I mean, there's only thirteen U.S. Courts of Appeal in the United States. I was just months out of law school, and I was going to have to argue this case in the U.S. Court of Appeals. I still remember rehearsing it and saying it aloud in front of a mirror. I mean, this was really my first big oral argument, and we won there. I argued the case, and we won. It was a significant Indian law case, and that did get me on the radar, both with respect to Indian issues and the ACLU.
MG: What was the name of that case?
SP: Luxon v. Rosebud Sioux Tribe [of South Dakota].
MG: Who was Luxon?
SP: Ann Luxon is a tribal member. Just to explain the case briefly--well, first of all, in 1896, the U.S. Supreme Court decided a very significant case, holding that tribal courts do not have to provide to people who appear in tribal court the rights that you and I would have under the U.S. Constitution. A tribal court need only provide those rights that the tribe decides to bestow on people in tribal court. That means that if you were in tribal court, you wouldn't necessarily have the protections you would be accustomed to receiving in the state or federal court. They could have whatever courts they want.
So, that led to what some people felt were abuses, or at least where most Americans consider justice to be what is contained in the Constitution, and tribal courts didn't have to abide by that. So a number of complaints reached members of Congress. They held some hearings, and they passed in 1968, a law called the Indian Civil Rights Act, ICRA. Well, without going into too much detail, ICRA has some confusing parts to it. One of the biggest areas of doubt was whether you could obtain a remedy in federal court if a tribal court violated the Indian Civil Rights Act, ICRA. In other words, did you have a federal remedy for the violation of all of the federal rights that are contained in ICRA? That was a hot question, and no U.S. Court of Appeals had addressed it yet, and this case did. The Court of Appeals ruled that no, you can't have a federal right without a federal remedy, violations of ICRA committed by tribal courts or any tribal official can be heard and adjudicated in a federal court. It was a very significant case, and it was decided in 1972, four years after the passage of ICRA.
As a quick footnote, in 1978, the U.S. Supreme Court ultimately addressed that very same question and ruled differently, and held that some of the rights contained in ICRA can only be remedied in a tribal forum and that Congress had not provided a federal remedy for all of the rights that are contained in ICRA. But the Luxon case had ruled differently, and other courts followed Luxon. But she was a tribal member who claimed that the tribe had violated one of the rights that she does have under ICRA. We then went to federal court, and the Eighth Circuit said that there should be a federal remedy for that and ordered the tribe to change its policies. Many years later, though, the Supreme Court, in another case, held that essentially the Luxon decision was wrong.
MG: What was the right that was violated?
SP: She wanted to run for office, for tribal council. A fellow had recently held office, who left under very bad terms. He worked for the Bureau of Indian Affairs, a federal agency. So the tribal council passed an ordinance in an effort to prevent him from ever running again, and said that no one could be on the tribal council who is employed by a federal agency. It was directed at him. Well, Ann Luxon happened to be an X-ray technician for the Indian Health Service. So it applied to her, as well. We challenged it, and the court agreed that that violated her right to equal protection of the laws. There simply wasn't a reason why somebody who is an X-ray technician had to choose between her employment and running for tribal office. They held that it was a violation of her rights under ICRA.
MG: Right. We had touched upon that last time, but I just wasn't sure of some of the personal details. I know you wrote about that case in your book, too.
SP: Yes. Well, my book discusses the Indian Civil Rights Act. Chapter fourteen is addressed to that statute, and I cite this case. I don't discuss it.
SP: It's one of the cases that I cite.
MG: Well, what are some of those other cases on top of that list there?
SP: That I litigated while with Legal Aid?
MG: I have one more question. I am so sorry.
SP: Sure, yes.
MG: The argument that you made, the trial. Was it in line with the previous lawyer's work, or did you take a different spin on it?
SP: No, it was exactly what the lawyer had argued. He filed the case seeking a remedy for Ann Luxon in the federal district court. The federal district court dismissed the case saying that she didn't have a remedy, the very argument that the Supreme Court ultimately did find persuasive. He then appealed that, and we argued that she should be allowed to have a remedy, and the Eighth Circuit agreed. So yes, I just carried on where he left off.
MG: Were there other cases of his that you took over?
SP: I took over his entire set of files. He left, and I took his desk and his files. Yes, there were a couple of cases in federal court dealing with welfare rights issues, but that was the only one that went to the US Court of Appeals that I took over of his.
MG: The first case on the list is the Luxon case.
SP: Right, right. It would take years to go through this entire list. There's seven reported decisions while I was at Legal Aid, and then close to a hundred since then. It would just take forever to go through all of them. So, let me just be selective. One of the more fascinating--well, let's see.
MG: I want to let you know that you set the pace on all this. I am really happy to come back as many times as it takes to get the whole story. But I also do not want to pester you.
SP: No, no. I mean, some would be more run of the mill. And a couple of these I probably have to review. Since we were talking about the Indian Civil Rights Act, here's one that did go to the Eighth Circuit dealing with the Indian Civil Rights Act. There are two kinds of issues covered by ICRA, civil and criminal. ICRA provides a specific remedy for criminal cases. It says that the writ of habeas corpus, which is a remedy that's only available in a criminal case if you're arrested and you're in custody. The law says that you can file a writ of habeas corpus in federal district court. A writ of habeas corpus in Latin means, "To bring the body." It means that if you are in custody and you're claiming that you're there because the tribe violated one of your rights under the Indian Civil Rights Act, you could have a federal court determine whether you're in custody illegally.
One of the cases that I litigated while I was with Legal Aid, in addition--Ann Luxon had a civil case. She wasn't arrested. She was just being denied the right to run for office, and the Eighth Circuit said that there should be a remedy for civil cases. Well, I also later filed the case dealing with a criminal arrest, so that was clearly covered by the remedies provided in ICRA. This fellow was arrested for--I think it was--disorderly conduct and the tribal ordinance was very vague as to what constituted as disorderly conduct, and many state and federal courts had invalidated disorderly conduct statutes when they're overly vague. So we argued that tribal laws have to also be sufficiently clear, and the Eighth Circuit agreed. So that was another Indian Civil Rights Act case. That was very significant because it applied this relatively new law to tribal ordinances that are applied to tribal members and could result in their incarceration. Now, tribal courts have to have a criminal code that is sufficiently clear.
SP: I think I really just finished explaining. It was called Big Eagle v. Andera, A-N-D-E-R-A, and that case helped establish an important principle that as a result of the Indian Civil Rights Act, which has a due process clause in it, similar to the due process clause in the 14th Amendment that you cannot deprive someone subject to tribal law of their liberty without due process and that means that criminal laws have to be sufficiently clear. That has always been true under the U.S. Constitution, and now it's true under the Indian Civil Rights Act.
MG: Was there a jail or prison on the reservation?
MG: I know you spent a lot of your career dealing with prison conditions, and I was curious about how the conditions were at that prison.
SP: Well, they were horrible, and most tribal jails are horrible. Today, this is one of the biggest issues in Indian country, that tribal jails are just miserable, by and large. Congress passed a law some years ago to appropriate funds to help tribes refurbish their jails, but it's not nearly enough to do the job, and it's a pressing issue on many reservations.
MG: Was that something you dealt with while you were there?
SP: No, it wasn't.
MG: Are there any other cases that you want to talk about?
SP: From that period? One dealt with juveniles. We got a state statute declared unconstitutional that authorized--it was a South Dakota statute that authorized the pickup and detention of juveniles without giving them a prompt hearing. That turned out to be an important case dealing with the rights of juveniles who are being detained by state officials. Another dealt with whether--South Dakota, like many states, had a residence requirement for welfare benefits, to discourage people from moving into a state and then collecting welfare. The U.S. Supreme Court had declared that unconstitutional. So we filed a similar case in South Dakota and got South Dakota's restriction on applying for welfare until you had lived in the state for a certain period of time. I don't remember how long it was. But that was another case that I litigated there.
MG: Does welfare function differently on an Indian reservation?
SP: No, it's a state program. Actually, this person was not an Indian. Our Legal Aid office helped any indigent persons. Because we were in the middle of an Indian reservation, the vast majority of our clients were members of the tribe, but maybe fifteen, twenty percent were not, and she was not. Another case that was interesting that invalidated a state statute dealt with pre-judgment garnishment. Garnishment is allowed--let's say I sue you and I win and the only way I can collect the judgment is by attaching, and it's called garnishing your paycheck. So garnishment is the legal term for a court order that allows someone to actually attach money that you're going to be receiving, and normally it's applied to a paycheck. Well, pre-judgment garnishment is a very strong weapon that a creditor could use to force somebody to settle a case or to cave in because even laws back then--and this helped invalidate those laws. Laws back then were very pro-creditor, very pro-seller [and] business person and not very protective of consumers.
So let's say you buy a car, and it breaks down, and you call up the car company and say, "Well, come and get it. I'm not going to pay what I owe you. You sold me a piece of crap." The car company wouldn't have to do anything. They could say, "Well, I'm going to sue you." They could file a lawsuit, and then even before it gets to trial, they get an order garnishing your salary. What are you going to do at that point? Then, you may have to say, "Okay, I need this money. I'll pay you the rest, but I have to do it in installments." I mean, it's a terrible weapon on consumers. So we challenged that on the grounds that one side should not be able to get a remedy like this before the case is even heard. The court struck down South Dakota's pre-judgment garnishment law, which was a very important victory for consumers.
MG: Who was the plaintiff in that case?
SP: A couple who had bought some furniture on credit, [the] (Snaidachs). Again, this is now forty-five years or so ago. I could be wrong. Because it's a reported decision, I actually could look it up easily and find out, but I think it was furniture as opposed to an automobile, but it was one of the two. [Snaidach v. Family Finance (1969)]They felt that they had legitimate grounds not to pay, and the corporation was seizing their bank account and their salaries while the dispute was going on. So we got that stopped.
MG: Any others you want to talk to me about?
SP: I filed a number of welfare rights cases. This was during a period, the late '60s and early '70s, in which there was a surge of lawsuits filed around the country dealing with welfare issues, public assistance issues. I probably mentioned that I had been selected to be this Reggie Fellow. One of the things that we covered during those two weeks was protecting welfare rights. So right out of the block, I get to the reservation, and a number of my clients have welfare rights issues. I had been attuned to them. I filed a number of welfare rights cases, and I'm quite sure we won all of them. One of them, I see here, was reported. I don't happen to remember off the top of my head, but I could look it up pretty quickly, which issue was reported. But some of the issues that we litigated were how the state computed your entitlement to welfare, whether you could be denied welfare. Let's say they either reduce or end your welfare benefits, and you appeal that. I'm quite sure one of the issues we litigated was whether the state must continue to pay you while the appeal was going on or whether they can just stop it even though you're contesting the loss of welfare benefits. That might have been the issue that this case happens to be. Again, if you want, I could quickly look it up.
MG: You are welcome to, or you can wait to put it in the transcript, whatever you prefer.
SP: I can let you know afterward.
MG: I have a lot of patience and time, so however you would like to do this.
SP: That case, just so that you know when I send it to you, it's Howard v. Madigan. If I'm not mistaken, Madigan was the director of whatever state agency it was in charge of welfare. [Editor's Note: Howard v. Madigan was a 1973 US District Court case. The case was against South Dakota's Department of Public Welfare.] [Howard v. Madigan, 363 F. Supp. 351 (D.S.D. 1973) (holding that in a family in which one child receives federal funds, that money cannot be counted as income to siblings for purposes of determining their eligibility for state welfare benefits).
MG: Can you say why you name the head of the agency instead of the agency itself?
SP: Yes. The 11th Amendment to the U.S. Constitution prohibits people from suing states. It's called the 11th Amendment immunity. In 1908, the Supreme Court decided one of the most important cases ever called Ex parte Young, in which the court said, "True, you cannot sue states, but you can sue state officials in what's called their official capacity." In other words, if I were to sue the Governor of Connecticut, and I was challenging a law, I would sue the Governor in his or her official capacity. Meaning that I'm not suing--the Supreme Court has subsequently admitted this, that it's a legal fiction. It's a way for victims of civil rights violations by state officials to get around the 11th Amendment. I mean, clearly, you wouldn't want to have rights literally without remedies. If you cannot sue the state and the state is the one taking away your rights, then it could eliminate all constitutional rights whenever violated by state officials. So you cannot sue the state; you can sue a state official.
MG: Last time we spoke, we talked about the Welfare Rights Organization at the University of Virginia.
MG: I saw an article about the Legal Assistance Society Welfare Rights Project.
SP: Those were the same.
MG: Same thing? Okay.
MG: That must have really informed your work at the reservation.
SP: Yes, it did. That was another reason why I was really attuned to these welfare issues, and I filed a number of cases dealing with welfare issues.
MG: Did you have a telephone in your home on the reservation?
SP: No, I didn't. I could've had one probably, but I didn't.
MG: It would have been useful to call some of your colleagues from the Welfare Rights Organization or people out of law school or even family.
SP: Well, I did have a phone at my office. But I chose not to have one at my trailer, and I didn't have a television in my trailer either.
MG: You had said last time you spent a lot of time listening to music, and I was curious about what you were listening to.
SP: Wow. Lots of different [music], whether Beatles or rock music. I have a fairly wide interest in music, and I had brought up reel-to-reel tapes that I had made before I went out there, and I had a reel-to-reel system.
SP: With a lot of tapes.
MG: One other thing I found in the box was an article about your brother [Jeff Pevar], who was a musician.
MG: I don't know if you told me about that.
SP: Well, he's a phenomenal musician and nationally known, still is today, and he has played with Ray Charles, Rickie Lee Jones, Marc Cohn, Crosby, Stills, & Nash, Kenny Loggins, James Taylor, and he's on a lot of albums. Now, back then, of course, he wasn't as well-known as he later became, but his career was taking off back then. Although, now that I think about it, he's ten years younger. So on the reservation, I was in my early twenties, he'd still be a teenager. But the articles about my brother, as he got older, he became more and more famous.
MG: Does he play around?
SP: He does. In fact. I'm leaving on Wednesday. He's getting married in Oregon. He lives with his significant other Inger in Oregon, and they're going to continue living there. His career would probably be better if he were either in L.A. or New York City, but he still makes his living from playing music.
MG: Good. Before we leave the reservation, were there other cases you wanted to mention? I am happy to talk about any of them.
SP: No. One thing to mention, though, was when I think of my career on the reservation, and I may have already told you this story about the fellow who came to the office and said that his son had been arrested and could I look into that, about the ten dollars?
SP: Yes, okay. I thought I did.
MG: Yes, there were a lot of stories you told that really painted the picture of what it was like to be there.
MG: The story about you were dating a girl whose siblings wanted to come to the movies, and they could not because they didn't have ten cents.
SP: Yes, ten cents.
MG: Yes. And the story about Russell Means and how he treated you at the party. [Editor's Note: Russell Means lived from 1939 to 2012. He was a member of the Oglala Lakota tribe and was a Native American rights activist and member of the American Indian Movement.]
MG: All of that really stuck with me.
SP: Alright. [laughter] Good, good. I'm glad we've already gone over that. Because my life there was totally different from anything I've ever had had before or have had since. It's a very impoverished area, and I had never lived like that. But I got into it, and I chose not to have a television. I chose not to have a phone. I chose to move out of the town where all the other lawyers were and into the community. There was one other white family there, but the others in the vicinity were all members of the tribe.
MG: The other thing I wanted to ask you about before we get into the ACLU was your cross-country bike trip. We did get into how you made it to Missoula, Montana, flew to Philadelphia, and then flew back.
SP: Yes, true.
MG: I was curious about any stories from that.
SP: Oh, wow. Yes.
MG: How long did it take?
SP: It was thirty-eight bicycling days, and fifty-two days total. We stopped in Yellowstone for five days, just relaxing and soaking in hot tubs. Then we stopped in Denver for almost a week. Otherwise, it was bicycling ten, twelve hours every day, and we just loved it. Complete with soreness and tires and bike repairs and camping. This was in 1976, and that was the bicentennial, and a private organization created a bike centennial. They actually mapped out a route. We pretty much stuck to the route. You could join or become a member, and they gave you a card, and that entitled you, if you needed to--approximately every fifty-five miles, they set up a place to sleep, and there were thousands of people who had signed up. Few did the entire trip. Some did a hundred miles; some did a thousand miles. It started in Oregon, and ended in--well, we ended in Washington D.C. I think it actually ended in Maryland. But we went off the trail at the very end because one of the fellows lived in D.C., and we went to his house.
MG: That seems like an appropriate place to end it for the Bikecentennial.
SP: Yes, exactly. We felt that way, too. It was just a great bike trip. I did it with two other guys, and we're still very close. We started out doing the fifty-five mile, but then we got stronger and stronger, and our goal was to do a hundred-and-ten a day. So we'd skip one. So we averaged about a hundred-and-ten, a hundred-and-fifteen miles a day. We carried all our own tents and sleeping bags and food and spare parts, on saddle bags, panniers.
MG: I just recently drove from Los Angeles to Colorado, and I can't imagine biking that route.
MG: It is very strenuous.
SP: Yes, very strenuous. We started in Oregon, and we actually went north into Northern Idaho and then down through Montana. It wasn't straight, and we went through a lot of mountains. We went back and forth through the Rocky Mountains.
MG: Did you know at this point that this would be your territory with the ACLU?
SP: Yes, I did. Yes. I had been hired prior to that. In fact, my boss wanted me to start working in the summer, and I said, "Oh god, I've wanted to do this bike trip forever. Can you wait till September?" That's when she said, "As long as you go to the meeting in Philadelphia." So, I had to race to get to Missoula to catch that plane to get there.
MG: This was right at the time, I think, Aryeh Neier was leaving. I think he left in '78. Does that sound right? [Editor's Note: Aryeh Neier was the Executive Director of the ACLU from 1970 to 1978.]
SP: Yes, that sounds about right.
MG: And Ira Glasser came on. [Editor's Note: Ira Glasser was the Executive Director of the ACLU from 1978 to 2001.]
SP: Okay. Yes. I started '76, so Aryeh was my boss for a while.
MG: The other thing I want to clarify was you said your office was in Denver, but there already was a Colorado affiliate. So, I was curious about the relationship between those two offices, you and Dorothy, and then the Colorado affiliate.
SP: Yes. The quick explanation is that Dorothy had been a Director of the Colorado ACLU. She lived in Denver. When the national office decided to open up this field office, a regional office, they contacted Dorothy. Dorothy agreed to take the job but didn't want to move from Denver. So they allowed her to create a new office and we got along very well. We didn't share a building. So we didn't take any cases in Colorado because Colorado had its own staff and had a very good office right there, but we were located in Denver, and we took cases in the surrounding states.
MG: What were your impressions of Denver? Where in Denver did you live?
SP: First of all, the last place I had lived was the reservation. So moving to Denver was very different. Now, I had taken about a year and a half off in between. I needed to decompress and to travel a bit. It was during that time that I took my bike ride. I was doing a lot of bicycling. But now here I am in a city, and I never lived in a city before. The first place I lived I just rented a room in somebody else's house. Then I moved into a little larger place and then finally into another place. So I lived in Denver for twenty-four years. After six years or so, I bought a house and lived in my own house. I just loved Denver, especially back then, when it was much smaller than it is now. I really got into more bicycling and skiing, both downhill and cross country, found a wonderful group of friends and was just very active. Also, that's when I started writing my book, and that just took a lot of time.
MG: That is another question I have. It sounds like a book you were planning to write for a while, but it also tied in with Norman Dorsen's "Rights of" series. Did the two come together?
SP: I hadn't been thinking of writing the book, really.
SP: Norman called me up and said that they had already signed a contract with another fellow to write that book, and I happened to know him. Norman was dissatisfied with the speed that he was working, this other fellow and asked if I would co-author it. I gave it some thought, and I said, "Okay." I discussed it with this other fellow as to which sections I'd write. I don't know if it was months or a year later, but he ultimately said, "I don't want to write it at all." Then Norman asked whether I would write the whole book. In retrospect, I'm thrilled, but there were entire sections that I knew nothing about. I hadn't filed a water rights case. I hadn't filed a hunting and fishing rights case. It was some of the worst days I ever had. It's like, would you write a book about astrophysics when you just know nothing about it, and you have to learn it from scratch? It wound up taking me six years to write it. I get into it for a couple of months, and then I get sick of it, and I'd put it down. Also, this was back when they didn't have computers. I was just hand typing it. Each time I needed to revise something, I'd have to retype that page. It seemed like it was taking forever. [Editor's Note: The Rights of Indians and Tribes was originally published in 1983.]
MG: Then, there was an issue with the publisher too. It switched publishers.
SP: Yes, yes. That's right. Right. It was first going to be published, I forget, I think [by] Avon. I could be wrong. But then they switched to Bantam. Bantam changed things where it would only publish books that it thought would make a profit. Norman called me up, and I don't remember how many years into it I already was, but he said, "Stephen, I'm just so sorry about this, but there's no longer a guarantee that when you're done, this will be published. Do you have any way of getting testimonies from people saying that this would be a profitable book because clearly Rights of Women, Rights of Prisoners has an identified large clientele, but Rights of Indians, I mean, we don't know." So I was able to find some people, and it turned out to be the number one seller. I think every single year, it was the number one seller.
MG: Why do you think that was? Was it interest in the subject? Was it well written? All of the above?
SP: I think interest. Well, it was well-written, I think, and I've been told I was, but it filled a niche. There wasn't anything like it. Government agencies, Indian tribes, business people--it wasn't just Indians who bought the book; it was people who wanted to learn about Indians. I mean, it was being used in schools, Indian Studies programs. So it turned out to have a wider interest than the title might make it appear.
MG: I also wanted to ask why it was called "Indians and Tribes" and not "Indian Tribes"?
SP: Because they each have different rights.
SP: In fact, there's an entire chapter--the Indian Civil Rights Act that I just finished discussing gives you rights against the tribe. So I didn't want to just say Indian tribes because it did cover the rights of Indians. I didn't want to just say Indians because it covers many rights that tribes have. So it really was Indians and tribes.
MG: Can you talk about the research process and how you learned about the water rights case? [Editor's Note: Winters v. United States is a 1908 Supreme Court decision on the rights that Native Americans have to water.]
SP: It was very difficult because back then there wasn't Westlaw, where you could just go online and get this stuff. [Editor's Note: Westlaw is an online database and legal research site.] Fortunately, there was a publication called the Indian Law Reporter. Thank heavens for the ILR, the Indian Law Reporter, and I subscribed to it. Some people were hired just to scan and skim through the published court decisions that come out periodically and find those that deal with Indian Law subjects, and they would place them into a separate publication. So each month, I would get the new Indian Law Reporter, which contained decisions from both state and federal courts around the country, dealing with Indian legal issues, and I would just read them. Then those court decisions would cite to earlier decisions, and I'd go to the law library, and I would read them. So it was original research where I would just literally sit down and just read case after case after case and learn the subject. Then people had written on water rights, and I would get a law review article or a book, and I'd have to read it.
MG: I spent the time in between when we last met and today and going over all the newspaper articles and your cases. I don't know how you found the time to do all this research.
SP: I don't know either. No, really, I don't either.
MG: Because you took on so many cases.
SP: Yes. I honestly don't know how I did it. Currently, I have three or four cases. I averaged twelve to fourteen cases. I literally don't know how I did it.
MG: This is jumping ahead and maybe too personal a question, but is that why you got married a little later because you were really were so focused on work?
SP: No, I don't. Because I actually had a pretty active social life too. Yes, the reason that I got married later is just that I wasn't ready to get married. Yes, the two didn't have to do with each other.
MG: Maybe you should write a book about time management then. [laughter]
SP: [laughter] Yes, yes. For one thing, I worked very long hours and didn't sleep well.
MG: Can you just say more about the legal structure of tribal government. There are some issues in there I couldn't quite wrap my head around, issues of dual citizenship and things like that.
SP: Sure. Well, I could try to clarify any questions that you do have. First of all, there's more than five-hundred-and-sixty federally recognized tribes in the United States. The federal government has set up a system to give official recognition to Indian tribes, and there's more than five-hundred-and-sixty today, and none are identical. So some fall into large categories, but I can't tell you how tribal government works because tribes vary. Most tribes today have a government similar to the U.S. government. They have three branches--legislative, executive, and judicial. They have elections. Some are two-year, some are three-year, some are four-year terms of office. But today, by and large, the majority of tribal governments would look much like state and federal governments, but there are exceptions. Then the issue of dual citizenship, when you say dual citizenship, more than one tribe or being a citizen of a tribe and a state in the federal government?
MG: I am not clear on that.
SP: Your question. In 1924, Congress passed a law extending citizenship, U.S. citizenship, to all Indians born in the United States, and some had been made citizens in treaties with the United States before then. But from 1924 on, every Indian was a dual citizen. She or he would be a member of his or her tribe and a citizen of the United States. Some tribes allow you to be a member of their tribe even if you are already a member of another tribe. If your Mom is a Navajo and your Dad is a Sioux, you may qualify for membership in both tribes. Some tribes permit dual citizenship, and some don't.
MG: Okay. You were interviewed, I think, by The New Yorker when this book came out.
MG: In that interview, you talked about how you wanted to write a novel someday. Did that ever happen?
SP: No, it hasn't happened, and I still would love to write a novel.
MG: What would it be about?
SP: Well, I still have the same general concept where at least one of the characters would be Indian, so I would be able to discuss these issues. I've had many conversations with Indians, and by no means do I know Indians, but I do know how they feel on some issues because they told me. I also know some Indian customs that I think the non-Indian community would like to know about. So I have in mind a novel involving three or maybe four people who start out completely separate from one another, but whose lives intersect, the four of them, their lives intersect. I haven't figured out how, whether it's a business transaction or they're on a cruise ship or they're in jail. In some way, their lives intersect, and they become very significant to one another. That's really as far as I've gotten.
MG: That's an intriguing idea.
SP: Yes, yes.
MG: I just pictured a juvenile inmate, a warden, a mother, and a lawyer.
SP: Yes, right. One would probably be a single woman. Yes, different careers. One thing is that I kept a journal. I filled it out religiously in enormous detail. In fact, I've never shown it to anybody, but there's a wealth of information in there.
MG: Yes, you mentioned that last time and I was curious if you had a chance to look it over since we last talked.
SP: No, I haven't.
MG: You said you kept a journal for your bike trip too.
SP: I did. Yes, I did. No, I haven't looked it over.
MG: Well, it would be a good resource to write the book. Or if you want to add more material to your oral history.
MG: Last time, you said that there were nine states in the mountain region. I read in one of the articles, at one point, there were eleven, and it included Alaska.
SP: Right, right. I never wound up filing--I think technically it included both Alaska and Hawaii. Occasionally, I'll even say eleven states, but we did so little that I tend to say nine. They were allowed to call us up, and I would help answer questions, but I never wound up filing a case in Hawaii or Alaska.
MG: Did you eventually expand your staff, or was it just you for twenty-four years in these nine states?
SP: For a short period of time, maybe two years, a fellow was assigned to our office, who was an employee of the ACLU National Prison Project--Michael Livingston, and he and I still are very good friends. He lives in Hawaii, so we hardly ever see each other, but he and I became very close friends. Maybe he was there for three years. I'm not exactly sure. But that was the only time where I had another lawyer in the office, and he only filed prisoner' rights cases. He left for personal reasons, and they never replaced him. I was funded from time to time for a paralegal. So every once in a while, I would have a paralegal, but there was never another lawyer there.
MG: It's an enormous amount of work for one person.
SP: Yes, it was.
MG: Did it also kind of give you the flexibility to pick and choose which cases you were pursuing?
MG: It also seemed like there were a lot of cases where even the threat of a suit or the ACLU's involvement changed the course of the issue.
SP: I did more good by sending threatening letters than any of the lawsuits I filed. I mean, totally. It's like the joke [about] hitting the horse with a two-by-four to get its attention. The lawsuits created credibility. Once I sued a sheriff in Idaho or in Utah, or in Wyoming, if I then sent a letter to another sheriff, I had gotten their attention. I did way more by--and I still do today. Letters from me, in some areas, will produce shocking results. It's not just me, by the way, but the ACLU. It's not me. It can be in some communities, like in Wyoming. If I send a letter to the Attorney General's office in Wyoming, people know who I am, and they know that I've successfully sued state officials a lot. That's not to say that they'll always do what I am asking them to do, but I usually get answers right away.
MG: There was a quote I saw, I forget where and from who, but it was a warden of a prison being asked why they were spending so much money to update the prison, and he said, "Well, I wanted to get Stephen Pevar off my back."
SP: [laughter] Okay. Yes, that's possible.
MG: You had sent a letter at that point.
SP: Yes, okay.
MG: A lot of my notes are probably out of chronological order.
SP: Oh, fine. Yes.
MG: But if we could go through the cases, and if there is anything I miss or anything you want to tell me about, please do not hesitate.
MG: I have a note that you sued a sheriff in Idaho for beating up a prisoner and throwing another prisoner in solitary because one prisoner had tried to write a brief for the other prisoner. Where did that happen? What were the circumstances were around that?
SP: Well, first of all, that fits at least two cases that I litigated. I filed a number of retaliation cases and a number of access-to-the-courts cases. The First Amendment contains a number of clauses: freedom of speech, freedom of religion, and the last clause is the right to petition government for readdress of grievances. Notice the right to petition. So some seventy-five years ago now, the U.S. Supreme Court said that as to apply to institutionalized persons, whether in a mental hospital, a jail, a prison, the right to petition means that because you're not a free person and you will only have access to petition, to contact a court, if the people with the keys provide you with a stamp, an envelope, and writing materials, then they must do that. They cannot retaliate against you for exercising for your right to petition. That is known as access to the courts. So, the right to petition and access to the courts are really synonymous, but very often with respect to prisoners, you see access to the courts. I have filed a number of access-to-the-courts cases because jailers don't like to be sued, and one way to stifle complaints is by not letting prisoners have pens, writing papers, throwing their letters out. You hand it to the guard, and they throw it out. Or my letters mysteriously disappeared. So I have filed a number, maybe ten, access-to-the-courts cases. With respect to the beating--
MG: It does not say here.
SP: Okay. Well, depending on what your note refers to, I have also filed a number of failure-to-protect cases. In fact, the one that I just received that huge attorney fee award was a failure-to-protect case. We sued Corrections Corporation of America, CCA, because they had a contract with Idaho to operate the largest men's prison in Idaho, and it was a brutally violent prison. The Eighth Amendment guarantees everyone protection against cruel and unusual punishment, and the Supreme Court has held that if prison officials don't take reasonable steps to protect prisoners from being beaten by other prisoners, then that beating constitutes cruel and unusual punishment. You're sent there to deprived of liberty, not to be beaten up. So that was a perfect case, or a perfect example, where we decided to sue the CCA prison because they weren't doing what they needed to do to protect prisoners from being assaulted by other prisoners.
MG: When did that suit start? What were you seeing?
SP: Well, we filed that--I want to say 2010.
MG: Okay, recently.
SP: Yes, yes. What we were seeing is the state of Idaho--first of all, we were getting complaints from--this particular case, I had already been getting some complaints about violence within this prison. But the way this one just happened to start is I was contacted by--I forget what her title is, but she worked for the federal district court, and it was her job when prisoners filed what was called pro se cases, that is their own cases without an attorney, she would try to find attorneys to take those cases for free, pro bono. So a prisoner, by the name of Marlin Riggs, had filed a pro se case in which he was claiming that he was in this CCA prison, that a group of prisoners came up to him and said, "If you don't start paying rent," and that is the word, rent, "We're going to beat the crap out of you." Rent was, he would need to order commissary--chocolate bars, whatever--and give them to this gang that was literally controlling the housing unit in which he lived. He had seen what they had done to a number of prisoners, and he knew that his day would probably come, and sure enough, it did.
Prison officials knew this was going on because they had heard about it. They had carried some people out on stretchers. They knew that this was happening and they weren't doing anything about it. So he was given a couple of days to come up with this candy and cigarettes and so forth, and so he then went to this lieutenant, and he said, "Oh, man. You got to help me out here. This is the last day. I can't get this money." They told him to go back in and not to worry about it, and they'll be watching him. Within ten minutes, he almost died from this beating. So he filed the pro se case against CCA for failure to protect, an Eighth Amendment case.
The court administrator called me up and asked if I would be interested in taking that case. She knew me because I had filed cases. I had probably filed ten cases in federal court on behalf of prisoners. So I was pretty well-known in the federal courthouse for representing prisoners. So I went out, and I interviewed him and found that he had a very good case. However, the ACLU rarely takes individual damages cases. It's just not productive for us, unfortunately. So I said, "Well, Marlin, this is happening so much in this prison. I would consider taking the case if you would allow me to add a class action seeking injunctive relief, a broad systemic relief on behalf of everybody. We would keep your damages claim, but really, in order for me to justify spending so much time, I can't just do it to get you money. I have to piggyback a class action case alleging inadequate training and supervision and protection generally." He said, "Oh, I'm even willing to drop the damages case if need be. I'm not in it for the money. This is exactly what I want. I just don't know how to do it." I said, "Great." So we then did do that. We amended the complaint, kept his damages claim, and added a class action.
So to make a long story short, we engaged in months of discovery. We asked them to produce the videos of these beatings, the investigations that they did, the number of people that were assaulted, and they actually did keep pretty good records and videotapes of these beatings, because they had cameras. They would show all of a sudden, two guys would jump somebody, and it would take six minutes for a guard to get in there. You could see the blood on the floor. So CCA realized, in my opinion, that they were going to lose, and they agreed to settle. So we created a settlement that they needed to make a number of improvements, including hiring more staff, and to log and to send to the state a log of all the staff and where they worked to make sure that they did that, and they had to pay us attorney's fees.
So everything was pretty much going well, except that periodically, I'd get letters from clients, from prisoners, saying, "Stephen, I know that the consent decree, the court order, requires them to have a guard here 24/7 in my housing unit, and there wasn't one all last night." I'd write to them, to CCA, and they'd send me a log showing that so-and-so was assigned there. I'm going, "I don't understand this. Maybe my client was sleeping, or maybe the guard was off in the corner or something." To this day, I still don't know who sent it, but we then get a four-page, single-spaced typed letter, from someone who had to have been a guard because he or she wouldn't have known this, listing specific dates and times when guards were supposed to have been there when they were reported by CCA to be there. She or he said, "Get their timesheets because they weren't even in the building." It turned out that CCA was falsifying these logs.
SP: We first just looked at a seven-month period out of the two years, and we found over four-thousand hours of missing guards. Four-thousand hours. Entire shifts, there was nobody there, and yet they reported as having been there. So we filed a motion to hold them in contempt, and the judge went ballistic. Because CCA acknowledged, "Yes, your honor, we didn't know anything about it. These people were doing it." Bullshit. The warden claimed he didn't know. Either he is lying, or he is just incompetent because he also said he came in at night periodically and walked around. It's like a dentist not noticing that you're two front teeth are missing. How could you not know that all these guard posts were vacant? You're walking into housing units, and there's nobody's there. How could you not know? Anyway, we filed our contempt action; the judge expedited it. We held a two-day hearing. The judge found them in contempt. We then filed a motion for attorney's fees, and he used a rare provision, but it gave me a two-hundred percent multiplier. It doubled my fees. So CCA appealed both the contempt and the fees and then lost, and that's the decision I sent you.
MG: That is pretty ballsy to appeal when they're so clearly in the wrong.
SP: Yes, stupid. Right.
MG: Well, congratulations.
SP: Yes, thanks.
MG: That was nice to see, and then I was eager to hear the story behind it.
SP: Right, that was the story behind it.
MG: We have not gotten there yet, but has your position changed since you are on the East Coast with the ACLU?
SP: Well, yes, depending on how you define position. I'm still on the national staff, but I am doing some different work. When I started with the ACLU, maybe there were twelve lawyers on the entire legal staff. You may be able to find that even better than I. Now, there's over a hundred, and we're compartmentalized. I've been assigned to a particular project, the Racial Justice Program, and I'm supposed to take just racial justice issues. They do allow me, on occasion, to take some other issues, like I have a voting rights case right now. But by and large, it's racial justice.
MG: This is skipping ahead, and we'll have to jump back. But I just finished reading Just Mercy by Bryan Stevenson, who runs the Equal Justice Initiative.
SP: Oh, yes.
MG: It seems like in the last decade, there has been a lot of momentum in the courts for juvenile imprisonment and death penalty cases. I was curious if you saw that kind of momentum in your own work in racial justice.
SP: Yes. Well, the ACLU has always been doing that, but there's definitely more litigation nationally around that. The ACLU has gotten some large grants in recent years to do even more litigation in that area.
MG: Does any of it involve exonerating prisoners who have been on death row or have life sentences?
SP: That's a good question. I don't know for sure. Much of it has--in fact, we recently got a sizable [grant], in the millions, to look at alternatives to incarceration, which is at the other end of exoneration, to try to reduce the number of people who are going to jails and prisons. The United States has five percent of the world's population and twenty-five percent of the world's prisoners. So, we're just overly incarcerating, and there's a far saner way of--so have received large grants to assist with that.
MG: Good. Backing up a few decades now, this article, which was written in 1979, mentions you were threatening to sue a Cheyenne Sheriff who liked to cut the hair off of hippy inmates.
SP: I don't know if I brought that or not. I think he stopped doing it, but I'm quite sure I didn't file that.
MG: Do you remember who the sheriff was or which prison? What was happening?
SP: I think it was the sheriff in Cheyenne, but I don't remember for sure.
MG: Was he doing other things that he should not have been doing?
SP: Oh, yes. We wound up suing that jail. I think I filed an access-of-the-courts case against that jail. Yes.
MG: Also, around this time, you challenged a local school board that had banned One Flew Over the Cuckoo's Nest.
SP: That is actually was a case I inherited.
MG: Okay, because you did not do too many banned book cases.
SP: No. It seems like I did do one other, but that was a case in Idaho.
MG: What was the story, and how did it resolve?
SP: Yes, I don't remember.
MG: That is okay.
SP: Yes, I don't remember how it was resolved, but that was one of the ones that I did inherit. I think it was resolved not long after. I'm don't even remember what effort I made in that case.
MG: What was the issue with the book?
SP: The language of the book. Idaho is heavily Mormon, a very religious state. Probably swear words.
MG: Another thing that was mentioned in the article was the settlement with the Union Pacific. I was curious if you could talk about that case.
SP: Yes, okay. I need to look up that one about the Cuckoo's Nest. Anyway, I look back at the railroad case as one of the more important cases I've ever filed. We wound up winning in the State Department of Employment or whatever the title was, but it was on behalf of a Hispanic and a black [man], who wanted to do their job with the Union Pacific Railroad.
MG: Was it a promotion that they did not receive?
SP: Promotion and racial slurs virtually every day. I mean, this is in the late '70s, I guess. The things that they were telling me that people [said]--"Let the nigger do it," or "Send the beaner to do it." Daily. It was just the way that people made jokes out there, daily, and supervisors were doing nothing to stop it. It turned out to be an easier case to win because they were just doing it blatantly, and these guys never got promotions. They always had to do the worst jobs, the longest assignments. They're the ones who had to clear the snow. So we filed that in the--I'm trying to remember if we filed it in court. I think we filed it with the Human Services Commission or whatever. The commission ruled in our favor and found Union Pacific [-was discriminating]. People were giving us very little hope for that because the State of Wyoming didn't want to upset Union Pacific. It was one of the bigger employers. But they did; they found against Union Pacific.
MG: What was the result for those two men?
SP: I can't remember if they got a promotion or they had to be seriously considered for it. Both of them ultimately wrote and told me that things were improving for them and that the racial slurs had stopped and things were a lot better.
MG: Good. It seemed like there was a lot of discrimination towards the ACLU in these small towns. You and your clients received so much hate mail. The people who participated in these suits, really put themselves out there and then became potential pariahs in their community. It sounds like a lot your cases had good outcomes and rulings. But was there backlash, too?
SP: Yes. My clients were often incredibly courageous and were willing to stand up. All of my church and state cases--and I filed a number--were on behalf of people who were in religious minorities in their communities. Out there, if you wanted to make friends, that's not how you did it. You're absolutely right. Many of my cases were very unpopular, and not just for me and the ACLU, but more so for the client who was living in the community.
MG: Would you explain that to them going into this, that this is going to be difficult?
SP: Oh, they knew. I didn't have to explain that to them. Usually, the reason that they contacted us is that they just couldn't stand it anymore. In fact, that reminds me of the other gift that I got that I wanted to show you. This is a perfect example.
MG: Oh, my gosh.
SP: This is a quilt.
MG: That is beautiful.
SP: Yes. Isn't it? I had told the clients that I was Jewish, so they put that there.
MG: Let me take a picture real quick.
Laurel Hoskins: You want to take it outside where the light is? [Editor's Note: Laurel Hoskins is Stephen Pevar's wife, and present for this part of the interview.]
MG: I think I can figure it out.
SP: I'll explain the symbols.
MG: Okay. Who made the quilt for you?
SP: My clients made it. They were avid Christians who lived in a predominantly Mormon community.
MG: In what state?
SP: In Idaho.
SP: Each of the families had a son or daughter in the senior class, and the school board voted to move the high school graduation into this recently constructed, gorgeous, Mormon Church that was air-conditioned, had an auditorium that could seat three times as many [people as could the high school auditorium]. But it was the Mormon Church, and my clients were not Mormon, and they did not want to go to the Mormon Church to see their son and daughter graduate high school. So there were four Mormons on the school board and one non-Mormon. They took a vote where to have it, and the four Mormons said, "Yes, we're not going to have any religious services there. We're just going to use the auditorium and this way we won't have to give tickets; it could hold everybody. It's going to be in May or June, and it'll be air-conditioned. This is just a perfect place." But my non-Mormon clients just said, "No way."
They were sick and tired--parent-teacher things always had to be on certain nights because the Mormons met other nights. I'm not criticizing Mormons, but they had community events that excluded the non-Mormons, and my clients just put their foot down. So we filed suit. The first time, and because this vote came maybe ten days before the graduation, there really wasn't a lot of time. They called me up. I dropped everything and filed a lawsuit on their behalf, wrote a brief, the judge set it for argument the day before graduation. I flew out there and had this hearing. I called to the witness stand my clients, who explained that to them it's a religious building, and "I don't care what they say, it's religious and I just am not going to go." Then I called the superintendent, and I said, "Now, I know you haven't set up the chairs yet in the high school auditorium, but if Judge McNichols here orders you to have this graduation in the high school auditorium, can you do it at this late hour?" He goes, "Yes, if we're ordered, we can do it." My closing argument is they can do it, and they must. The judge agreed and issued this order [on] the night before the graduation. Well, on the panels [of the quilt].
MG: I can show you this picture.
SP: Okay. I'll show you something that the average person wouldn't know looking at it.
MG: You might have to say it for the audio.
SP: Yes. You're not going to be able to see that.
MG: I can scooch in.
SP: Oh, here it is. I just want to show you this one particular panel.
SP: I didn't realize it either until they told me. This one was stitched by the woman who was the school board member. She resigned. School board, minus one. So each family stitched one panel.
MG: This is an incredible amount of work.
LH: Look at this one.
SP: Right, right.
SP: This is the school board member.
SP: This was hers. Constitution. But school board minus one.
SP: Yes, very clever. This was the date of the hearing. Thank you, Stephen, for April 21, 1980, Boise, Idaho. Anyway, I'm going to put this back up in my office.
SP: Yes. These people, this swings back to your question, they knew how unpopular it was, and it wasn't a question of popularity. They already were keenly aware that they were in the minority, and they had bumped heads against the majority a number of times.
MG: As difficult as it was to put up with the bullying and the pushback from the community, did it help make the point that there's this religious majority that is intolerant of their perspective?
SP: Yes, right. They just didn't get it. I see this time and time again. Regardless of what the religion is, people just don't get how minorities might feel. It's not just religion. Right now, we have a World Series, and one of the teams has a racist logo on its shirt and its hats, and they don't get it how offensive that is. [Editor's Note: Mr. Pevar is referring to the Cleveland Indians, who were defeated by the Chicago Cubs in the 2016 World Series. Until 2018, the Indians' cartoon logo was Chief Wahoo, a controversial caricature of a Native American.]
MG: I think a lot of people's argument was, "Hey, come on. This is a time-honored tradition."
SP: Right. No big deal.
MG: In a lot of those letters, it seemed people were just completely missing the point, and inadvertently helping support your point.
SP: That's right.
MG: And some of them were so cruel.
MG: Was that difficult to deal with?
SP: Yes, it was difficult to deal with, in the sense that--it was never discouraging. It never made me think, "I don't want to do this. I'm tired of doing this. I'm throwing in the towel." But it was difficult in realizing that so many people--the work is never done. You just have to keep plugging away.
MG: I feel like there is a question about Donald Trump in here somewhere. How much more work will you have to do in a couple of weeks if Trump is the President?
SP: Even more, yes. One of the best things, from my perspective, about having a [Hillary] Clinton presidency are the judges she'll appoint. The Supreme Court might suddenly become a middle of the road or a liberal court for the first time in fifty years. I mean, that's huge.
MG: Yes. I wanted to ask how you are forming relationships with your clients because it seemed like they're really close relationships. I interviewed a lot of people in the ACLU, and I think your connection with the clients seems the strongest while having the least physical or geographical access to your clients. It was a lot of phone calls. Often, you would meet them in person for the first time at the trial.
SP: You know what? I have heard people say that also. I'm guessing now, but apparently, a lot of lawyers--I don't want to say forget the client, but they take a case, and they're in it for the issue. That's not to say that I'm not, but I never forget the client. I constantly will update them and call them or maintain contact. There's a fellow who is a ballot access expert, and he's helping us in this voting rights case that I currently have. One of the plaintiffs is almost challenged. She has a very difficult time not only just understanding the issues, but she'll challenge us, she'll accuse us of making mistakes. She can be very irritating. I have gone out of my way to send her letters to let her know what we're doing. This fellow, the expert, is in his seventies, and he's been doing litigation for as long as I have. He sent me a private e-mail. He just said, "Stephen, I have been involved in hundreds of cases. I have never seen an attorney try to work with any client, never mind an irritable client, as much as you have. Hats off to you that you have that patience." I guess I always have. This is their case. This is not my case. It's their case. So, I do have close relations. I'm very sorry that I don't know where ninety percent of my clients are today. So, in that respect, once the case is over, I have tended to not maintain the contact. But while it's going on, I do.
MG: How do you get a client to trust you over the phone so quickly? How do you develop that rapport?
SP: I'm not sure that I'd say that they trust me, but in most instances, merely the fact that I'm willing to help them establishes credibility. I'm not charging them. I could turn it around and just say, if you were in dire straits and someone offered to help you--your ship sank, and there's somebody coming to rescue you, you'd tend to think that's a pretty nice person to stick their necks out and to help you for no cost to you. So I benefit from the fact that I'm with the ACLU, and I'm offering assistance when no one else would.
MG: A lot of these cases that we are talking about were in the late '70s and early '80s. I am curious if the Skokie incident had any impact on your work because the ACLU was at a little bit of low point in terms of popularity at that point. [Editor's Note: National Socialist Party of America v. Village of Skokie was a 1977 case where the ACLU defended a neo-Nazi group's right to free speech to hold a rally in Skokie, Illinois. The ACLU won the case, but the group did not hold the rally.]
SP: Well, it had an impact in a couple of ways. One is I was afraid of being fired. We lost twenty percent of our members and twenty percent of our dollars, and we let go of a lot of people. Now, I didn't make any different decisions, but I was on edge for quite a while, and that has happened twice. Then and something else happened where we suddenly lost--oh, yes. Maybe ten years ago, and it was in the press, and you may come across it, but a fellow who may have been and probably was our largest donor--twenty-two million dollars. Want to take a short break?
MG: Sure, we will pick up with the donor.
SP: I'll just finish this one thing.
SP: We lost twenty-two million dollars that we have been relying on for many years in a row. The national director, and I think it was Anthony Romero at the time, sent a letter out just telling everybody what had just happened and saying, "Unfortunately, there are going to be some staff reductions." So several good friends of mine were fired. But [with] Skokie, the ACLU didn't change anything. In fact, not long after Skokie, I filed a case on behalf of the Ku Klux Klan. So, we didn't change a thing. It didn't make us timid or reluctant to take on cases, but we knew the cost.
MG: Okay. Well, we will take a little break.
SP: Yes, yes.
MG: Let me turn this on. I had glanced over your notes, and there are some cases involving a Means. Is that Russell Means?
SP: I think I told you the story about how Russell Means had [treated me] on the reservation. Years later, I represented him, and that's what this one is.
MG: I did not know you represented him.
SP: Oh, yes. Well, I actually was called in in the capacity as an amicus, but technically, I represented him, although he had a separate attorney. But I was the one who argued the case. This was where he had been arrested, and he was out on bail, and one of his conditions of bail was that he not participate in any demonstrations.
SP: And he did participate in a demonstration, and they were seeking to revoke his bail.
MG: Was it more of a gathering or meeting?
SP: No, I think it was a demonstration. A march, and it was entirely peaceful.
The state wanted to revoke his bail for participating in a peaceful demonstration, and the federal court ruled in his favor, saying that you cannot retaliate against someone who is engaging in a First Amendment-protected activity. So that's what that U.S. Ex. Rel. Means v. Solem. Solem was the warden in the prison.
MG: And he participated in a hunger strike?
SP: I think it was a demonstration. They were a march.
SP: I could be mistaken, but I think it was a march.
MG: What was different about the second case?
SP: You mean, South Dakota v. Means? I think we tried to win the case in the South Dakota Supreme Court and lost. So we filed suit in federal court and won.
MG: Okay. I see the Biglieri case on there, and I had a lot of questions on that. Can you tell me the story behind that case?
SP: Sure. Were there articles about it? Is that why?
SP: Clyde Biglieri was a member of the city council in Reno, I think it was, but he was a city official. I think it's called the city council. A very damaging grand jury report was issued that recommended charges be filed against this one person, but the grand jury did not find sufficient criminal conduct to warrant charges filed against Biglieri, but it just slammed him. It was a very interesting due process question about whether the government can take an action where they issue an official report criticizing a citizen without giving that citizen an opportunity to confront, to say anything. They didn't show him the report and ask him if he wanted to write a rebuttal that would then be attached to the report. I mean, it was a kangaroo proceeding. He contacted the ACLU, and we decided to challenge this, and we actually won--I was pleasantly surprised--in the Nevada Supreme Court, in which the court ruled that it did violate his constitutional rights to fairness, to due process, by being criticized in a Grand Jury Report where he didn't have the opportunity to see the report and write a dissent, something that would then be attached to the report, the government shouldn't be able to do that to people.
MG: What did the report say about him?
SP: It insinuated that he was in cahoots with a guy who actually was charged and that he was engaging in criminal activity. I forget what the activity was, but it was very damaging to his reputation.
MG: I thought he was also a motel owner, and then maybe there was something involving a brothel.
SP: That's the other guy. That's Conforte, Joe Conforte.
SP: Yes, he was the brothel owner.
MG: And you had worked with Confortei on a previous case, or the ACLU had? Maybe it was Richard Siegel.
SP: Okay, that could be. Yes.
MG: Okay. What was the outcome of that case?
SP: I believe the Supreme Court held--I mean, it's kind of a Pyrrhic victory, but it's all that he could get. It ordered that the report be withdrawn. It was already out in public, and the newspaper made a big deal of it, but it was officially withdrawn on the grounds that it shouldn't have been released. This was all Biglieri could get, and he was thrilled. He felt vindicated.
MG: Was Nevada one of the states in your region?
MG: Did they previously have an Executive Director and an office?
SP: They had an Executive Director. They didn't have a staff attorney.
MG: Okay. So for two of the nine states you worked in, they did have Executive Directors?
SP: All of them ultimately had EDs.
SP: Like, Idaho eventually got one. Most of them ultimately did. But none of them had staff attorneys.
MG: So you served as their staff attorney.
MG: Helen (Heenan?) had resigned in 1980. Was she someone you knew?
SP: No. [Molly: I still don't know who she might be.]
MG: I think she was someone who after the Skokie incident happened, she was one of the people who was let go or resigned.
SP: I don't even remember her. She resigned from where?
MG: From Reno, or maybe the office moved to Reno. I am not sure.
SP: Okay, but the Nevada office?
MG: Yes. They just had a three-thousand-dollar a year budget, which does not sound like much.
MG: Do you want to talk about some of the Christmas carol cases?
SP: Sure. Yes, there was only one that I brought--Christmas carols. We brought it in Sioux Falls, and we challenged a number of different programs. Ultimately, the district court found that some programs crossed the line but upheld other programs that we felt also violated the separation of church and state. We then appealed that to the Court of Appeals and lost that two to one, and that's one of the few cases I've ever lost. Then we filed a petition for cert, asking the Supreme Court to review it. Marshall and Brennan dissented[from the] denial of cert. So we didn't get four justices who wanted to hear the case. In later years, I learned that the lawsuit had a tremendous impact, and it actually did result, not just in Sioux Falls but throughout the country, in making people aware that you can't do some of this stuff. They had mangers and little children. It was a religious program. If you walked into a church, you'd see something like that.
MG: A lot of these schools countered with, what if we have a variety of religions represented?
SP: Right, and we just said that compounded the problem. You can't have every program, and it just makes things worse. Now, most schools or many schools have basically secular--"Jingle Bells" kind of thing or they'll sing a number of different songs. But these were plays and mangers, and all of them were very religious.
MG: You had an experience growing up with Christmas carols in your school, and you asked to be excused from participating. Does that ring a bell?
SP: Oh, yes. It rings a big bell.
MG: Does it ring a jingle bell?
SP: Right, yes. [laughter] Not that I have ever been very Jewish or aggressively Jewish, but I'm proud of being Jewish. I do recall not enjoying being in these Christmas programs, and there were times where I was asked to play a role, and nobody gave it a second thought, and I just objected. So yes, as soon as this guy called up and said that--no, the guy who called was an atheist, but we ultimately found other people who lived there.
MG: Are you talking about Florey?
SP: Yes, Roger Florey was an atheist, but we found other people who also objected.
MG: I read that your teacher said something like, "If your religion can't take it, you ought to look more closely at religion."
SP: Yes, that's right.
MG: There were a number of cases--maybe you were not involved with this because this was Texas. One involved a Jewish woman seeking bans on prayers in PTA [Parent Teacher Association] meetings and football games.
SP: I wasn't involved in the Texas case. I have been involved in a number of religion cases--opening up town council meetings with prayers. I've sent a lot of letters out. I'm trying to remember. Now, I did file cases dealing with what we called school athletic prayers. I've had a couple of those cases. One, on behalf of a girl who was a member of the basketball team in her high school in Idaho or Wyoming. I think it was Idaho. The coach of the team got the entire team together, and it was no more than a minute, but they prayed. She didn't want to participate and [it] really ostracized her from her other teammates and the coach, so we filed suit, and they stopped. Now, the girls themselves, if they wanted to have a prayer, they can, and if the coach wanted to have prayer with the girls off-campus, they can. What was offensive, under the First Amendment, was having it on school property with the coach because then it gave an official stamp of approval. So they stopped.
MG: There are also a number of nativity scene cases, too. Were you having better luck getting people to take those down than you were able to get them to remove Christmas carols from the programs?
SP: I don't think I filed any nativity scenes, did I? We complained about it. I don't think we filed any suits. The national office wasn't as keen as I was in these cases. We had so many cases to choose from. Since my boss was not that keen on it, we didn't choose those. But I remember writing a letter to the Governor of South Dakota about them. They would put a manger in the center of the rotunda of the state capitol building every Christmas. So I did complain about a number of these, but I didn't wind up filing any other lawsuits about it.
MG: Was the Florey case the one where the Presbyterian Church joined in?
SP: Yes, it was.
MG: That was kind of interesting because they had different reasons for joining the suit.
MG: Can you talk about that?
SP: Yes. Well, whereas Roger Florey objected to it because it was too much religion, the Presbyterians filed an amicus brief because it was not enough, or I should say, they objected to these school programs because it secularized religion. They feel that religion should be in the church, as does Roger Florey believe. But their point is that it demeans religion to have kids put it in a play [in public school]. One reason why people are--and this is what they wrote in their brief--losing religion is that it's just becoming so popularized and demeaned that it's losing its sacredness. So, they were strongly opposed to these high school programs in which their religion wasn't treated with the respect it should.
MG: Can you talk about the witnesses involved in this case? Who was called to speak on both sides?
SP: I'm pretty sure Roger testified, and a music expert did. I'm pretty sure. Gosh, I don't remember exactly, and I'm pretty sure it was just a one-day hearing. Then they called school officials to say, "Well, we're not doing it because of religion. We're doing it because it's seasonal." Yes. Unfortunately, the judge tried splitting it in half and saying, "Well, this one goes too far but, these others are okay."
MG: Was this the case you got the angriest mail from?
SP: Yes, yes, and then I probably showed you that one from William F. Buckley. [Editor's Note: William F. Buckley lived from 1925 to 2008. He was a conservative author, television host, and commentator.]
MG: Yes. He wrote a number of articles that were ridiculous.
MG: But the vitriol in some of these letters.
MG: One woman saying, "If atheists want a school, they should have their own school." She said in the same letter that she has a kid in public school and a kid in Catholic school, so I thought, "Well."
SP: Right. [laughter] Right, there's your solution. If you want them to have religion, then put them both in Catholic School.
MG: Was 1979 a tough year for you? It seems like there's a lot of public outcry over this case, and it seemed personal.
SP: No. I think I enjoyed it. I've always enjoyed taking on these issues. So, it was exciting. It was challenging. I got on national TV. No, I don't think so.
MG: You were very articulate and effective in your arguments. There was one article I read where it was an interview with you and a religious expert and maybe a reverend. I felt like if people read what you had to say, they would get it.
SP: Well, thanks.
MG: Before we took a break for lunch, you mentioned that you had represented the Ku Klux Klan in a case.
MG: I was curious about the circumstances around that.
SP: Yes. Well, first of all, there's a wonderful book, and I have a copy downstairs. Elaine Alderman and Caroline Kennedy wrote a book in which they selected one case for each right in the Bill of Rights. [Editor's Note: Caroline Kennedy, the daughter of President John F. Kennedy, and Elaine Alderman wrote In Our Defense: The Bill of Rights in Action in 1991.] They selected this case. It's the first case in their book for free speech. I mean, it's a great case. The case was that the KKK in Kansas City, Kansas, wanted to have a program on the public access channel of cable TV. Most communities, when they issue a license to a cable company, require the company to have one or two public access channels where, first come, first serve, if you want to play your guitar or read your poetry, you just sign up, and you do it. The cable company makes that channel available in exchange for getting this lucrative contract.
So, the KKK went up to the local cable company there and said, "We want a half an hour show," and they refused to do it. They were very outspoken about it. "We don't like what you're going to say," and it was totally based on the content of their show. So the Klan contacted the local ACLU, and they tried to find a lawyer locally, and it was just so unpopular that they couldn't. So the ACLU sent a memo out to everybody, to national staff, asking for a volunteer, and I jumped at the chance. I said, "Sure. Yes, I'll file it." I was in Denver, and Kansas wasn't one of our states. No, it was one of our states. Anyway, they wanted someone to file the case.
So I then called up the plaintiff, and I think his title if I'm not mistaken, was the Grand Cyclops; that was the title of the guy. I just said, "Well, Mr. Cyclops, what is it that you want to do, just so that I have an idea?" He goes, "Well, we want to tell people about our positions on the issues." I said, "Okay, well, everyone else is allowed." I researched it, and I felt that they had a good claim, so we agreed to represent them. I said, "Well, would you send me some material so that I have an idea of what you want to do." I didn't tell them that I was Jewish. So, he sent me a box. Now, the Klan issues, I think it's once a month, a newsletter called Race and Reason. He sent me, among other things--handouts and newspapers--he sent me back issues of Race and Reason. The one on the top--and I'll never forget this--was a picture of a guy with a Star of David on his sweater, a long nose, hanging by the neck from a light post. The caption read, "The only thing wrong with Hitler is that he didn't finish the job." Obviously, it was infuriating, but it didn't dampen my desire to represent them because they were right. They were being denied [access to the cable station] based on their speech, and none of us can afford to let government do that.
So, we filed suit, and I was lead counsel. I argued the case. The key legal issue, because everyone recognized that this was content discrimination normally not permitted under the First Amendment, was whether or not private cable companies were subject to the First Amendment because their main argument is that well, private people can discriminate based on content, which is definitely true. You don't have to allow Republicans into your house. You could even have a sign, "No Republicans." It's yours. So that's what the cable company was saying, and the court agreed with us that because they're under a contract with the state or the city and that they wouldn't have gotten this license otherwise, that this is what is known as state action. It's not just private action. It's state action. So as soon as we won that legal issue, then we would have to win the case. The judge ruled in our favor on that issue, and the city decided not to appeal. So, they called up, after the judge's decision, and they said, "We're not going to appeal. They can come and have their half an hour."
So I then called the Grand Cyclops up, and I said, "Well, as you know, we did win, and they're not appealing. You could go down and have your half an hour, whatever you want. The case is over. I'm going to be seeking attorney's fee, but otherwise, the case is over." I said, "Now, I do want to tell you something." He goes, "Oh, what is that, Mr. Pevar?" I said, "Well, I'm Jewish." You could hear a pin drop. He goes, "Oh, I didn't know." I said, "Well, I didn't tell you, and it's not important. It made no difference, but I just want you to know how offended I was." He goes, "Well, thank you." He even said, "Well, we don't even mean all of that." I said, "Well, then you shouldn't say it." Anyway, if you remind me, I'll go down and get the book, but it's a wonderful story. They went out and interviewed all of the people involved. They interviewed members of the city council. The city council had voted also to keep them out and to support the cable company's decision.
MG: Did you ever tune into the show?
SP: They never did it. They never went to do the show. Yes. Right, right. Whether they did years later, I don't know, but I didn't understand it. They never went back and actually did the show. [laughter]
MG: I would have been curious about what the content was.
SP: Right, right. Me too.
MG: You were also involved in some Ten Commandments displaying cases.
SP: Yes, right. I was. The United States Supreme Court ultimately ruled that you cannot show the Ten Commandments in public school, but our case was filed about a year or two before the Supreme Court case, and the federal district court in North Dakota ruled similarly that a teacher could not post the Ten Commandments on a classroom wall.
MG: There was a woman going around, Wilma Belcourt, who was enforcing this 1927 law that I think was unusual for North Dakota.
SP: That there be the Ten Commandments?
MG: Yes. She was going around making sure that the Ten Commandments were in classrooms. She was enforcing this law.
SP: I forgot that. I had forgotten that.
MG: I do not know how this case came to you. One of the plaintiffs was Benjamin Ring, who was a Professor at the University of North Dakota. [Editor's Note: Benjamin Ring lived from 1925 to 1992. He was a philosophy professor at the University of North Dakota from 1962 to 1990.]
SP: Someone came to us. It might have been Benjamin Ring or a parent, but Ring became one of the plaintiffs anyway.
MG: What was the Supreme Court case a year later?
SP: Virtually, an identical issue. I'll remember the name. Stone v. Graham. Same issue from a different school district. The court ruled that, just like ours had done, that you cannot post the Ten Commandments on a classroom wall. [Editor's Note: Stone v. Graham is a 1980 Kentucky court case where Sydell Stone petitioned against a state law that required the posting of the Ten Commandments in public school classrooms. James Graham was the State Superintendent of schools.]
MG: There are a couple of others. There is a menorah case too. But I think this might have been in Philadelphia.
SP: Okay, that wouldn't have been my case.
MG: Okay. Were you collaborating with other people in the ACLU on these similar kinds of cases in terms of arguments?
SP: Yes. Not necessarily all of them, but again, it was still a fairly small organization. Some of the cases I filed, no one else had filed.
MG: In reading articles about your work, the term "Frontier Law" came up a lot. What did that mean?
SP: Well, yes, I think it was something that Dorothy coined. Being out in Wyoming, South Dakota, and Idaho that it was frontier justice--just as soon shoot them as anything else. There definitely was, and probably still is, a different kind of thinking out there. Like you might hear "New York justice," or that's eastern or something like that. But the leave them alone, independence, we can do whatever we want to mentality is alive and well out there.
MG: I am curious about how those cases are different between the regions. I'm trying to picture you at ACLU meetings and discussing your cases and what was going on in Florida, California, and New York.
SP: First of all, many of them weren't that different, but some were, where issues perhaps had already been resolved out East hadn't yet been resolved out West. Maybe the Union Pacific Railroad case is a good example. Something that blatant you wouldn't get in New York City, just supervisors ignoring, if not participating in, blatant race discrimination. They'd at least try to cover it up a little bit more if they were doing it. Some women's issues or One Flew of the Cuckoo's Nest--It's not to say that there weren't books being banned other places, but maybe not Cuckoo's Nest. They definitely did have issues that were either unique to them or were being litigated after having been resolved twenty years earlier in more populated areas.
MG: Did you feel that you had the autonomy to prioritize your cases, or were there national directives on the kinds of cases to tackle?
SP: Both. I pretty much had the discretion to take whatever cases I wanted to. However, Dorothy, I'm not really--I use the word boss, but she didn't have the ability to fire me, actually. She was the administrator of the office, but I was in a different chain of command. Nevertheless, I never tried to test that, and she recommended that I convene a legal panel, which was very helpful. So there were maybe seven or eight attorneys, and we met once a month. This developed after I had been there maybe ten years or so. I would run cases by them. I don't know if I ever went against one of their recommendations, but I did have the authority to, and it is possible that we did. I don't think I ever went against Dorothy's recommendation. So I didn't have complete discretion, but for all intents and purposes, the only cases I ever took are cases I wanted to take.
MG: I did not know if you wanted to look over some cases from the 1980s to see if anything stands out to you.
SP: Sure, okay. Yes. Well, there's several. Okay, the Love case, Love v. Mayor of Cheyenne. It's listed twice--one in the district court. That was in 1978, and then 1980. That became a very significant case. It helped make law in the country for this reason. The initial case was run of the mill. A religious organization wanted to go door to door and solicit, and there were anti-solicitation ordinances. Now, homeowners can say no solicitors, but when a town decides for the town that you can't solicit, that violates the First Amendment, various freedoms. So we challenged that law and won. The court declared it unconstitutional.
Two years earlier, Congress passed the Attorney's Fees Award Act [of 1976], and it's 42 U.S.C. 1988. The reason I know it is that I have cited it a thousand times. That law was passed after--one year earlier, the Supreme Court in the Alyeska Pipeline case [Alyeska Pipeline Service Co. v. Wilderness Society] held that federal courts, generally speaking, cannot award attorney's fees unless Congress has expressly authorized it. Congress held a series of hearings and realized that it had passed more than seventy civil rights laws--age discrimination, sex discrimination, especially in the '60s, no discrimination in housing, and the majority of those statutes, or many of them, didn't have an express attorney fee provision. So many successful litigants were seeking attorney's fees after they would win these cases, and federal courts were awarding fees. Well, the Supreme Court held you could no longer do that unless Congress has issued an expressed authorization.
Well, Congress realized that it basically had three choices at that point. It could either not allow fees, which would virtually make those laws unenforceable. The majority of times, the victims don't have the money to hire an attorney, so these laws would basically be unenforceable. So it could do nothing. It could expand the Department of Justice and authorize the DOJ to file these cases. Or it could dangle a carrot in front of private lawyers and say, "If you win one of these cases, you will get attorney's fees." That's what it decided to do, to create a private remedy. And it passed an omnibus universal statute, section 1988, that says that as part of the remedy, if you win one of these civil rights cases, the court should also, as part of the remedy, award attorney's fees. So I had just won this case, and I asked for attorney's fees. The judge, a wonderful fellow, named Brimmer--I think he was a very conservative Republican. I think he was a Nixon appointee--denied fees, interpreting this very new law as requiring proof of bad faith.
I then looked up the legislative history. I went to the House reports. I looked at what the senators and Congresspeople were saying about it, what the purpose was. It was clear that the purpose was, as I just mentioned, to encourage victims to file suit and to encourage lawyers to take those suits. It would be discouraging if lawyers--it would defeat the purpose if lawyers could only recover fees if they prove that the defendant was mean, did it on purpose, that there was bad faith. It would also discourage, and many of the proponents of the legislation said, "This is designed to be a preemptive measure by compelling potential defendants, people who have bad laws from repealing those laws, or sheriffs who have overcrowded jails to do something about it before they're sued."
So the Tenth Circuit Love Case was a few months beforehand. One other court of Appeals had addressed this issue of legislative intent and had ruled that good faith or bad faith is not an issue. If you win, you should get fees. Congress made it a fee-shifting provision to encourage private litigants and to enable private litigants to obtain counsel, and the Tenth Circuit then did too. Once that happened, now you have two circuits, no other court ever disagreed to my knowledge. I mean, this was an exceptionally important decision in civil rights law because it really opened up and made it so much easier for victims of civil rights abuse to find lawyers. So many of the other cases that I have here and cases that hundreds of other attorneys have had are the result of this section 1988 and the way courts were interpreting it. Ultimately, the U.S. Supreme Court, a couple of years later, took one of these cases and agreed. So this was a big case. Frankly, I give myself some credit for taking the time to look at the legislative history, and that the Tenth Circuit cites the legislative history in saying this is what Congress meant. So, yes.
MG: Who was the judge in the second case?
SP: Well, the Tenth Circuit is a Court of Appeals.
SP: So, the way the federal system works is that there's one federal district court in every state, at least one, and then there are thirteen U.S. Court of Appeals. Each court of appeal sits over district courts, and you always get three judges.
SP: Right. So, I appealed it. Because this was a Wyoming case, the Court of Appeals for Wyoming is the Tenth Circuit, which is in Denver, so I argued it there, and then it reversed Judge Brimmer's decision. So I come back into district court with my tail in between my legs, and he goes, "Well, Mr. Pevar, I want to congratulate you. I'm not reversed that often and you were right, I was wrong, and the Tenth Circuit has ordered me to issue you attorney's fees. Please go ahead and submit your hours, and I'm going to do that." He was the most generous guy. He was so nice about it. I'd say I litigated maybe eight to ten more cases in front of him over the years. He died maybe three, four years ago. He was in his nineties.
MG: He lived for a long time.
SP: Yes, he was in his nineties. Okay, but anyway, so that's the Love case.
MG: Maybe I've been reading too many books about the justice system, but it seems like when you appeal to judges, they hold fast to their original opinion.
SP: Right. He didn't.
SP: No. If anything, just the reverse. I had no idea what he was going to do, and he just said, "You know, they said I was wrong, and I'm going to do the right thing," and he awarded me a very substantial attorney fee. The only other case to mention in the '80s--well, two cases actually. McLain v. Meier.
MG: Oh, yes. He was the third-party candidate.
MG: Harley McLain seemed interesting.
SP: Fascinating guy. I mean, what a weirdo. The nicest weirdo, though. I'm going to try to shorten these summaries. If you need me to expand--because otherwise, it will take--this guy wanted to run [as a candidate for election], and just to get his issues out there. He had no illusion that he'd be elected, but this gave him a forum. He was a natural farmer, organic farmer, that was against pesticides. That was essentially his sole issue, and he wanted to get on the ballot. North Dakota had very restrictive ballot access provisions, which many states did. It was a conspiracy between the Republicans and the Democrats to stifle competition. The laws would say that if you obtained at least ten percent of the votes in the last election, you were automatically on, which, of course, the Democrats and Republicans always did. But if you didn't, you had to file a petition, and there were always two facets to it, a deadline and a signature requirement. So, let's say that you are Ralph Nader, or you want to run as a third-party. In order to get on the ballot in North Dakota, I forget how many thousands of signatures you had to get.
MG: I think it was a certain percentage.
SP: Yes, it was a certain percentage, but it came out to be thousands.
SP: Not only that, but they had a law, that the party that won the gubernatorial election would be listed first on the ballot, which was also unfair because articles have shown, tests have shown--and it's called the donkey vote--that there's a significant number of people, depending on the race, who will vote for the first name they recognize. Now, that happens, not so much in the presidential election, but [for] clerk of court or sheriff or whatever. So there is an advantage to be listed first, which is why they pass these laws. Anyway, we won both issues, to cut to the chase. The Eighth Circuit invalidated both the signature requirement--they said it was too onerous--and the ballot positioning. They said that it had to be on a rotating ballot so that if you're listed first in Bismarck, you're listed last in Fargo. The registrar of voters had to come up with an even distribution throughout the state. So, these were two very important decisions, especially because it came from a Court of Appeals, and again, there's only thirteen of them, and their decisions are--well, they're automatically binding on the states within that circuit, and they're quite influential anyplace else. So that actually is one of the cases I'm most proud of.
MG: I thought I read he was running for President, and then he just declared himself President at one point.
SP: He was running for Congress. I don't think he declared himself anything.
SP: I mean, he could have because he was a wild guy. Yes.
MG: Yes, there were some funny pictures of him in that pile.
SP: Yes, it is possible that he did. He was really wild.
MG: The Estes case was also in the '80s.
SP: Oh, yes. The Estes case. Right, right. I probably wouldn't file that today, Yes, in the '80s. It deserved to be filed. Let's see. What was it? Estes v. Hilton?
SP: Oh, Estes. Okay. Yes, alright.
MG: I thought that was '80 or '81.
SP: Oh, yes. Okay. It wasn't a reported decision. That's why it's not on this list. What was that case? Estes v. Horton.
MG: Bruce Horton was a former deputy sheriff, who was fired by Estes.
MG: Horton claims he was fired for being discovered to be part of an undercover investigation of the sheriff's office. He discovered some gang violations.
MG: Fired without due process.
SP: Okay, how did it end? [laughter]
MG: According to this, it was dismissed.
MG: But I was not sure why.
SP: I don't know either. I just don't remember.
MG: It was a significant part of the clippings you gave me were dedicated to the Estes case. I saw the initial headlines, but not how the case unfolded.
SP: Right. Something weird happened in that case where we had to dismiss it.
MG: Who dismisses it?
SP: The plaintiff would.
SP: Yes, something happened to him, or we uncovered something he did that, where I then said, "Mr. Estes, I just can't go on with this." That has happened a couple of times, where my client wasn't entirely forthcoming. I'm not saying that this is one of them, but there have been a couple of cases that I have dismissed because of that, and this could've been one.
MG: Does that mean you just stop where you are?
SP: Yes, you file a notice of dismissal.
MG: What else do you have there in the '80s?
SP: Well, one is Chambers v. Marsh. It's another one of the handful of cases I lost. Chambers is Ernie Chambers, and he might still be--no, I think he recently retired, a black fellow in the legislature in Nebraska. He challenged one of us to help him with challenging the offering of prayers to open up the legislature. Now, the Supreme Court had issued some wonderful rulings about [how] you can't open up [the] school day with prayer, and we wanted to extend that. So we won in the district court. We won in the Eighth Circuit. We lost in the Supreme Court. So the Supreme Court--actually, there is a decision issued by the U.S. Supreme Court [Marsh v. Chambers], saying that it is not unconstitutional to open up legislatures with prayer and that adults are different than children. Adults can discriminate or differentiate. They're not going to be involuntary persuaded as a child might. So it drew a distinction. So, we actually lost that case, yes. I didn't argue it in the Supreme Court, but I don't think it would've mattered who argued it. They were very opposed to it.
MG: Is that because adults can mentally separate church from state?
MG: Do they still do this today?
SP: Yes, yes. Probably most legislatures do open with prayer. Today, they're more discriminating, where they'll have a rabbi one day, and different denominations and religions offer them, but we were arguing about just not having it at all.
MG: It was also that the chaplains were being paid a pretty hefty sum each month.
SP: Oh, to do it. Yes, that's true, too. It was paying for this religion, yes.
MG: There were a lot of Bible distribution cases in the '80s, too, I was going to ask you about.
SP: Right, right. Almost entirely in Idaho and Wyoming. Yes. That was another area that I got into, and this was a good example of where--once I won these first couple of cases, all I had to do was send a letter because of the attorney fee provision. That's why that case was so important, because otherwise, "Oh, sue me." They'd have nothing to lose, but now they do. They'd get socked with attorney's fees. The Giles case. That's the one--the letter I gave you.
SP: Yes. That was wonderful. That was a great case. [Editor's Note: See Stephen Pevar's interview from November 9, 2015, for more on the case involving Julie Ann Giles, Giles v. Ackerman.]
MG: We skipped over the casino cases in the late 1970s.
SP: Okay. That's the one that I thought was--oh, yes. That's not on this list. Well, there was just one. What was the name of that one?
MG: I do not know the name of it.
SP: It would be on that list.
MG: Let's see. I thought it was another Estes case. It was a different Estes.
SP: Oh, okay.
MG: Mark Estes.
SP: Oh, Mark Estes. Okay. That's why I thought--yes, okay.
MG: Mark Estes was a--
SP: Card counter.
MG: Card counter. I am getting Mark Estes and Ken Uston mixed up. One was based in Las Vegas, and the other came to Atlantic City.
SP: Oh, yes.
MG: The rules in Atlantic City were a little looser than they were in Las Vegas. I'm not sure I understand the legal arguments involved in either case.
SP: Yes. Well, and we did lose the case, and we didn't appeal it. The issue was whether these casinos were public accommodations and could not discriminate. They invite people down. We had even copies of ads, saying, "If you got the system, we have the table. Come on down." But if you were good, they did kick you out.
MG: And for trespassing, not for counting cards?
SP: Right. That's right, yes. There were people watching upstairs, and they watched card counters, and they'll go up and say, "I'm sorry, you have to leave." Then if you don't leave, they arrest you for trespassing.
MG: It was interesting. Research shows that card counting only improves the chances of winning by about four percent. I think Estes was even losing at the time of his arrest. It seemed like the facts were in your favor.
SP: Right, yes.
MG: What is the state of that now?
SP: I think they still are looking for card counters, but what they do to frustrate card counters and make it impossible is that they use many decks, and they shuffle halfway through. The way card counting works is that--do you play Twenty-one at all? Do you know that?
MG: I have, yes.
SP: Okay. Then you know. So aces are your best card, and a card counter will sit there and count how many aces have been played. So when the deck is half done, if only one of the four aces has been played, you start increasing your bets, because you have a higher chance than normal of getting an ace. They'll also count face cards so that if many of the twos, three, fours, and fives are gone, you could adjust your betting depending on what's left in the deck.
MG: That just sounds like a good strategy.
SP: Right. That's what it is. Yes, yes.
MG: There is also a case I saw some articles about, involving the University of Nevada and public accommodations for people with disabilities.
SP: Yes, that's another very important case. This was right after Congress had passed the Rehabilitation Act [of 1973], and it was unclear what state agencies had to do to comply. So a blind guy named Jayne and a woman, Dorothy Moxley, I think her last name was, contacted the ACLU, and we filed suit. They had a fantastic case. The office for handicap services was on the second floor of the Student Union, which had no elevator. That was our opening argument. So our lawsuit revolutionized, changed, UNR, University of Nevada at Reno. It's funny because I had a conference out there about four years or so ago, and I was telling people, "You see that elevator over there? I put that there." They had to spend millions of dollars to retrofit their buildings, and it became a very important case because other schools realized they needed to do that too.
MG: More students could attend there now.
MG: That was important to me. I don't know if I told you, but I've done a lot of work with documenting the disability rights movement as an oral historian. I recently hosted a story slam to celebrate the various stories of people I interviewed. It was almost impossible, in 2015 to find a place that fully accommodated people with disabilities.
SP: Right, right.
MG: Even though there are laws on paper, enforcement has been tough.
SP: Yes, yes. This was one of the first, if not the first, Rehabilitation Act case against a school of higher education.
MG: Has there ever been a Disability Rights Project within the ACLU?
SP: I'll be embarrassed if I say no, and there is. Oh, gosh.
MG: I know there have been manuals put out.
SP: I don't know for sure.
MG: We can fill in that part of the transcript.
SP: Right, okay.
MG: Sure. We talked about Sue Giles last time, how you met, and the story of what she went through. But I was curious about what the trial experience was like for her.
SP: Well, we never had to go to trial because the defendants filed a motion right away, saying that--in other words, she never had to testify because the state asked the court to rule as a matter of law that she had no rights to avoid a strip search and the district court agreed. We then won on appeal. That Court of Appeals is the Ninth Circuit. So we settled the case, and she got some amount of damages. I don't remember how much it was, but as soon as the Ninth Circuit ruled that her rights were violated, the city settled for damages and attorney's fees.
MG: Moving down the list, I don't know anything about the Ridgeway v. MHSA case.
SP: Yes, that's another one of the cases that changed things nationally. That was a huge case. Title IX had been passed not that long ago, saying that schools needed to equalize sports. [Editor's Note: Title IX of the Education Amendments of 1972 requires gender equity in any educational program or activity that receives federal funding.] This was the first class action. I'm almost sure it was the first class action filed under Title IX against a public school system in a state. A few had been filed against individual schools, but we filed a class action against the Montana High School Activities Association, that's MHSA, alleging that all of the schools violated Title IX. Now, here's an interesting footnote. There were four federal judges in Montana, and each one recused him or herself. They never have to explain why so we don't know, but our guess is that they knew that we were right and that they did not want to be the judge who made this horribly unpopular decision. So they needed to find a non-Montana judge, and who did they choose? The judge who decided the school board case.
MG: Judge Andrew Bogue?
SP: No, no. I'm sorry. The LDS [The Church of Jesus Christ of Latter-day Saints] case, saying that you had to have the high graduation in the high school auditorium and not the Mormon church. So I love this guy. He's just wonderful. I remember my clients calling me up and saying, "Oh, Stephen, did you see? Who's this McNichols from Idaho?" I said, "Nancy, this couldn't be better. This guy is so great. I just finished a case with him. He's wonderful." Sure enough, he was. Well, Montana was probably--I wouldn't be surprised if it was the worst state in the United States concerning sex discrimination against girls in high school. You select anything--uniforms, practice times--the girls had to wash all of their uniforms. The boys would leave them at school, and the schools would wash them. The boys' teams got the school buses. The girls' teams, the parents had to drive them. The schools advertised for and paid high salaries to the coaches of boys' teams. All of the coaches for girls' teams were volunteer moms or dads or the math teacher who knew nothing about girls' volleyball, or whatever. The boys' and girls' basketball was at the same season. The boys got to practice after school. The girls had to come in at 5:30 in the morning. Regardless of what you looked at--the trophy case for the boys was this enormous thing, and either there was no trophy case for the girls, or it was confined upstairs or something like that. Even in this one high school, where the girls had won the state championship, their trophy wasn't even in the trophy case.
So here's Judge McNichols, and he calls a hearing. The defendants filed a motion to dismiss the case. So there hasn't been a trial yet or anything. You just have the complaint. So I get up there. Now, because we're suing all of these schools, there's literally a bank of lawyers on the other side, and on our side is me and my local counsel. I mean, they had to bring in extra tables for the defendants. I get up there, and I tell them what I just told you. I said, "Judge McNichols, you look at this. You look at this." Before the defendants even said anything, McNichols turns to this line, and he goes, "I want you to know that if Mr. Pevar is able to prove half of what he just told me, I am going to drag you kicking and screaming into the twentieth century. If I were you, I would settle this case." Well, we did. We never went back to court. We settled the case, and it was exactly what we had hoped for. It took us months to settle the case, but we have an enormous consent decree, whether it's laundry or transportation or practice times or coaching, number of sports--I mean some high schools had five sports for boys and one for girls--every issue of athletics is in that consent decree. It really helped set a national trend. It was the first [class action] case.
It's funny. About five years afterward, I'm on a scuba diving trip in Mexico. There's some other, three or four boys on it. I could tell from their conversations that they play sports in Montana. I said, "I can't help but overhear that you're from Montana, and you're playing sports. Are you familiar with the Ridgeway case?" And they said, "Who isn't?" I said, "Oh, well, what do you think about it?" "Well, now all these girls, we have to share the basketball court. It's awful." I'm sure today, if you go to Montana, if you even say the word Ridgeway, people will still know what that means because it equalized sports. It had statewide impact.
MG: I am sure even beyond that.
SP: Right. Oh, yes. Beyond, Yes, it did. It definitely did.
MG: Well, thank you for your work on that. [laughter]
SP: [laughter] Yes, it was great.
MG: I always had equal access to all my sports in high school.
MG: So you didn't tell these boys that you were involved in the case?
SP: No, I didn't. I actually didn't.
MG: They would have drowned you.
SP: [laughter] Yes, that's right. They would have cut my air hose or something. No, that's right. I didn't.
MG: I see your name as a plaintiff in one of these cases.
SP: Oh, yes. Yes, that was a cool case. It was actually later merged with another case, so we didn't go to actual trial on it. I had arranged with a prison in New Mexico to visit a prisoner. When I got there, they wouldn't let me in.
MG: Oh, right. Who were you visiting? How did they prevent you from getting in?
SP: They just said, "We're not going to let you in." I said, "Well, what do you mean? I worked this out." "No, you're not getting in." They didn't give a reason. They just wouldn't let me in, and I just said, "Well, I have a letter here from the Assistant Warden." "Well, we've changed our mind. You're not getting in." So, I sued them. Yes.
MG: What was the case it was tied to?
SP: Conditions of confinement. I then contacted the ACLU National Prison Project, [and] told them about this. They were already interested in filing suit against that prison anyway, so they did. I think I just dropped the case or something like that. I was more interested in the conditions.
MG: When did you really get in gear with the prison condition cases? Because there were so many that you worked on.
SP: Yes, so many. It was impossible not to out there. They were so awful, number one, and a large percentage of our letters were from prisoners. To give you an idea, and we could look this up to get the exact numbers, and I think this is accurate, but one of the cases, Loya v. [The Board of County Commissioners of] Bannock County. I think it is Pocatello, [Idaho]. Yes, I think it was Bannock County. Let's see. It's a reported case. Here it is, 1992. That case, I'm in my office, the phone rings, I pick it up, and [someone] said, "Is Mr. Pevar there?" I said, "Yes." I had previously filed suit against other Idaho jails. He goes, "This is Sheriff Lynn in Pocatello." I'm not sure, of course, that it is. He goes, "For now, I need to keep this confidential." I said, "Okay." He goes, "I want you to sue me." I said, "Really? Now, who is this?" He goes, "It's Sherriff Bill Lynn. I was recently elected sheriff, and I just didn't know how bad conditions in the jail are, and it's tearing me up at night. I can't sleep. My jail was built," and I forget what year, "to house thirty-five prisoners, and today it's a hundred and something--a hundred and seventeen, a hundred and thirty-seven."
MG: A hundred and twenty rings a bell for me.
SP: Okay, alright. "Sixty-seven of them were sleeping on the floor." He said, "You can't even walk in here without stepping over somebody." So, we did. We sued him. I took his deposition. Now, I hoped that he would be willing to say under oath what he had told me on the phone, but you never know. One of my first questions is, "Well, Sherriff Lynn, how would you describe your jail?" He said, "In my opinion, it's an example of man's inhumanity to man." I asked a generic open question just to see whether he was--he's an elected official--whether he would be willing to open up about it, and he did. I then said, "What about overcrowding? What about food?" Each time, he just said what he believed. I then took his deposition into the judge, and the judge granted an order, placing a cap of thirty-five on the jail. They then built a new jail, a much larger jail. So, that's an example, too, of where it doesn't happen that often, but it has happened several times where professional law enforcement people will openly support our lawsuit.
MG: Why did he need to be sued in order to make changes?
SP: Because the county kept turning down bond elections. Yes. The county commissioners would propose a new jail. It would require approval from the public, and they would vote it down. But judges kept assigning people to the jail, so they had no choice but to take them, and his only recourse was to get a federal injunction.
MG: Where did all the extra inmates go? Were they released or transferred?
SP: Both. It's amazing the number of times where I've obtained population caps where the municipality then realizes that they really don't have to incarcerate as many people as they do. You can have these ROR, Release on Recognizance, where this person has lived in the community all his or her life, they're not going anywhere. Let them out. They'll show up for trial. You don't have to keep them in jail. It's counterproductive because then they lose their jobs.
SP: Alright. Well, let me look through the list.
MG: Maybe we will just talk a little bit more about some of the prison conditions cases.
MG: There are other issues that you addressed, like blanket strip-search policies.
SP: Yes. That's Giles.
MG: I want to get on the record what you saw there. In one case, you outlined fourteen areas of deprivation--overcrowding, unsanitary, someone was held for forty-two days without being legally charged with anything. Someone had never been told they were due to be released and had written a letter saying, "What's the status of my case?" They said, "Oh, you should've been released a while ago."
SP: I forgot that. Yes. [laughter]
MG: And then there was a case involving twelve female inmates in the North Idaho Correctional Institute.
SP: Yes, that's Witke [v. Crowl]. Right. Yes, that was an important case. That case dealt with discrimination against female prisoners. The state had created a small prison for women and a very large prison for men with a gymnasium, and prison industries, a furniture shop. The only program for the women was sewing; that was it. So we filed suit, alleging a violation of the Equal Protection Clause of the Fourteenth Amendment, which is the clause that guarantees equality. We won, and the state built a nice prison for women.
SP: Yes, right.
MG: Also, in the box of things you lent me was letter you wrote to Burt Neuborne about a conversation you had with Steven Gafford and how it reminded you why you work for the ACLU. He was housed for four years in a mental institution inside a prison, and he was a civil commitment. Does that mean someone who voluntarily--?
SP: Not voluntarily. Go ahead. Finish what you--
MG: You fought to have him sent to a less restrictive facility. This is in 1984, I think. There is so much to remember.
SP: Right, right.
MG: But it was a compelling letter to read. I felt that there were some letters in there that served to remind the national office of the work you were doing.
MG: Because there is a statistic in my notes that says, "You filed more cases to improve conditions of prisoners than any other ACLU attorney, and it resulted in the most significant improvements or reductions of populations."
SP: Yes. I'm sure that's true. We called them totality of conditions cases, where basically, you're challenging every condition in the jail or fourteen of them--ventilation and sanitation, the lighting and plumbing. I probably sued at least a quarter of the jails in Wyoming and Idaho. Every time I filed one, prisoners from other jails would write to me. I had a set of experts. Ward Duel was my sanitation engineer expert, and he and I just had a blast going to these places. He was an odd duck, but a very knowledgeable sanitation engineer who had been in a health department for most of his life. He was pushing eighty. He was difficult to even get around, but he just did everything in these jails.
MG: There was a case of a fifteen-year-old who had a ruptured appendix in jail and went untreated.
SP: Oh, right.
MG: You filed a suit against Deer Lodge Prison in Montana, that addressed the Board of Pardons, Board of Pardons v. Allen.
SP: Yes. Now, that turned out to be the only case I argued in the United States Supreme Court.
MG: Tell me about that. Can you tell me from start to finish?
SP: Okay. In 1979--so mine was filed a few years after that. In 1979, the U.S. Supreme Court addressed the following question. If you're a prisoner and you have served the minimum time to be eligible for parole, and you file a petition for parole, and you're denied, do you have a right to know the reason why? Fair question. What the Supreme Court held in that case, the Greenholtz Case, is you don't necessarily have a right to know the reason why. It depends on the kind of parole system the state has chosen to create. If the system is entirely discretionary--so, for example, if it says, "Prisoners who serve one-third of their time without misbehavior, may be released on parole," is entirely discretionary and the due process clause, which guarantees us due process whenever we lose something significant, doesn't apply because it's discretionary. On the other hand, if it says, "Prisoners who serve one-third of their time shall be released on parole if they meet the following criteria." It creates what's called a protected liberty interest, and you do have a right to know the reasons why.
So prisoners from Montana contacted us and said, "Here's the Greenholtz Case, here's the Montana system. We think that we fall on the due process side of the fence." I read the statute, and I agreed that although it was differently worded than the Nebraska statue the Court considered in Greenholtz, nevertheless, it had the word "shall" in it, not "may." So we filed suit. The federal district court dismissed the case on the grounds that no, it didn't create a liberty interest. So we appealed to the Ninth Circuit. The Ninth Circuit in San Francisco reverses and finds that it does create a liberty interest. Now because we won, we were locked in. We couldn't prevent the state from asking the Supreme Court to review this. So they decide to ask the Court to review it, and I write to my clients, and I say, "Well, there have been seven cases so far since Greenholtz, in which whoever lost asked the Supreme Court to expand on or clarify the Greenholtz decision and the Court has rejected all of them. Apparently, they have no interest in saying anything more, and the chances are very small that they will."
So wouldn't you know it? They accepted this case. I mean, it was just the luck of the draw. I guess they had been tired of getting these petitions, asking them, "Well, what do they mean?" Or, "What about this statute? What side of the fence does it fall on?" Because the Nebraska statute was kind of an odd statute and the law is clear that some do and some don't create these interests, but it was hard to tell which do and which don't. So they took this case. Obviously, I was thrilled that they picked this one, but there wasn't any rhyme or reason to it. I think it was a combination of just having had a number of--the Supreme Court today has asked to take about seven-thousand cases a year, and they accept less than a hundred. So the chances are very small. Often you don't know why they take a case or don't take a case, but they took this case. So you always worry that they take a case to reverse it. I had won. So why are they taking this case unless they plan to reverse it?
Anyway, I got a chance to argue in the Supreme Court, and we won six-three. Montana's parole statute, therefore, was determined to create a liberty interest. Not long afterward, the Montana legislature then amended the law and took out the liberty interest [by switching "shall" to "may."[ So we won on paper and then lost on the battlefield really. Yes.
MG: Is that where you reencountered Justice Antonin Scalia, where he said, "Now Pevar?" [Editor's Note: Antonin Scalia lived from 1936 to 2016. He served on the Supreme Court from 1986 until his death in 2016.]
SP: Yes, that's exactly right. That's exactly right.
MG: Was he a dissenter?
SP: Yes, he was a dissenter. He was, yes. I forgot I told you that, yes.
MG: In those files you shared with me, there were two poems from Wyoming State prison inmates.
MG: John Harlow wrote a poem called "Home Steel Home," and Kevin (Ezell?) wrote a poem called "Free at Last." They were pretty incredible.
MG: Yes, about their conditions and what that experience is like. It was interesting that they would share those kinds of things with you and more evidence of those personal relationships you formed with people you worked with.
SP: I don't know for sure whether they just sent those to lots of people or just to me. I can't recall. In fact, if I had known--in my office, I know I have two, and I may have more, but there have been some artists who have drawn things on their envelopes and then sent the envelopes. I took out the letter, and I put the envelopes on my wall, but there have been a number of people who have done things like that.
MG: I'd love to see those sometime.
SP: Yes, yes.
MG: There was a beard ban in 1987 in an Idaho prison. Did the ACLU get involved in addressing that?
SP: I don't remember. We certainly could have because I did get involved in some prison hair cases, but I don't remember that in particular.
MG: What would a prison hair case be about?
SP: Well, one case that I did get involved in was a--let's see. I wonder if it's on here--an Indian religious hair case, where they wanted to cut the hair of an Indian prisoner who felt that it would violate his religious principles and he testified very compellingly. We called an expert, too, who said that traditionally how you cut your hair and when you cut your hair had enormous significance, and that normally Sioux didn't cut their hair except in times of mourning and it was a sign of mourning. Sometimes you would cut your hair on one side or the other, depending on what message you wanted to give. The judge issued an injunction saying you couldn't cut this guy's hair.
MG: Similarly, you worked with Muslim inmates to secure mealtimes.
SP: Yes, I did. I did.
MG: Where was that?
SP: Wyoming. And that's more recent. Well, I guess it's still ten, fifteen years ago now. Yes, mealtime and the quality of the meal and that had to be Halal, that they needed to have certain dietary restrictions. It had to be Halal. We filed suit, and we got a good consent decree for them.
MG: Do you want to look over some of the other cases from the 1980s, and then maybe we will stop when we get to 1990.
SP: Okay, yes.
MG: I did not know what Dietz v. Elko County was, another prisoners' rights case.
SP: Condition of confinement.
SP: Another one, yes.
MG: Dunn v. McKinney?
SP: That was a good case. That's a fun case. Okay, I'm going to turn this around. You be the judge.
MG: Uh-oh. Okay.
SP: Okay, you be the judge. A guy named Pete, and that actually was his name--a guy named Pete is in a small town in Riverton, Wyoming, in a bar, and he gets into an argument with another patron at the bar. They get into a fistfight. Pete punches the guy so hard in the head the guy dies. The police arrest Pete. They then go up to Charlie, who is Pete's best friend, who is a deputy sheriff and says to Charlie, "Well, you work in the jail, so you're not involved in the criminal prosecution. We're not suggesting that you're going to taint anything, but it just doesn't look good in this small community to see you pal around with a guy who's"--and Pete now is out. He posted bail, and he's out. So even though your job isn't involved in the prosecution and we're not saying that you'd be able to tamper with anything, but we want to maintain the integrity of the sheriff's office. We don't want you to associate with your friend until the case is over." Charlie says, "Well, gosh. He's my childhood friend. He's my best friend. I mean, now is the time that he needs me the most. We've been talking almost every day, and he just feels awful, and he's depressed. Please, I don't have any connection with this. Whether I see him or don't see him won't impact the outcome." The sheriff said, "No, I've had a few people in the community just say what Pete did was awful, and I just don't want any of my deputies associating with him at this point. I hope that you could appreciate that I have a duty that the public has confidence in law enforcement." Who do you think should win? Should the sheriff and should the interest of the public and maintaining confidence in law enforcement trump any associational rights that Charlie may have, if any.
MG: No, especially if it does not affect the case.
SP: Okay, if it doesn't affect the case. So the First Amendment, freedom of association, should win?
MG: Right, and it sounds a little bit like those retaliation cases. What are the consequences if he does associate with?
SP: Oh, he would be fired.
MG: That is a problem.
SP: Yes. In fact, what did happen was Charlie told Pete that he just couldn't see him; otherwise, he would lose his job, and they had no connection. Then they just couldn't stand it, and Charlie called him up and said, "Pete, I just can't stand this anymore. Let's go fishing, out to our old fishing area in the woods." They go out there, and wouldn't you know it, there's someone who reports it to the sheriff and Charlie's fired. So there are two competing interests. I called up a sheriff, who I knew, and I told him the situation. I said, "John, you're a sheriff of a small community, also. This must happen." He goes, "Oh, all the time. We're arresting somebody's cousin or somebody's grandmother for this. Half the town wouldn't be able to talk with any of my deputies if I did that all the time."
[The Sheriff continues:] "So what I decided to do is create two classifications. If the crime is one in which someone could believe that the deputy might be involved in criminal activity--like if I arrest someone for selling methamphetamine, then I say, "You can't associate," because I don't want the community to think that my people are involved in criminal activity. But if it's a one-time incident, where you might not like that person's choice of friends but you can't think that they're involved in the activity, then I feel the public just has to swallow hard and say, 'That's the price of liberty.'"
That was perfect [advice]. I mean, not only did it make sense, but it also applied well to the situation. That's the argument I made, and it was the same Judge Brimmer. The same Judge Brimmer, years later, and he wrote a wonderful decision upholding the associational rights of public employees, and it was one of the first cases to do it. It was later cited by lesbian teachers, who were told not to engage in a lesbian relationship outside of the schools because of how it would look, or any number of situations. This was one of the forerunner cases, establishing freedom of association for public employees. So this was a real good case.
MG: Yes, it sounds interesting.
SP: Yes, yes.
MG: It sounds hard to draw the line. What if it's a one-time murder of a gang member?
SP: Yes, it is. It is. You can have more difficult--yes, yes. Fortunately, that wasn't this case. Let's see. So stick with the '80s, right? Let's just finish up with the '80s here.
MG: Sage v. Risley?
SP: There was a reported decision. That dealt with conditions of confinement, and then later, I sought attorney's fees for the work that I had to put in to ensure that the defendants were doing what they said they were supposed to do. The court agreed that because our consent decree, our court order, did require that I do some work, I should be paid for it, even where you didn't find any breach of the agreement. The law is, and this helped establish that law, that once you have a court order, then it's your responsibility to your clients to ensure that they get what they're supposed to get. So on my list, it shows Sage v. Risley, attorney's fees for monitoring, 1992. On there, it may show what the actual case was. [Editor's Note: Sage v. Risley was a 1985 District Court case in Montana. Visitors to the prison stated their constitutional rights were violated when they were strip-searched upon entering the prison. A settlement was reached, and strip searches ended. However, another strip-search occurred, and the case was brought back to court for compliance. Attorney's fees were awarded in 1992.]
MG: This is the one at the very bottom.
SP: Fourth Amendment privacy. Yes, okay. What was that? Gosh. Fourth Amendment Privacy. Well, I'd have to look that one up, but it was a prisoners' rights case, and we won. Then I had to monitor it. I later asked for attorney's fees, and I won that, also. Then [Tom] Spiering. That's the gun.
MG: Oh, right. We talked about that last time.
SP: Oh, that's in the '90s. Let me just quickly make sure that there's nothing else in the '80 s.
MG: You can look at this list, too, if you would like.
MG: There's a number that are starred.
SP: I don't know why they're starred. That's interesting. So, sticking with the '80s, 1983, Jenkins v. Werger, right to adequate nutrition in jails.
MG: That is the bread and water case?
SP: Oh, I told you about that?
MG: No, I read about it.
SP: Oh, okay. Yes, this Werger was the sheriff.
MG: He was the warden?
SP: The sheriff. [Note: there's a difference between a prison, which is a state facility for felons, that is, people convicted for a felony and sentenced to prison for more than a year, and a jail, which is a county facility for people awaiting trial or who have been convicted of a misdemeanor. Prisons are run by wardens. Jails are run by county Sheriffs.]
MG: A sheriff.
SP: Yes. I mean, he would've had a wonderful time in the 1500s. So prisoners were in their cell, and one of them sees that there's a little bit of coffee left, and he wanted to get some more coffee. So he goes like this out the open window [dumps out his cup]. All of a sudden, they hear a yell, and they look down, and there's the sheriff. They had just thrown these coffee grounds on him. The sheriff goes, "Who did that?" Then all of a sudden, there's a laugh, and they just say something about, "You might not want to smell that, sheriff," as if they had just thrown feces on him. Not smart. Anyway, he decides to place all of them on bread and water for five days. [laughter] He was so pissed. They were on bread and water for five days.
MG: How did you find out about it?
SP: They contacted us. So, we filed suit. There's even a Wyoming statute that allowed that. That said, "For disciplinary reasons, the sheriff can place a prisoner on bread and water," and that's what he used to do it. So, this lawsuit declared that unconstitutional. Yes, that was a funny case. Now, another case that's listed here, Mishler, it was decided in 1990. That's an important case. So I just finished saying that in 1987, in Board of Pardons v. Allen, the Supreme Court helped interpret this doctrine known as protected liberty interest, where depending on how statutes are worded, a state can create a liberty interest or a property interest. So, for example, where do you have your driver's license?
MG: I just got it in New Jersey.
SP: Okay. If New Jersey had a statute that said, "People who are sixteen and who pass the driver's test may get a driver's license," you could be denied a driver's license. But if it says, as virtually all of them do, "If you're sixteen and you pass a driver's test, you shall get a driver's license," then the state can't just decide not to give you one. Well, the statute in Nevada had similar language for a medical license, just like it has for a doctor's license or a driver's license. This guy was a board-certified neurosurgeon, who moved from either New York or New Jersey to accept this high paying job in, I want to say, Reno. He moves out there, he's credentialed, everything, and they deny him a license. He goes, "Why?" He can't figure it out. I mean, he's truly one of the nationally-ranked neurosurgeons in the United States, a famous guy, and they won't certify him. He looks into it, and he finds a guy who is another neurosurgeon, Alfred. [Al says], "Here's what I think is happening. The head of the Medical Board of Examiners is a neurosurgeon in Reno, and he doesn't want the competition. That's what I think it boils down to." Mishler goes, "You're kidding me. You must be kidding me. Who does this anymore?" He goes, "Well, if you can't think of any other reason, then that's probably it."
Basically, I file a Board of Pardons v. Allen case in here. I just finished winning this case, and I know what the law is on protected liberty interests, and this is a protected property interest. You have a property right to your driver's license, and the Ninth Circuit agreed. Finally, in 1990, the Ninth Circuit applied the Board of Pardons' rationale to a medical license. So, another one of those decisions that had nationwide impact. I'm not saying it's the first case to do it because it wasn't, but the law was sufficiently unclear so that Nevada thought it could get away with it.
MG: Did he end up coming to Nevada and taking the job?
SP: Unfortunately for him, by this time, years had passed, and he had to take a different job. So I lost track of him, and I'm not exactly sure what did happen, but he was suing for damages at this point because he was unemployed, unemployable, he had left his practice, sold his practice, and he didn't know whether to move back. He only had one license wherever it was, and it was a nightmare for him. It destroyed him. He was never the same again. It was really a pity what they did. So that was another significant case. Each one of these is important. The Holzer case.
MG: Oh, yes. I have notes about that.
SP: Okay. I love that guy.
MG: He was the farmer.
SP: Farmer, exactly.
MG: Yes. You wrote a beautiful vignette about him.
SP: Oh, did I?
MG: About him, his case, what he was up against, and what happened to him. So maybe we can get that story on the record here.
SP: Okay. I didn't know that. Did I write it in a letter to someone?
MG: I am not sure what it was. It was an article, and I don't remember where it appeared. It just told the story of how his equipment and cows were repossessed.
SP: Yes. I would have to review the file because I can't remember. We filed suit because of the way they repossessed it.
MG: There was no warning.
SP: Right. No warning, no opportunity, no hearing, no notice. Yes. Gosh, this guy's family had been farmerd for generations. He and his wife were struggling and trying to make a go of it, and they just took away his ability to do it; they seized everything. I think we settled it, didn't we? Yes. Yes, we settled it.
MG: It was against the creditors.
SP: The creditors, yes. Right. I wrote, "won/settled." I don't know if we actually went to trial. Yes, I would have to look at the file, but he was the nicest guy and so appreciative. He really had lost everything, and he couldn't afford--he kept apologizing. I said, "Well, we don't accept money anyway, and your rights were violated." Yes, both he and his wife. Okay, well, I think that does it for the '80s.
MG: Here's one more page. Will you take a look, and if there's nothing else, we can take a break.
MG: We did not talk about people who were sent to prison because they could not pay their bail or their fines. There were a few articles on debtor's prisons.
SP: Yes. That was a very important case, and it resulted in invalidating a statute in Wyoming. It's interesting because now there's a lawyer in our national office who has been assigned almost full-time to filing exactly these cases, and I sent her the file that I did. She goes, "Wow, I can't believe you were doing this that long ago because that's what's happening today in so many communities." They turn fine-only offenses--like, if you were driving with a broken taillight, that crime is only subject to a fine, but if you then don't pay your fine, you go to jail. So people who are poor actually go to jail for offenses for which there's no incarceration, not because of their crime but because of their poverty. That's what this case was about. One of the interesting facets to this case is that it was assigned--cases get assigned on a random basis, and there were three federal judges in Wyoming. The judge that I mentioned, Judge Brimmer, and then another judge, Judge Johnson, who handled a number of my jail cases, and then a senior judge, Ewing.
SP: Ewing Kerr, thank you. Ewing Kerr, K-E-R-R. When he was ninety--maybe he was eighty, but I think it was ninety--they interviewed him. They said, "Well, what was the biggest change you've seen in the long years you've been on the bench?" And he goes," One of the biggest things is that Congress has passed these laws that allow everybody and his dog to come into my courtroom." Right. Even his face--maybe someone is going to be reading this, and it's blasphemy against this outstanding federal judge. I even found out that he had been discussing one of my cases with somebody else, what's called ex parte communications with the lawyer from the other side on one of my cases. He just didn't like the ACLU and civil liberties. He was compelled to rule in my favor, but he didn't publish the decision. It was very short, but he did find that it was unconstitutional to place people in jail for non-payment of a fine where the crime itself doesn't allow for incarceration. That was an important case. That was an early decision on this. Then, here there's a lot of jail cases--conditions of confinement and jail cases.
MG: Is the Donna Todd case on there? It was an income tax.
SP: Yes, that was an interesting case. Let's see. That was in the '80s, okay. Donna Todd submitted her 1040 as all of us do every year. In addition to writing her check, she decided to give the government a piece of her mind, and she did it on a document that she knew the government would read--her 1040. All she did is--and I didn't know this word before this case. Where you sign your name, it's called the jurat. Now, you'll know. "I'm signing my jurat, dear." Okay? Right above the jurat, she wrote, "Signed involuntary under penalty of statutory punishment." [In other words], "I wouldn't pay this if I didn't have to." That's it. That's it. That's all she did. "Signed involuntary under penalty of statutory punishment." She didn't cross anything out. She just added something. Well, there's actually a crime to deface the jurat. So the next time you're thinking of defacing that jurat, don't.
SP: Did they arrest her? Or fine her? They did something to her, or they assessed a penalty. I forget exactly what. I'd have to look it up. But they punished her. They retaliated. [They assessed a penalty and when she didn't pay it, they seized her house by putting a padlock on her door handle and wouldn't allow her to enter.] They see something because she wrote that. So she contacted us, and we filed suit against the IRS [Internal Revenue Service]. It was just great. In fact, I think Life Magazine wrote an article about this. I don't know if it was in what I sent you.
MG: I am not sure if it was.
SP: Yes, but some publication just loved this. The federal court ruled, in fact, that the IRS had violated her rights, but they refused to assess damages on the grounds of what's known as qualified immunity. Actually, the leading case was in 1982, a case, Harlow v. Fitzpatrick. The Supreme Court basically said this: "Everyone makes mistakes. If a public official can be sued for damages every time she or he makes a mistake, no one's going to want to be a public official. They'll lose their life savings if they make a mistake. So we are going to create a doctrine known as qualified immunity. You're only liable for damages if the mistake you made was clearly you should've known it was a mistake. If it's an innocent mistake, a good-faith mistake, don't worry. We want to have good people in public service, and we know we're not going to get them if they're too timid and afraid to make a mistake.
So, the Ninth Circuit applied that test as they should, and we said, "No, this was clearly a mistake. No right-minded official could think that she had defaced the jurat by writing this statement above it. It is clearly and deliberately a violation of the First Amendment." But the Ninth Circuit disagreed and gave these guys qualified immunity. So she won the legal claim but lost the damages.
MG: Do you have to pay taxes on damages that you earn?
SP: Yes. Yes, you do. Unless--and this is a big unless--it's compensatory. You don't have to pay taxes on compensation. So if you're in a car accident and you are compensated for pain and suffering or loss of income, you don't. But if it's above and beyond that, then you do. So yes or no, depending on what the damages are for.
MG: Something I forgot to ask you about but might be a good place to pick up for next time are the polygraph tests that were being used in rape cases because there were a lot of articles about that.
SP: Yes, we wound up not having to file suit, fortunately, because they stopped, but yes, that was evil. They would require the women and usually never the perpetrator. They'd require the women [to submit to a polygraph if they allege they'd been sexually assaulted] and in an emotionally-charged situation. It was bad enough even asking them, but then to question them about it and to go over the details. An article had been written that women will have this highly emotional response anyway, and then to use that as grounds to--"Oh, we can't tell." I mean, the whole thing about it was awful, and this one prosecutor insisted on polygraphing all women.
MG: (Gerre Rickman?). [Jerry, I think.]
SP: Yes, yes. Right, it was (Gerre?), I think, he pronounced it. Yes, (Gerre Rickman?).
MG: Was that what inspired you to get involved in the "Take Back the Night" events?
SP: Did it inspire me? Well, I was involved in them anyway. I'm not sure that that added anything.
MG: Okay. Well, I feel like I have taken up a large part of your day.
SP: It's just amazing to go over this.
MG: It's amazing for me. This is really a privilege.
SP: It's incredible. All of the ones we skipped have a story, all of them, and again, it would just take years to go over this.
MG: Well, the good news is this is a really flexible document, so you could either get it on the record in a conversation with me or put a little paragraph in your transcript at some point.
SP: Yes, because every one of these reminds me of different things. Not every one of them, but many of them. Great. Terrific.
MG: Well, I will take that back, so I don't lose track where we left off.
SP: Yes. Okay, good. Basically, we went through the '80s, right?
SP: Although, here's one in the '80s, and it was one of the other cases I lost. I shouldn't have lost it, but I did.
MG: What case was that?
SP: Torres v. Grunkemeyer. 1984, '85. Maybe I didn't write it down. I certainly should have. Let's see. [He was an] Hispanic guy, who works in the capitol in Wyoming, and I think he's a custodian. I'm almost positive. [He] makes a statement about Republicans and is fired shortly afterward. We filed suit, and there actually was a jury trial. Unfortunately, he had done a few things that at least gave the jury a peg to hang their hat on. Wyoming isn't the most racially--what is it?
SP: Sympathetic state to begin with, yes. I have no doubt, personally, that it was race. Well, a combination of his race and his politics that got him fired and not whatever else they introduced. But the jury just didn't like the guy and rejected our damages claim, but it was another one of the cases that I did lose. I remember my co-counsel, Rick Wolf, just being so upset about it, as I was, too. We both felt miserable, like maybe we had let this guy down, or what else could we have done. He was doing it for free, as I was. Well, I get paid. Rick didn't get paid. He just volunteered. Yes, I felt really bad for everybody. There wasn't any question in our minds that this was an injustice.
MG: Yes, that sounds frustrating.
SP: Yes, I'm glad that I haven't lost many cases.
MG: No, you have an incredible record. It's very impressive.
SP: Yes. I've probably won well over ninety percent of my cases. I probably wouldn't still be practicing, I think, if I lost a lot of my cases. It would've been just too difficult for me.
MG: Is there an average record for lawyers?
SP: I have no idea. Of course, it would depend on what kind of law. Like if you're a public defender, you're going to lose ninety percent of your cases. But judging from the other people in my office, I think I have a very high percentage win record, yes.
MG: Well, I am glad that we have another chance to get together.
SP: Yes, yes.
MG: This is really fun for me. There is so much to talk about, and it is all so interesting.
MG: So, we will take a break for today if that is okay.
SP: Yes, just great. Just let me know when you're back in town.
MG: Probably Christmastime on my way home.
SP: Great, terrific.
MG: Well, thank you so much.
SP: My pleasure.
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Transcribed by Jesse Braddell 4/3/2017
Reviewed by Molly Graham 5/27/2020
Reviewed by Stephen Pevar 8/27/2020
Reviewed by Molly Graham 9/3/2020