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 March 11, 2017, in West Hartford, Connecticut, and the interviewer is Molly Graham. First, I want you to reflect on what has been going on in the news and your involvement in Standing Rock, and then we will go back in time to where we left off last time. [Editor's Note: The Dakota Access Pipeline (DAPL) is a 1,172-mile underground pipeline that travels from North Dakota to Illinois. It became operational in 2017. The pipeline's route is near the Standing Rock Indian Reservation of the Sioux Tribe in the Dakota's and threatens their water supply. In March 2020, a federal judge ordered an environmental review of the pipeline.]
Stephen Pevar: Okay. One reason why it's good to start there is because I've been reflecting on my work and on my career as a result of what has happened lately. I've never been more proud of working for the ACLU, and I've never been more committed. I think that if I had retired a year ago, I'd regret the fact that I was not in a position to do something about this. I'm just so upset by what is happening to the United States and to the world that I'm glad that I'm in the position to do something. Obviously, there are things that are occurring in so many areas that it's impossible for any one person to have an impact on most or even many issues, but I'm just glad that I'm where I'm at right now, so that I can do something.
I still am conflicted and have been for several years, on retirement. On the one hand, I know that I would enjoy retirement. I'm looking forward to retirement. I'm seventy now. My wife and I recently went to Mexico, and I just loved it. I didn't have to work. I looked around at sites. We had wonderful food. I went swimming whenever I wanted to go swimming. So retirement is very alluring, and I know that I would love it. And I'm also aware that--like there was one time where we had to walk up a steep hill, and I'm just not in the same shape, and I'm not going to be in the same shape in five years or ten years, so it is a sacrifice to continue working. But on the other hand, the reason that I went into the line of work that I did is because I want to make a difference, and now, as much as ever, I'm in a position to make a difference. So it's still a conflict, but I'm still convinced that I want to be doing what I'm doing. I still love it. I wake up in the morning enthusiastic, and wanting to go to work.
Also, right now, and I think that this has started--yes, it did. Since the last time we spoke, I'm teaching again. I teach every winter. Well, they call it spring semester, and that too is captivating, enthralling. I get to help shape people's minds on different issues and to make a difference. Even if I were to retire, I would be inclined to keep teaching, which defeats the retirement thing too. Right now, I just made a decision to continue doing what I am doing. It's very fulfilling. This is my third year teaching American Indian Law at NYU [New York University] Law School. The first year, I had nine students. Last year, I had fourteen students, and this year, I have twenty-one students. Students have told me that they're starting to get a little swell at the school about Indian law. Just by word of mouth, people are getting excited about the course, which obviously is just very gratifying to me that people are enjoying it, and I try to make it very interesting.
The case that I'm going to talk about in a minute, the Standing Rock case, it involves negotiation and discussion with lawyers from around the United States, and one conference call was scheduled while I had to teach. So, I wrote in. I said, "Gosh, I'm just so sorry. I'm not going to be able to make this one. I'm teaching." And one guy wrote back and said, "Well, why don't you see if the school could just patch in the class. I don't think any of us would mind if they were listening in." I said, "Wow, what a wonderful opportunity." That's exactly what I did do. I got emails afterward from students just saying, "We've never had anything like this in law school. Thanks for thinking of it." Actually, somebody else thought of it. Anyway, I've been able to, through my work, satisfy many needs that I have and many needs that I think other people have. So I'm just going to continue working.
MG: Did what's going on at Standing Rock play a role in your decision to continue working?
SP: No. I had already committed to working, and I am committed to working for several more years. I'm not sure how long. I've had, in the back of my mind, the year that my youngest child graduates college, but that was just an arbitrary--that seemed like a good time to keep earning money to afford to keep her in college, but she will graduate in two and a half years, and I may continue working past that. At least that's the first deadline that I would consider, in about two and a half years.
MG: Could you explain the context of what is going on at Standing Rock? When did all this start? I know it came to the public's attention in the fall last year, but what was going on before that?
SP: Yes, okay. Well, very quickly, because it's a long story. But to summarize, a large oil company decided to build a pipeline from oil fields in North Dakota to refineries in Illinois, and the pipeline is about twelve-hundred miles. It was originally routed in the central portion of North Dakota, which would have taken the pipeline far north of the Standing Rock Reservation, which is located, both in South Dakota and North Dakota. Because of opposition by white landowners, that they didn't want the pipeline on their land, it was rerouted south, so that it would need to go underneath the Missouri River a half a mile north of the Standing Rock Reservation. So a rupture of the pipeline at that location would be devastating, not only to the water and lands needed by and used by the tribe but for close to eighteen-million water uses.
When the change of the route was announced, the tribe opposed it. When the Army Corps of Engineers, which controls that portion of the Missouri River and the land adjacent to it, granted an easement to the oil company, the Dakota Access Pipeline, DAPL, the tribe filed suit in July of last year, challenging the easement. A court denied the tribe's motion, but water protectors, thousands of people, young and old, descended on this area and protested, and many other groups did. Although we don't know the exact extent to which President [Barack] Obama got involved, I think it's safe to say he did, and he convinced the Army Corps to reconsider, even though the Army Corps won the lawsuit and didn't have to reconsider. The Army Corps announced it was reconsidering. On December, I think it was, 4th of last year, the Army Corps announced that it had agreed with the two main principles of the tribe. Number one, that the tribe was entitled to consultation, that it needed to be consulted consistent with federal laws that recognized that Indian tribes have a unique position in our society and that when federal projects are being considered that would impact a substantial tribal interest, tribes should be consulted. It's similar to states: the federal government wouldn't suddenly build something on an Air Force Base in Massachusetts that would substantially impact other residents of Massachusetts without consulting the governor of Massachusetts.
Anyway, number one, because no consultation had taken place with the tribe, the Army Corps said we should halt the construction because of that. In addition, and probably more importantly, there are federal environmental laws that require an environmental impact assessment called an EIS, an Environmental Impact Statement, to be conducted, and that's the National Environmental Policy Act, NEPA, and that hadn't been done either. I doubt whether there has ever been a project of this magnitude on federal lands that did not have an EIS. It clearly violated federal law.
So the combination of the NEPA requirements for an EIS and the duty to consult with tribes, which bolstered the need for an EIS, the Army Corps said, "We have to halt the project, withdraw the easement, and have DAPL conduct the EIS, and then we will review the EIS." Well, [Donald] Trump campaigned on a platform, "If I'm elected, the DAPL line will go through, as well as the XL pipeline from Canada through Nebraska, and I believe into Oklahoma." I forget where the ending point is of the XL pipeline. [Editor's Note: The Keystone Pipeline system extends from Canada to Port Arthur, Texas. A fourth phase or separate branch, known as Keystone XL, has been proposed. It would consist of building a pipeline from Canada, that cuts through Montana and South Dakota, to link up with the existing pipeline in Nebraska. In 2017, President Trump made it an initiative to complete this fourth phase.] He has invested heavily in oil stocks and has many friends in the oil industry. So he was elected, and he did exactly what he said he was going to do. Two days into his administration, he issued an executive order and an accompanying memorandum, directing the Army Corps to expedite its consideration and to consider changing its position back, and that's exactly what the Army Corps did do.
Now, there's two companion issues involving Standing Rock. One is the one I just discussed, and that is whether there should be a pipeline. A totally separate issue, which the ACLU is also involved in, is the right of the protestors to march peacefully on federal land to show their opposition. Again, they're distinct. There didn't have to be protestors, but it turns out that there were. Likewise, there would still be the issue of whether to build the pipeline. But the law enforcement responded with enormous violence against the protestors. There have been over seven hundred arrests, and many of the protestors have been seriously injured by the force that has been used. I went up there in January for three days, and we interviewed a number of people. One young twenty-one-year-old Navajo boy may not ever see again out of his left eye. He had been hit with one of these beanbag projectiles that just hit with enough force to knock somebody back, and he was just hit right in the face. A number of people had been hit with rubber bullets and had concussions. Anyway, the violence that the government is using to suppress the protestors is a separate issue. The ACLU, unfortunately, doesn't have the resources to represent any of these seven hundred people, but fortunately, quite a bit of money has flowed into the National Lawyers Guild, and they have set up a system of providing representation to the protestors.
MG: Where does it stand now? Can anything be done to prevent the pipeline?
SP: Well, Standing Rock already had their lawsuit pending. They didn't have to pursue it after December 4th because of the Army Corps' decision to require an EIS, but given the reversal, the Standing Rock tribe basically resurrected the lawsuit and filed a motion for a preliminary junction. The ACLU filed an amicus brief. A hearing was held on the preliminary injunction, and the tribe made a decision, and it's their call. I would've made a slightly different one, but they made a decision to present, on an emergency basis, only their religious claims and not the EIS issue, not the NEPA issue. The judge--I guess now it's about ten days ago--denied their religious claim, saying that it will not likely violate your protected religious interest to build the pipeline, and the motion for a preliminary injunction is being denied on that basis.
The tribe still has the NEPA, the environmental issue, and that's the issue that the ACLU filed its amicus brief--or, I should say, we joined an amicus brief that was principally authored by the National Congress of American Indians, NCAI. The ACLU joined it. Thirty-four federally recognized Indian tribes joined it. Ten Indian organizations joined it. That issue is still there, and the court has set a briefing schedule on it, but by then, the oil will be flowing. DAPL has announced that it will probably start--it will give twenty-four-hour notice, but it'll be within days before the environmental issue is fully briefed. I hate always to second-guess attorneys when I'm not involved in the case, but from where I stand, I would've reversed the order. I would've gone with the environmental issue first because I think it's the stronger of the two, but again, they're in a better position to judge. [Note: in mid-2020, the federal district court finally did rule that the Army Corps violated NEPA when it issued the permit and the court ordered a halt to additional oil passing through the pipeline. That ruling is now on appeal.]
MG: Can you talk about what the repercussions could be? You mentioned risk to the drinking water, but also, we have people leading environmental agencies that have no interest in protecting the environment.
SP: Right, right. Well, as our brief points out, there have been hundreds of pipeline ruptures, hundreds. One, just a couple years ago, fouled thirty-eight miles of the Kalamazoo River. [Editor's Note: In July 2010, an oil pipeline ruptured inside a tributary of the Kalamazoo River in Michigan. It contaminated thirty-five miles of the river.] There have been huge problems with pipelines. One thing about pipeline rupture is that often you don't see it, and it's not stopped until millions of gallons [spill]. As I understand it, that there's going to be more than two million gallons a day in the DAPL pipeline, so even several hours or, heaven forbid, a couple days' worth of rupture before it could be stopped, would be catastrophic, and not only to the water needed by the tribe and all the surrounding land that's tribal land adjacent to the water, but that's where some eighteen million people get most of their water. So it's a huge issue and because of the substantial risk--it's not something that happens one out of a trillion times. I mean, there have been hundreds of these ruptures, and we cited two studies about this that proved that.
MG: Why do you think the rest of the world is not up in arms about this issue?
SP: I know. I don't understand it. First of all, we decided to take a very, what would I feel is a very reasonable position in our brief. We think that this is a middle ground because all we're asking is for an environmental impact assessment and a delay until it's done to make sure, number one, that DAPL is using the proper technique. They don't have as much to lose as the people who live there. Who knows what cost-saving mechanisms they've installed or what their track record is? But federal law already requires this. I mean, we enacted NEPA many years ago to make sure that people who are using federal lands in a way that could harm the environment had done a proper assessment. I don't know why people aren't insisting and why the federal government isn't insisting on the precaution of an environmental assessment. It just seems like a no-brainer. And [Scott] Pruitt. [Editor's Note: Scott Pruitt was the Administrator of the Environmental Protection Agency from February 17, 2017 to July 6, 2018.] When the first thing that the government wants to do is reverse or abrogate regulations that have been in place for many years designed to protect the environment and now to make it easier to pollute.
MG: In the article that you sent, one of the blogs, it said, "The federal government has once again betrayed the Standing Rock Sioux." So did something else happen in previous years, or are you talking about what happened over the summer?
SP: It happened in previous years. There's a long line of--for example, the Standing Rock have signed two treaties with the federal government, 1851 and 1868. Each of those treaties were treaties in which the Sioux relinquished vast landholdings as well as their right to protect them, to go to war against the United States, in exchange for a set of promises. The United States gets land and peace, and the tribes get promises. What they were promised is that by relinquishing all these millions of acres, they will then be able to keep their reserve, i.e., reservation. So they sign one in 1851. Well, whites continue to move out there. The cavalry protects them as opposed to the treaty, and whites now want more land.
So the Sioux Nation is now compelled to sign yet another treaty of 1868, which reduces their landholdings even further. But they still kept their most sacred land, which was the Black Hills. Okay, so that's 1868. Well, gold is discovered in the Black Hills, and then Colonel [George Armstrong] Custer announces all this gold in the Black Hills. [Editor's Note: In 1874, Lieutenant Colonel George Custer led the Black Hills Expedition and discovered gold, which caused prospectors and settlers to move there. Custer would later be killed in the Battle of Little Big Horn in Montana within The Great Sioux War of 1876, which stemmed from settler encroachment in the Black Hills.] Again, hundreds or thousands of prospectors go out West, trespassing on Indian treaty land. Custer should have been preventing that and enforcing federal law. I mean, a treaty is federal law. And, instead, [he] protected the trespassers.
There's a Supreme Court case called Sioux Nation v. the United States decided by the Supreme Court in 1980. [Editor's Note: The United States v. Sioux Nation of Indians is a 1980 Supreme Court decision that determined that the United States government illegally took possession of the Black Hills from the Sioux Nation. The Sioux Nation was awarded monetary compensation, but have not accepted it.] The decision goes at length into what I was just saying and about how President [Ulysses S.] Grant sent--and fortunately, it was preserved--sent letters to the generals out there, including General [William Tecumseh] Sherman, saying, "I am aware of these treaties, but we actually need to protect the white people," and telling the government, telling the Army, to ensure safe passage of the prospectors across Indian treaty land. So, there's just a long line.
One more example is, around the turn of the century in the 1900s, the government realized that so much industry was being developed in the Upper Missouri River, that dams needed to be constructed for flood control purposes. They thought that seven dams along this several-hundred mile stretch of river would be necessary. Well, a dam, of course, floods large land areas. Rather than flood any land area belonging to whites, they selected seven Indian reservations to flood, including Standing Rock. Lake Oahe, which is where the pipeline is being built--that's why Lake Oahe exists because that was one of the dam sites on the area. [Editor's Note: Lake Oahe is a lake created by the Oahe Dam on the Missouri River. The dam's construction was completed in 1962. The Standing Rock Reservation lost about 56,000 acres with the dam's construction through eminent domain.] It flooded the area of the Standing Rock Sioux. So, time and again, whenever the government has been in a position where they needed to choose, they chose in favor of whites as against the Indians. If you look at a map showing where the dams are located in the Upper Missouri [River], you'll see each one of them is on an Indian reservation. So it's well known, at least for people who have looked into it, that the government has constantly broken its promises that it has made to all the Sioux out there.
MG: Can you tell me a little bit more about what you saw when you went out there in January?
SP: Yes. Well, first of all, an interesting dynamic had just recently occurred. Here again, I'm reluctant to judge it. The tribe, for whatever reasons it has, came to the conclusion that the water protectors were hurting the tribe, more than helping. Initially, I think the tribe would have agreed that due to the public pressure of the protectors that this was one reason why the Army Corps changed its opinion in the first place and issued that halt [on] December 4th. Sometime after that, however, either the marches became more aggressive, or the reaction to them became more aggressive, and now that the tribe did have this court-ordered stay in place, there was less need to draw public attention to the situation, and if anything, the public attention might be hurting more than helping. So the tribe asked the protectors to leave. Many of the water protectors view that as a betrayal.
I went out there shortly after the tribe announced that, and I had already planned my trip. It wasn't because of this, but it turned out that I arrived a few days after this request had been issued by the tribe to please leave. It really placed the water protectors in a terrible dilemma. Because on the one hand, they were there to protect the tribe's water, and if the tribe is now saying, "We don't want you," what are they supposed to do? But on the other hand, the tribe felt that this might be bad for financial reasons, i.e., in response to the marches, the state--and without question, this wasn't an accident--the state barricaded the main road into the reservation, near where the protests were taking place. The state was able to defend that on the grounds that, "Well, we have to make sure that the water protectors don't interfere with the transportation. Maybe by stopping the road, the protectors would leave." There's any number of justifications. But the state knew that blocking the highway would be a stranglehold on the tribe. It's the main road that tribal members used to get groceries or to leave the reservation. The tribe has a casino, and I don't know what percentage, but probably the majority of people who come to the casino drive on that road. You can go around that road, but the other way around adds many miles. I'm sure that the tribe was losing money every day, and many of the water protectors felt that the tribe had caved into environmental and financial pressure.
So when I went there, it was several reasons. One is that the United Nations had assigned an investigator to look into claims of violence, excessive force. So we accompanied him. We were one of the organizations that accompanied him. We were there for that, and he held meetings every day in which a stream of people came in and talked about the violence. That's when I met that Navajo boy in one of those UN-sponsored meetings. We were there for that and we were there for our own purposes of investigating what the situation was, both with respect to the development of the pipeline as well as the violence against the water protectors.
So I went out to the camps. There were two main camps. I spent a good part of the day at the camps interviewing some of the people and just seeing what the camps were like. There were hundreds of people in the camps. People were donating money, and the camps were--I mean it was a rough situation, but they had food and clothing and firewood and built living areas. It was very cold. This was in January in North Dakota, so it was very cold, but there were still an estimated between seven hundred to a thousand people who were still there, waiting to see what was going to happen and saying that we're not going to move.
Ultimately, both the Army Corps and the tribe pointed out that the camps were in an area that was likely going to be flooded. Every year, the Missouri River floods, and there had been more snow than, I think, in ten or more years, and the flooding was going to be extreme, and the camps were in an area where it was undisputed that that was going to flood. So they had to move. They just had to move. Ultimately, they did move. I think some moved to just higher ground, but the vast majority have left.
MG: Is North Dakota one of those states that is seeking to loosen its laws in terms of protestors? Where if you hit one with your car, you will not be prosecuted?
SP: Someone actually submitted a bill, and maybe I'll remember the catchphrase, that's been like a field day against the water protectors, if somebody accidentally hits someone on a road who's protesting, that they won't be guilty of anything. [Editor's Note: In February 2017, North Dakota state representative Keith Kempenich introduced a bill protecting drivers who caused injury or death to someone who entered the roadway. The bill failed on a 50-41 vote.]
MG: Where does that bill stand?
SP: I think it's in committee, but yes, pretty amazing.
MG: Did the ACLU sort of brace itself for a potential Trump presidency before the election last year?
SP: It did. I think, like most people, we didn't think that he'd ever be elected. I mean, the polls showed him considerably behind. I think all of us were taken by surprise, but within three days, we had been inundated with donations. As I understand it, the first three days after his election, we received way more, in donations, than what we received in the previous year combined, and money has kept just pouring in. There's a lot of people who are going, "What can I do? I've got to do something." We're one of the organizations that intends to do something. So many people were donating money to the ACLU, and we've responded. We're hiring more staff. We've had a number of meetings now to strategize on what we can do. There's just instructions to everybody that if you have an opportunity to challenge one of these Trump orders on civil liberties grounds that you should do it and just let everybody know. It's one of the reasons why we're all so involved in the DAPL issue because of a response to what Trump did. People have given us money to do this, and we want to show them that we intend to do it.
MG: What are those conversations like in those meetings when you are deciding how to prioritize and what the issues are?
SP: Well, first of all, everybody is stoked. I just came back from one of those meetings last week, and it focused on immigration issues and his new executive order. We have an immigrants' rights program with several lawyers already on the program. Our new Legal Director, David Cole, has said we'll probably do one of these a month, and each month we'll pick a different issue. So this one was immigration, and it was focused on what had been done, which was nothing really short of a miracle, what had been done in twenty-four hours after he issued his executive order. [Editor's Note: On January 27, 2017, President Trump issued an executive order banning immigration from seven Muslim majority nations. The ACLU responded and got the ban suspended by a federal judge. Two other executive orders banning Muslim immigrants were later issued by President Trump. The third was upheld by the Supreme Court.] The way that we were able to respond was amazing. I mean, within twenty-four hours, we were in court.
So people were talking about what that involved and lessons to be learned, how to organize things like that and set up phone trees. This was new in the sense of mobilizing people from around the United States because of this particular action of Trump's affected people all over the place. We learned how to do certain things and not to do certain things. So we were strategizing about that. It was like after the football game--what could you have done better or what worked, or what didn't work? We spent an hour going over it.
MG: Are there plans in motion to tackle the latest ban in court?
SP: Oh, yes. First of all, he's doing exactly what he said he would do, and the people who voted for him wanted him to do this. So I've listened to interviews--NPR is doing a series of interviews, and many people are going, "Yes, it's about time, and this is why we [voted for Trump]." One woman just said, "I wish he wasn't so brash. I don't happen to like him as a person, but I sure support his policies, and that's why I voted for him."
MG: Do you want to talk about the other issue going on with Indian tribes in the other article you sent me?
SP: I can. Or, we can do it chronologically.
SP: Why don't we go back to chronological? Yes.
MG: Well, here is where we left off.
SP: Because that's my biggest case.
MG: Yes, okay.
SP: And probably, it will take a while.
MG: Sure. We had gotten up to some of your cases in the '80s, and I did not know if it made sense to look through them and see what pops out. Or, I could ask you also thematically. I have my notes organized in both ways. We had stopped right here.
SP: Okay. Let's see. Well, the first three are prisoners' rights issues. One deals with censorship. I think I've mentioned in the past that maybe a quarter to a third of my cases have been prisoners' rights cases in a wide variety of areas. These fall within that general category. The fourth one down, Libertarian Party v. Kundert, that was a fascinating case, and I'm currently litigating Libertarian Party II. It's not a spinoff, but it's basically the same issue. [Editor's Note: Libertarian Party of South Dakota v. Kundert is a 1984 district court decision on the constitutionality of South Dakota's election laws. The Libertarian Party was attempting to get onto the primary election ballot.] Again, I'll try to do all of these in a summary fashion, and if you have questions--yes, I must've already discussed the McLain case dealing with ballot access. One of the areas I knew nothing about until somebody asked me to take a look at this issue, and it turned out to be just a fascinating issue. Because of my interest, I've taken some other cases that deal with access to the ballot by third parties.
MG: Right. There was sort of a unique case with a unique guy that we talked about last time.
SP: Yes, Harley McLain. That's exactly right. [Editor's Note: McLain v. Meier was a 1980 decision in the United States Court of Appeals, Eighth Circuit regarding ballot access in North Dakota. Harley McLain was an independent candidate.]
SP: Well, because we had won that case, and that was out of North Dakota, and North Dakota is within the U.S. Court of Appeals for the Eighth Circuit, I had obtained a very good decision from the Eighth Circuit. Well, South Dakota is in the Eighth Circuit. So I was contacted by the Libertarian Party to challenge a similar law in South Dakota that I had just defeated in North Dakota. And I agreed to do it. So that's Libertarian Party v. Kundert. Kundert was the Secretary of the State of South Dakota at the time. We filed suit and won. The federal court found that the access requirements for a third-party, a minor political party, to get on the ballot were too onerous. They had been designed by the major parties in order to squelch competition, and the court declared them unconstitutional.
Well, I was contacted a year and a half ago by the Libertarian Party, to say that a bill had just been passed and signed by the governor that would restore, essentially, the same restrictions that I had successfully defeated twenty, twenty-five years earlier, and since I was still there, would I mind filing the same lawsuit all over again. So we did. One of my current cases is Libertarian Party v. Krebs, K-R-E-B-S, which we'll get to, challenging, basically, the resurrection of the same draconian restrictions and ballot access. [Editor's Note: Libertarian Party v. Krebs was a 2015 decision by the United States District Court of South Dakota in Sioux Falls that determined that South Dakota ballot access was unconstitutional.] That was an interesting case.
By the way, when the chief judge, and I may have mentioned this when I discussed, let's see--when was the Wolf case? I'm trying to remember if that was before or after. Have I told you yet about representing these firemen in Aberdeen, South Dakota, and maybe it was after this. Yes, it might have been after this. Yes, because I think it was '89. I may not have gotten there yet. But it was Wolf v. the City of Aberdeen. [Editor's Note: Wolf v. the City of Aberdeen was a 1989 decision in the District Court of South Dakota which protected the First Amendment rights of public employees.] It was a free speech case.
The point is that when Chief Judge Donald Porter in Pierre, South Dakota, retired, he invited someone from the national office of the ACLU to attend. She later told me that in his speech, thanking people for this award and retirement, acknowledgment, that he said that there were three cases that meant the most to him and that he felt were the most significant in his career, and two of them were my cases. One was this case, the Libertarian Party, and he commented on how proud he was and how critical it is to defend voting rights and to make sure that people in minor parties at least get access to the ballot. A second one was Wolf v. City of Aberdeen, which, if I haven't talked about, then it only means we haven't gotten to it yet because I view that as a very significant case of mine.
MG: Why don't we talk about it now? We haven't covered it yet.
SP: Okay. Yes, here it is. Here it is. It's 1990. It's several pages down if you want me to jump ahead by a couple of years.
MG: Yes, as long as you do not mind jumping back.
SP: Yes. The issue, in this case, is the free speech of public employees, an issue that I litigated a number of times in different contexts. This one started out so innocently. The city of Aberdeen was considering buying a new firetruck. The fire chief apparently had settled on this one truck, and a news reporter just happened to go to the fire station, probably never thinking that it would turn into anything, just to ask the people who work there what they thought about the firetruck. It's nobody's number one news interest, but to the city of Aberdeen, it involved a fair amount of money, and she just went out there to interview them. I said, "she." I think it was a she, but I'm not positive. She just asked these five firemen what they thought about the truck, and they all agreed that it should be this other truck and they gave their reasons. Well, the fire chief felt so threatened and embarrassed that he fired or demoted all five of them on the grounds that there's a provision in their policy manual saying that you cannot talk about fire department business without clearing it with the department head which would be him. They had given their opinions to a news reporter without clearing it, and he had found that they had violated their policy manual and disciplined all of them.
So they contacted the ACLU and what's so important and fascinating about that is that probably every federal agency in the United States and most state agencies have similar provisions like this. Often, employees, as a condition of employment, must sign them. They've agreed to run things by the public policy office or the press relations office, whatever it's called. But we agreed to represent them and filed a motion for a preliminary injunction on the grounds that public employees have free speech rights. In the same way as you could talk about the advantages of one firetruck over another because it involves the expenditure of public funds, so can they. They don't relinquish their First Amendments rights just because they've dedicated themselves to public service.
Moreover, these kinds of policy restrictions requiring what's called a prior restraint on free speech are unconstitutional. Judge Porter agreed and issued this wonderful decision, which is a published decision--you could look it up, Wolf v. the City of Aberdeen--in which he just champions free speech of public employees and holds that their discipline violated the First Amendment free speech clause. So, it's a wonderful decision.
MG: Did those guys get their jobs back?
SP: Yes. That's exactly right. Yes, they did.
MG: What was the case that made you think of that?
SP: Libertarian Party was one of the three cases that Judge Porter, in his retirement speech, said he was most proud of. A second one was Wolf v. the City of Aberdeen. So I just felt tickled that--I don't know. He was on the bench thirty-some years, and he selected three cases to highlight, and two of them happen to be my cases. I think I only filed two or three cases with him, and the fact that both of them he thought [stood out]. Federal judges, I'm sure they spend a vast majority of their day on criminal cases, and often they're chomping at the bit to undertake a juicy civil rights case. I'm quite sure that Judge Viken, in the case that I'll get to, maybe last, the one that you mentioned, is just thrilled. I get the sense in reading his decisions that he's delighted to be able to sink his teeth into some civil rights issues like this. [Editor's Note: The Honorable Jeffrey L. Viken has served on the bench of the United States District Court of the District of South Dakota since 2009. He was Chief Judge from 2013 to 2019.]
MG: Last time, we brought up, but didn't explore your work around polygraph testing in rape cases.
SP: Yes, I never wound up having to file suit, fortunately. I wrote a series of letters to the prosecutor who had this policy. Whenever a woman accused somebody of sexual assault, he required them to take a polygraph. A number of women contacted me just saying how degrading it was, and he didn't do this for other people, claiming violations of law or assaults, generally. Ultimately, as I understand it, he stopped, or at least he set up criteria, and he would polygraph both people and not just the woman. He narrowed it considerably, but we were threatening filing suit.
MG: That was (Gerre Rickman?).
SP: Yes, (Gerre Rickman?). Right, right. I'd forgotten his name. Yes, (Gerre Rickman?). Let me just look through and pick out some highlights.
MG: Did you say there is a new Legal Director at the ACLU?
MG: Steven Shapiro stepped down or retired? [Editor's Note: Steven Shapiro was the Legal Director of the national ACLU from 1993 to 2016. David Cole was his successor.]
SP: Yes, retired.
MG: Oh, wow.
SP: Yes, and that also gave me, because he and I started around the same time; I think maybe one year apart. He started his career with the ACLU with the New York Civil Liberties Union and then came over to the national office. I was actually at the national office longer than he, but not with the ACLU longer than he. He retired, and once again, I started thinking, "Well, maybe I should retire, also." But for the reasons I mentioned, I really don't want to. Oh, here. This is an interesting case. I'm skipping a few. Well, one, rather than skip. On the list, Torres v. Grunkmeyer. That's one of the few cases I lost. [Editor's Note: Torres v. Grunkmeyer is a 1985 case of the District Court of Wyoming regarding the employment of a janitor in the state capitol.]
MG: It says you "Settled/Won."
SP: Oh, okay. Well, we went to trial on one issue. Okay. That's right. I'm thinking about a different case. I'll get to that one. Okay, let me do Edgerton. I'll skip down to (Edgerton v. Krepel). That was a very interesting case because I had filed a number of lawsuits in Idaho as this [was], and I had come across a number of people, especially in south [Idaho]. Well, in the southern part of Idaho, it's a largely Mormon community, and either the lawyer on the other side of the cases were Mormon, or I had just knocked heads against people who were Mormon regarding issues. Well, this one was a Mormon family who contacted me and asked me to look into a case.
I just always am delighted when I get a chance to show people, on a real concrete level, that civil liberties transcend race, religion. You have to have one set of rules. So this particular family, a student had told a teacher that he believed some other students had brought in cigarettes into school. Well, the school went berserk at the thought that students might have cigarettes, and they started bringing in, one at a time, boys and girls into their respective locker rooms and bathrooms and strip-searched them. Well, I think most families would be abhorred by that, but Mormon families, in particular, have a tremendous sense of privacy. I mentioned Julie Giles was another situation where she was strip-searched, and this boy was strip-searched, and his family was outraged, and so was he, and they asked me to file suit, which I then did, on their behalf. [Editor's Note: Giles v. Ackerman was a 1984 decision of the United States Court of Appeals, Ninth Circuit regarding the constitutionality of a strip search conducted on Julie Ann Giles after a minor traffic arrest.]
Regarding the rights of students to have--well, the Fourth Amendment protects all of us against all unreasonable searches and seizures. So, the issue is reasonableness in a different context. You have one expectation of privacy in your home and a different one at the airport, and a different one at your job. Each one has to define what is reasonable in that context. So, the issue, in this case, was what is the reasonable expectation of privacy of a student in a public school--a fascinating issue. We claimed that these kinds of strip searches, if they felt that the child was violating a law, they could call the police because the police would then have to use a Fourth Amendment standard, whereas the school officials were saying that if school officials do it, and they're just investigating, that there's no arrest, that they have a different standard. We settled the case with a consent decree, a court order, essentially imposing a Fourth Amendment standard, the same standard that the police would have to use. So I was particularly happy with the result in this case.
Interestingly enough, not long after our case, the U.S. Supreme Court addressed that issue and essentially ruled the same way as we had settled our case. It's called T.L.O v. New Jersey. T.L.O., the initials for a child. So this case preceded that one, essentially. If we had had T.L.O., we would have been able to resolve this sooner, but we were breaking new ground here. [Editor's Note: New Jersey v. T.L.O. is a 1985 Supreme Court decision confirming that the Fourth Amendment does protect students in public school but ruling that a search of a student's purse who was in possession of marijuana did not violate the Fourth Amendment. ]
MG: What was the T.L.O. case about?
SP: Same thing, yes. I don't know whether it was drugs or some contraband, but school officials did there what these school officials did. They searched a student looking for contraband, and although the court interpreted reasonableness in a school context somewhat differently than in a home, the Court confirmed that you had to have reasonable suspicion and not just any wild idea that someone might have something. Yes, so that was a good case. Okay, let's see.
MG: Did you want to go back to Torres, or do you want to talk about that later?
SP: Let me talk about that later. Yes, I better look that up and get more facts on that. See now, all of these are great cases. Once again, we could be here for years if I do all these cases. Alright, let me mention the Todd case, which is the next case on the list. [Editor's Note: Todd v. the United States is a 1988 decision by the United States Court of Appeals, Ninth Circuit, which ruled in favor of the plaintiff. Donna Todd wrote "signed involuntarily under penalty of statutory punishment" on the 1040 she filed and was then fined by the Internal Revenue Service (IRS).]
MG: This is making me very happy. I do not mind spending the time.
SP: Alright, okay. Well, the Todd case, the reason it says, "Won/Lost."
MG: I was curious about that.
SP: Yes, because I won part and I lost part. Donna Todd is, I think a fair word is to say a tax protestor. She objects to, on political grounds, the way the federal government spends some of its tax money, and she decided to disclose her displeasure by writing something on a document she was sure the government would read, and that is her 1040.
MG: I think you told me this story.
SP: Okay. There's a box that everyone signs, and it's called the jurat. I never knew that J-U-R-A-T, the jurat, and that's the box, and it says, "Signed under penalty of perjury," blah, blah, blah. She wrote right above that, and I'm almost sure this is exactly the words--I can still remember it thirty years later--"Signed involuntarily under penalty of statutory punishment." I wouldn't sign this if I didn't have to. But that's it, and then she paid her taxes. So she paid her taxes and then gave the government a piece of her mind for free. They were so incensed that a taxpayer would register political dissent on a 1040, that they penalized her. When she didn't pay the penalty and objected to the penalty, they placed a lien on her home--a lien on her home just for those really innocuous words, "Signed involuntarily." She signed it.
This was during a period of time in which there were people not signing it or claiming twenty-two dependents as protestors. Outrageous things that the government had a legitimate interest in controlling, but she didn't. She just wrote this statement. Anyway, we filed suit seeking damages against the officials who were punishing her. The federal court agreed with us that her First Amendment right was violated, so we won that part, but held that we could not seek damages against these agents under a rule called qualified immunity, and it's an important issue in federal law. I'll try to explain it quickly. The U.S. Supreme Court, several years earlier, had recognized that because everybody makes mistakes, if a public employee could be sued every time she makes a mistake, no one would want to be a public employee because you are bound to make a mistake in any job, and if you could then be sued for the consequences, who would want to be a public employee? You're dealing with the public all the time.
So the Supreme Court came up with the doctrine of qualified immunity. Public employees are immune from damages unless they knew or should have known that what they were doing was unconstitutional. The first bite at the apple, the first mistake you make, you're free. If you make that same mistake again, you can be sued. Or, if the law is clear and you go ahead and make a mistake, you could be sued for damages, otherwise no.
The Ninth Circuit Court of Appeals-- because we appealed the district court's decision--the Ninth Circuit agreed that the IRS agents who punished Donna Todd made an innocent mistake, whereas we were claiming the law is so clear that you can't punish somebody for something like this, that they should not be entitled to qualified immunity, but the Ninth Circuit held that they were. So we won the First Amendment claim and lost the damages claim, and that's why it says, "Won/Lost."
MG: How did Todd feel about the results of that case?
SP: Vindicated. Yes, her most important interest was making sure that citizens have a right to make statements like this. She didn't have to write a separate letter. She could put it on her tax form, as long as she then complied with the form and paid her taxes. We were both disappointed on the damages issue, and I still feel that the court got it wrong. I still think that those people who were vindictive should have known that you can't punish citizens for that, but the Ninth Circuit let them off the hook.
Alright, I'll skip one. Although that one, Antoine v. Winter, two sentences on that. A young boy was arrested in Winter. Antoine, even though they pronounce it An-Tone, is a family that I became very close with when I lived on Rosebud. In fact, a little later on, we're going to see another case, Antoine. I filed two cases on behalf of this family. Well, this boy was arrested, went to jail, and you could tell that he was despondent, slightly inebriated at the time. They didn't check on him, and he hung himself. So I did file suit, and we settled that case. The family did get some damages, but we were trying to make a point that--now, no one will ever know whether they gave him less supervision or surveillance because he was an Indian boy. I mean, we'll never know that. But this community was known to, and I knew it to be--some people were racist or less concerned about Indian people. So I did agree to file suit, and we did settle the case.
Alright, the next one on the list is the one case I took to the Supreme Court. That's Allen v. Board of Pardons. That's the only one that I ever had go to the Supreme Court. Very quickly, the issue there was when a prisoner applies for parole and is denied, does he or she have a right to know the reasons why, where they fell short? Where, on the surface of it, they've met the criteria, they've served their one-third or one-quarter, whatever the state rule is, they have attended the education programs, they've done everything, and yet they're denied. Do they have a right to know the reasons why? The federal district court ruled against the prisoners, and we appealed it to the Ninth Circuit, and the Ninth Circuit ruled in favor of the prisoners. So the state of Montana then asked the Supreme Court to hear that issue. I wrote to my clients, and I just said, "Well, Montana is asking the Supreme Court to take this case." But the Supreme Court is asked to take--back then, it was around six thousand cases. Now it's about eight-thousand cases a year, and they take less than a hundred. "I would be very surprised if they took this case. They've turned down seven similar cases. It doesn't seem as though they're interested in addressing this," and they took the case. So, who knows why?
Again, quickly, the Supreme Court had previously taken a parole case and said that there's two kinds of parole statutes, one that gives total discretion to parole officials and another type that gives what's called "a protected liberty interest," a right to prisoners, that if they meet the requirements, they then must be given parole or told why they were denied. The court affirmed the Ninth Circuit and agreed that the Montana statute was on the side of the fence that created a protected interest and that these people had a right to know why they were denied parole. As a quick footnote, Montana shortly thereafter amended the statute to remove the protected interest. So we won, but at the end of the day, we didn't win the war.
MG: What was it like to be in the Supreme Court arguing your case?
SP: Oh, it was great. Someday, it'll be wonderful if I get to go back, but that's the World Series. You're nervous, you're excited. There was just so much about it. One thing is that Justice [Antonin] Scalia had been appointed not too long before, and I had him for contracts. [Editor's Note: Antonin Scalia was a Supreme Court Associate Justice from 1986 until his death in 2016. He lived from 1936 to 2016.]
MG: Right, this is when he said, "Now Pevar."
SP: Yes, that's it. I thought I had told you that.
SP: Yes. I'll skip one. Dunn v. McKinney. [Editor's Note: Dunn v. McKinney was a 1985 decision in the District Court for the District of Wyoming that ruled in favor of the plaintiff who was forced to resign his position as a deputy for having a friend who was indicted.] This is one of the cases that I'm particularly proud of. I may have mentioned earlier that there's two overarching kinds of civil rights cases: law enforcement and law reform. Law enforcement, which is probably seventy percent of the cases, the law is already clear, and you're just enforcing it. Police brutality cases are a perfect example, where you're not allowed to use excessive force. In each instance, the force that was used in that situation was excessive, and you're not making any new law. All of my prisoners' rights cases, the vast majority of them, were law enforcement cases, but the real cases that every civil rights lawyer loves to sink her or his teeth into are law reform cases, where you get to sit back and say, "What ought the law to be?" Dunn v. McKinney was one of those, and so was the strip-search case that I mentioned because the Supreme Court hadn't yet decided that issue.
Alright. Well, Dunn v. McKinney dealt with a general issue of free speech of public employees, or in this case, freedom of association, but it was a new area. Teachers were being fired for being lesbian based on their associations out of the classroom, or other kinds of associations. Someone was a member of the KKK, but was a great teacher, should they be fired for that alone?
Dunn v. McKinney was a case in which Charles Dunn was a deputy sheriff and working in the jail, I believe, but not involved with criminal investigations, and that's the critical part here. I forget exactly what his job was. His best friend was arrested for involuntary murder, a barroom brawl. The sheriff went up to Charlie and said, "Well, Charlie, because your friend Pete has been arrested, even though he's now out on bail, so you're not going to see him in the jail, this is a small community." Riverton, Wyoming. "It just wouldn't look good. I, as sheriff, have to worry about appearance. It wouldn't look good if you're palling around with a guy who we're prosecuting for involuntary murder, a homicide." Charlie basically said, "Well, gosh, sheriff, I've been talking with him every day. He's my best friend. Now's the time he needs me the most. This is just awful. I just can't not see my friend." And the sheriff said, "Well, that's an order."
Well, sometime later, I don't know if it was weeks, or months, or whatever, but Charlie just can't stand it anymore, and he calls up Pete, and he says, "Let's go to our old fishing hole and just spend the day. We won't talk about anything. Let's just fish together. I miss you." They go out there, and they fish, and wouldn't you know it, a member of the community sees them, reports it to the sheriff, and the sheriff fires him. So the issue was a freedom of association of public employee issue. What ought the law to be? As is so often the case, there are two competing interests here. The sheriff has a legitimate interest in protecting the public's perception of law enforcement. Everyone does. You don't want somebody on there who is suspected of certain things or whatever. I needed to come up with a principle to determine what side of the fence this falls on.
So I called up a sheriff, who I knew and who I felt--I just liked his opinion on different issues. I said, "John, you are sheriff of a small town. You must have these things come up. Do you prohibit your employee from associating with the grandmother or whomever has just been arrested?" He goes, "Oh, it comes up all the time. Half my force wouldn't be--I'm always arresting a cousin or a mother or a grandmother, and I've come up with a rule that makes sense to me. That is, if the crime is one that the public might perceive my employee participating in--like if I arrest someone for smuggling or selling drugs--then I say the freedom of association ends. But if it's not, then I think that freedom of association prevails, and the public simply has to swallow hard and say, 'This is the price of liberty.' People who work for the public sector have to keep their same civil liberties as anyone else unless there's a compelling reason to restrict them."
As soon as he said that, bells went off because that seems like a perfect, reasonable solution to a constitutional problem, and it resulted in the exoneration of my guy. No one could've thought that he was involved in the homicide. This was a barroom brawl. They might not like his friend, but they can't see him as implicated in any criminal activity. So I presented that to the court. I asked the court to establish that as a principle of constitutional law, and the judge agreed. So it was one of the times where I got to sit back and actually make the law. Since then, a number of other courts have adopted a similar rule involving freedom of association of public employees, but this is another case that is a reported decision. You could look it up, Dunn v. McKinney. Charlie Dunn was the deputy sheriff, and McKinney was the sheriff who fired him.
MG: Did Dunn get his job back?
SP: Yes. I'm trying to remember if he wanted his job back. He was entitled to his job back, and I just don't recall.
MG: Yes. I always wonder about that because if I went to court against my boss.
MG: Got my job back.
SP: Right, would you?
MG: The working conditions would be very awkward.
SP: Yes, exactly. I don't remember off the top of my head, yes, but that was a good case.
MG: They are all good cases.
SP: They're all good cases. Yes, they're all good cases. I'm not getting too far. MacLaird v. Werger is the next case on the list. A funny case actually. MacLaird was a hot-head juvenile and just got on the wrong side of Sheriff Werger. I forget exactly what he was arrested for, but he was in jail with several people, and the sheriff was walking out of the building one day. As some of the prisoners often did, if they had coffee grounds in their cup of water, they would just clean their glass by throwing the liquid out the window. Well, somebody did that, and the sheriff comes storming up. Nobody knew that anyone was even out there; they're just throwing out--and the sheriff comes storming up and demands to know who threw something out the window.
Well, the prisoners see this as a wonderful opportunity, and one of them says, "Oh, well, Sherriff, did it taste a little salty?" indicating it might have been urine and that they had done it on purpose; they were waiting for him. Well, he got so incensed that he placed all of them on a bread and water diet for five days to punish them. This case challenged a Wyoming statute that authorized sheriffs to place prisoners on a bread and water diet, and the court found it unconstitutional. That is a funny case. Okay. Ridgeway v. MHSA. That's the Montana High School Association. Did I tell you about that one already? [Editor's Note: Ridgeway v. Montana High School Association was a 1986 decision by the United States District Court of the District of Montana that banned sexual discrimination in high school athletic programs in Montana.]
MG: Is that the equal opportunities for athletes?
MG: Yes, I loved that story.
SP: Are you sure we stopped where--?
MG: Before we turned to our timeline, we were going thematically based on the research I did with all the articles you sent me.
MG: This seems much more comprehensive. So, if you refresh my memory, I will tell you if we've talked about it or not.
MG: That was the case that changed athletics for girls.
MG: You told me about scuba diving in Mexico, and someone brought it up.
SP: Yes, then it's in there already. That's a case I'm particularly proud of.
MG: Yes, you should be. It made a big difference. Thank you.
SP: Yes. [laughter] That's right. It made a big difference. The fact that I later had two daughters, both of whom were athletes, and by now, there's just equal opportunity. Not to say that there wouldn't have been without this case and other similar cases, but yes, Montana was like night and day between boys and girls, night and day. Almost all of those first several are prisoners' rights issues.
MG: Well, what does it mean to test the constitutionality of the insanity defense?
SP: Well, let's see which one is that?
MG: That is Potter v. Murphy, and then the second one after that too.
SP: Oh, yes. That's right. This was dismissed. I'm trying to [remember]. We didn't get an ultimate ruling, and I don't remember why.
MG: Well, it looks like there's a related case right below it.
SP: Oh, Balla [v. Idaho State Board of Corrections.]?
SP: Right. Psychiatric care for--now I remember. Potter and Balla. Murphy was a warden, and these two guys were prisoners, and both of them challenged conditions of confinement regarding medical care for mental health needs. We ultimately settled the case, in which the state agreed to provide better mental health care, hire more staff, have better evaluations, and better treatment. So, it turned out to be a very important case regarding--now I remember. We dismissed the issue in Potter and resolved them in Balla. I can't recall the constitutionality of the insanity defense, how that resolved itself. Idaho had a different insanity defense, a different burden of proof. I just don't remember how that was resolved, yes.
I may have mentioned previously that I have filed a few cases dealing with--this is Hill v. Bear Lake County. I don't remember if this was the first of the cases or if I had already mentioned it, but consistent with how religious some communities are in Idaho, they were distributing Bibles to fifth graders. We filed suit and got them to stop. If they wanted to set up a table on the sidewalk across the street from the school, they're free to do it. We weren't trying to stifle religious proselytizing, just not in the school, that's all.
Let's see. The Harden case, a couple down, that was a fun case. I'm sure that there were some articles in there about that. This was a Senior Center, and some women who were in their eighties--there was a new director, who changed some policies as to when meals would be served and where you could sit. I mean, some of them were almost funny changes, but the women were so upset about it that they complained, and the director said, "If you continue to complain, I'm not going to let you come here anymore." Well, this was their life. The senior center was their life, and we filed suit and got the senior center to recognize that they have a right under the Free Speech Clause of the First Amendment to complain about a policy in the Senior Center. These women were just--I don't know if it's in the articles I gave you, but there's a picture of one of these women. She's in her eighties, and what better client could you have.
MG: Yes. [laughter]
SP: Okay. Skipping down a couple, Mishler v. Nevada State Board of Medical Examiners. That was an important case. Another one of these law reform cases. Very quickly. Mishler was an out-of-state doctor who was lured. He was a neurosurgeon, a board-certified neurosurgeon, lured into Nevada, and the allegations were that the neurosurgeons in Nevada were upset. [Telephone rings.]
MG: If you want to take a break and get that.
SP: Mishler was a very well-known doctor and moved his practice to a hospital, I think it was in Reno, having been invited to join a practice of somebody there. The allegations--because we never went to trial, so I'll just say the allegations--are that he moves his practice and then he applies for a Nevada license, which are routinely given as a matter of course. I mean, to somebody who's board-certified, they don't have to go back to school or whatever. The board of medical examiners just simply refused to give him a license, and they never told him why. He's writing, and he has closed his other office. I think he was from New York, and the suspicion was that the Nevada board just didn't want the competition. They never gave him a reason and said, "We don't have to." So, I was actually able to use the victory I'd won in the United States Supreme Court, dealing with the right of parolees to get, under the due process clause, a right to know the reasons why they were denied parole.
So, I mean, it's one of the times where I'm able to use one of my own cases to help me win another case. The Ninth Circuit Court of Appeals agrees with us. I forget if they cite the Supreme Court case, but they might well have, that there were certain things that you and I have a particular interest in, like a driver's license or voting or whatever, and that if the state takes it away, they have to tell you the reasons why. The Ninth Circuit extended that principle to medical licenses. This was one of those things where you got to sit back and say, "What ought the law to be?" There hadn't been any law at this level, whether someone who is in his situation on the surface appears to qualify for a state benefit. The court agreed that even though no one has a right to a medical license or a driver's license, once the state creates a system and indicates that people with certain criteria will get that benefit, then anyone who was denied, has a right to know the reasons where they fell short. So they established that rule here, and that was a good outcome for him.
MG: Did he find out what the reasons were?
SP: He did find out what the reasons were and believed that they were pretextual and wanted to sue them for damages. At this point, I then transferred the case to a private attorney because the only issue left, now that we had won the constitutional issue, which was of most concern to the ACLU, was damages. A private attorney wound up taking the case and settling the case. I've done that a few times where the ACLU is interested in the constitutional issue and not so much in the actual damages, which takes a lot of extra effort and I would just find a private attorney with the permission of the client, of course, to take the damages part.
MG: What about one of the rare cases you lost, down at the bottom?
SP: Shepp, yes, okay. Wow. I hope I haven't blanked it just because I lost it. In fact, I lost it in the Tenth Circuit. What was the issue? Okay, let me come back to that.
SP: Yes, I lost it both. It's one of the very few cases I lost in the Court of Appeals. There's a number of cases I lost in the district court and then won in the Court of Appeals, but this is one very few--I will find it. Okay. It looks like the majority of the ones and the next [page] are prisoner cases. One that is of particular interest is the last one on the list, the Missouri Knights. [Editor's Note: Missouri Knights of the Ku Klux Klan v. Kansas City, Missouri was a 1989 decision by the United States District Court for the District of Western Missouri.] That's the Missouri Knights of the Ku Klux Klan. That was my Klan case.
MG: Oh, right. Where they wanted a television show?
SP: We talked about that.
MG: And how you did not tell them you were Jewish until the very end.
SP: Until the end, yes. That's the one that Caroline Kennedy wound up writing [about in] her book. [Editor's Note: In Our Defense: The Bill of Rights in Action is a 1991 book by Caroline Kennedy and Ellen Alderman. It discusses and emphasizes the civil liberties of Americans.]
SP: Yes, I actually have the book downstairs. I don't know whether I showed it to you.
MG: I don't think you did.
SP: She and Elaine Alderman selected one case to illustrate each of the Bill of Rights, and they selected this for First Amendment cases and wrote about it. On the next page, the first five cases are prisoners' rights cases. I was just filing so many prisoners' rights cases.
MG: One thing I had a note about, and I do not know if it has anything to do with these cases, but that you had sought to lobby the Wyoming legislature for passage of a state-enforced jail standards bill. Were you successful in doing that?
SP: I wasn't successful at the time. They may have eventually enacted a jail standards [bill], but yes, I wasn't successful at the time.
MG: That is interesting that you were successful in prisoner's rights cases, but not a jail standards bill.
SP: Right. They could have saved themselves a lot of money and protected the counties. Yes, many states just don't have minimum jail standards, which then requires us to start suing county after county over the same thing, partly because they know that their jails wouldn't meet those standards and that somebody who is then sued would have to defend against the standard. You could just see how difficult that would be while your own state says that you have to have so much space per prisoner, and you don't.
MG: Was there anything on the page before that you wanted to talk about?
SP: Well, the prisoner's rights cases, almost all of them dealt with overcrowding--jails that were horribly, horribly overcrowded, and you see that "Won/Settled," "Won/Settled." All of them were "easy" to win. The conditions were just so terrible, like this one, Prejean v. Board of County Commissions of Albany County. The jail was on the third floor of a building that had no fire escape. Just duh. How could you lose a case like that? It was an absolute firetrap for the staff and prisoners alike. A fire on the first or second floor, they would just be roasted. The windows are barred so you can't jump out, but even if you could, you'd have to jump three floors. That was one where the first thing that they did was install a fire escape, and they called it the "Stephen Pevar Memorial Fire Escape." They ultimately built a new jail, but the very first thing that they had to do was to build a fire escape.
All of these jail cases have something like that, where there was just some horrible condition that caused us to file suit. Similarly, most of the ones at the top were prisoners' rights. The Kersh case, which is the third down, was in Natrona County, which is Casper, Wyoming, which is the second-largest city, where the oil boom came and caught the town unprepared, and it brought more crime. People were sleeping on the floors in the jail. I mean, the jail was just horrible, and citizens were voting down bond issues to build a new jail or an extension to the jail. So many of these were relatively easy to win if you knew how to do it. I would say the majority of these.
The McKenzie case, likewise, dealt with Deadwood, South Dakota, which had recently approved gaming. They still have gaming there, but it's one of those situations where the sheriff, I think, welcomed the lawsuit. All of these say, "Won/Settled," because they ended in a consent decree. I didn't have to do anything more than file suit, and the county realized it would lose, and it would cost them way more to fight this than to settle it. So, "Won/Settled," means that we won the case through a settlement, and it was always a consent decree.
I may have explained that there's two ways of settling a case. One is called a settlement agreement, and the other is a consent decree. The difference between the two is that a consent decree is a settlement agreement that is then brought to the court, and the court has to sign off on it so that a violation of the settlement agreement is a violation of the court order. You could hold them in contempt of court. So, almost all the time, I insisted on the consent decree. Most defendants would say, "Well, we can settle this privately." "No, no, because if you don't reduce the population, I want you to be held in contempt of court." A settlement agreement that's not signed by the court is simply a breach of contract. The court can't enforce it. You have to actually file a new lawsuit for breach of the contract. Anyway, all of these that say, "Won/Settled," that's what that means. I insisted on a court order.
Okay. Here's a wonderful case, wonderful case, another First Amendment case. Maucotel--that's the sixth one down--versus Crnkovich. Crnkovich was the sheriff of Shoshone County, Idaho. We didn't have to prove this, and we didn't need to prove it to win, but probably the last sheriff that allowed prostitution. There was a brothel in the county, and whether he was paid or not paid, to allow it--most likely he was, but who knows. Anyway, five deputy sheriffs of his were so distressed by how he was running the sheriff's office, including allowing the brothel to exist and other shady things, that they decided to form a union and to try to get improvements, but they knew that if they did it by themselves, he would fire them, just like he had fired everybody else who spoke out against him.
So they went up to a sixth deputy, who they thought was also not happy with the sheriff and asked if he would join the union because they had contacted a union, and the union said, "Well, if you think there's enough support, we will send a delegate out there." So they started asking around. Well, one of the people they asked was on the sheriff's side and went to the sheriff. The sheriff then fired or demoted all five.
So this is similar to the other case involving the deputy sheriff, freedom of association, but this is freedom of speech. We sued the sheriff, and I will never forget the deposition and the lawyer who was on the other side. He and I since became very good friends. I mean, he was initially very supportive of the sheriff. I started going through--it probably took six or seven hours, and my clients were all there. One of them said that they had never seen this sheriff sweat before. This sheriff had walked in as haughty as he had always been. He was like Huey Long; no one had ever questioned him. [Editor's Note: Huey Pierce Long, called "The Kingfish," was the Governor of Louisiana from 1928 to 1932 and then Senator from 1932 to 1935. He lived from 1893 to 1935. He was assassinated.] I just started going through. I had obtained hundreds of pages of documents of his and mentioned the brothel. "Why is this going on?" He was scared. We settled the case, and all five were reinstated with back pay. When you get a chance to represent law enforcement because, usually, they think they're under attack by the ACLU all the time. To be able to represent these deputy sheriffs was just wonderful.
MG: I know we had talked about Wolf before.
SP: Yes, that's the Wolf case. The Brown case, let me just quickly say something about that. You see the First Amendment establishment clause. That was pretty much what ought the law to be. Brown was a girl who played basketball. Her family was either agnostic or atheist, and they never gave it another thought until she started playing basketball, and the coach was very religious. He was a teacher, very religious, and before every game, [he] kneeled down with the players to pray. She felt very uncomfortable. When she voiced her opinion about it, the coach said something very mean to her, and the players began to shun her. They wouldn't pass her the ball. He wouldn't put her in, and it was all over religion. We first asked, sent a letter to the school to say, to stop this and they refused to do it, so we filed suit. Then I think we settled the case. The school finally agreed that if the girls, on their own, wanted to pray, they could do whatever they wanted to. What made it unconstitutional was the involvement of the school official on school grounds. They could meet at a house before the game to pray, but they also couldn't discriminate against Brown. So that was a good case, an important case.
The next one down was similar. That was also involving a school student, and I just can't remember off the top of my head. If you want to, I could try to find the information on that, but it was another church and state case.
MG: Okay. I have a note on it, actually. "Classes offered by the Mormon Church during school hours and prayer during athletic events and graduation."
SP: Oh, is that Commers?
MG: I do not have that name, but I have Big Horn County School District.
SP: Okay, that's it. Good, good.
MG: I got that from the articles.
SP: Oh, good. Say it again.
MG: "Classes offered by the Mormon Church during school hours and prayer during athletic events and graduation ceremonies."
SP: Okay, that's exactly what it was. Yes, thank you. Yes, they were having religious classes in the public school, and then were having religious graduation programs. That's right. We won both of those. They agreed to stop.
MG: Well, why don't we get to the end of this page because I know we have been talking for over two hours.
MG: We have gotten through a whole decade.
SP: Wow, okay. Well, the last one is a graduation prayer case, Doe. There were two interesting issues in that. One was the issue of pseudonyms. This was a small town, and the family didn't want--there were several. The family didn't want to disclose their identities. The family was certain that they would be discriminated against, and perhaps even the child would be pushed around in school or whatever. So they were challenging the practice of the school to have prayer at graduation assemblies.
MG: This is in Idaho?
SP: Idaho, yes. So, the first issue we had to win was the pseudonym issue, and the judge ruled in our favor, and he agreed to meet with them privately, just to make sure that they were real people and that I wasn't creating them. It was just a great meeting. I think the judge agreed--I'm not positive on this, and if it's important, I could look it up--that we didn't even have to give the name of them to the lawyer for the other side. Any slip and the child could well suffer enormous discrimination at school. So I think the judge agreed that he would meet with the family and that he would certify to the lawyer for the school district that the student was indeed a student attending the school, because we're not suing for damages. The issue was whether they had the prayers or not. It didn't matter who the student was. They weren't going to depose them to see why they disliked the prayers. They had to bring with them a utility bill and to show that they lived in the school district and her report card, and the judge then certified, "Yes, they're actual plaintiffs, and I'm going to let them pursue this."
MG: Was this another prayer at graduation case?
SP: Right, yes. Yes, exactly.
MG: Yes, I have a note that the school board offered a compromise to avoid a lawsuit.
SP: I think we agreed to the compromise.
MG: What was the compromise?
SP: Not to have prayers, yes. I don't remember for certain, but I do think that we resolved that without having to go further, yes. I should make myself a note to look that up. I don't want to give you misinformation--both the Doe case that we just looked at and this next case, which is the third one down on top of the next page.
SP: Harris. Dealt with graduation prayer. I'm pretty sure that both had to ultimately be dismissed because the children graduated, and I wasn't able to find another plaintiff.
MG: Is this the case from Grangeville, Idaho?
SP: Let's see. Grangeville. I think so.
MG: Yes, I have a bunch of notes on that, actually. "The University of Idaho's decision to replace prayer at graduation with moments of silence. Co-counsel lawsuit brought by Grangeville family challenging practices of the Idaho County School District, including prayers at graduation," and someone named Phyllis Wright Harris.
SP: Right, Harris.
MG: Her sons were beaten up in school.
MG: Her cats were poisoned and killed.
MG: She changed her number because she was receiving threatening calls.
MG: Afraid to be alone. Her tires were slashed.
SP: Yes, that's exactly right.
MG: Can you tell me more about what was going on?
SP: Well, she was the plaintiff, and she had all these terrible things. In fact, we were able to use what happened to her as further evidence to keep Doe undisclosed. But I filed two cases around the same time on that issue. Yes, she was walking her dog, I think, and someone threw a full beer can out of the car window. It could've killed her.
MG: All because she was--?
SP: She was challenging prayer. She was challenging religion. I mean, there's few things that people take as seriously as religion. She was trying to get prayer out of public school. She did disclose herself and her children, and it was awful. Ultimately, they graduated, and we were never able to--I'm surprised I didn't fill out any of these pages on this side. Anyway, the case ultimately had to be dismissed because the child graduated. It took so long to get this case through the courts.
MG: It sounds like it had an enormous impact on her family.
SP: Oh, yes. It did. Okay. The Loya [v. Board of County Commissioners] case, that's the one involving Bill Lynn.
MG: Can you tell me about that again? I do not think we were recording when we talked about that.
SP: Okay. I may have the precise numbers wrong, but I'd be close. This is the one where the sheriff called me. His name was Bill Lynn. Really, I wasn't sure, at first, if this was a prank or if this was really the sheriff. I believe he had said that he had recently been elected, but if not, then during his tenure, the jail had gotten so terribly overcrowded. It had been initially built--and I'm almost positive this figure is accurate--for thirty-five [prisoners], and that the day he called me, there were a hundred-and-seventeen in the jail. They had put cots wherever they could, and the rest were sleeping on floors, next to urinals, wherever they could put somebody. In the cafeteria, in the exercise room, people were sleeping. This is the case where I took his deposition and asked what he thought about his jail being so overcrowded, and he said, to him, it's a symbol of man's inhumanity to man. Then, armed with his incredible testimony, we then filed for summary judgment, and the judge granted it and imposed a population cap of thirty-five. The county then had to find other places to house anyone above that. Ultimately, Bannock County built a larger jail.
MG: Do you want to tell the follow-up part of that story again?
SP: Well, two years ago--so Loya was in 1991. Some twenty-some years later, I was asked to give a speech at an Idaho Bar Association meeting that was open to the public, and there must have been a hundred-and-fifty people there. I discussed perhaps ten of my Idaho cases, and one of them was this case. I said what Bill Lynn had said and that he had called me. A couple of weeks later, I got an email from a friend of mine who said that he had just met Bill Lynn, that they were sitting at the same table at dinner, and that when my friend found out that that was Bill Lynn, he then recounted what I had said. Bill Lynn [said], "Oh yes, that's exactly what I did do. Next time you run across Stephen, say hello to him for me." So my friend gave me his email address. This was a little bit ago, and I haven't contacted him yet, but I would love to say hello to him.
This was just an example of a law enforcement officer who wants to do the right thing, and there are many. He was so distressed at being the sheriff of a jail that was so decrepit that he tried to get the county commissioners to give him more money, and when they wouldn't, he said, "Well, the only way I can improve things is to have a lawsuit." I had already sued a number of jails in Idaho. So he knew me, and he was hoping that I might be able to do to his jail what I'd done to other jails, and I did.
MG: Had he made other attempts to address these issues in other kinds of ways?
SP: Yes. I was his last resort, and I'm sure I was his last resort. I'm sure he tried everything he could--going up to the judges to see if they would sentence fewer people there, asking the county commissioners to float a bond bill, asking for temporary help. Yes, he had tried everything. I mean, the last thing he wanted to do was to go to the ACLU and be sued, and he knew it might cost him his job. I don't remember if he was reelected or not. He ultimately left and became the Director of the Idaho Sheriff's Association and called me at one point, some years later, to speak with sheriffs at the Idaho Sheriff's Association meeting. I mean, just a remarkable guy, and I'd be happy to give you his contact information.
MG: This whole time you are living in Colorado, in Denver?
SP: Right, yes.
MG: Had you met Laurel at this point?
SP: Well, I had actually met Laurel many years earlier. It's kind of a funny/lurid tale. My dad got remarried, and his new wife was Tracy. Tracy had two children, one of whom was Tim. Tim was dating Laurel and dated Laurel for ten years. I had always found her very attractive, and then they stopped dating, and they hadn't dated for about three years. I ran into Laurel and asked him if he'd mind if I asked her out, and he said, "No." And we then started dating. So I had actually met Laurel many years before we actually dated. I think it was thirteen years earlier.
MG: Where was she living?
SP: She was still in Connecticut, and I was in Colorado. The way we happened to meet up--she took a temporary job with a family in Aspen, and I found out that she was in Aspen, Colorado, so I contacted her there.
MG: When would that have been?
SP: That was in 1992. So I had been living there for more than twenty years. Yes, because I started living there in '76.
MG: Did you both live in Colorado for some time? Did you live together at some point?
SP: Well, first of all, Laurel is twelve years younger, and Tim was very good friends with my youngest brother. I had always seen Laurel as my brother's friend. It was a shock to her when I asked her out because she never looked at me other than a platonic friend. She was living in Aspen and stayed living in Aspen. In fact, for a couple of months after we were married, she still stayed in Aspen because she had a commitment to her employer, and we would see each other most weekends. Then, when her contract ended, that's when she moved down to Denver.
SP: Yes. Alright, the Gomez case. I'm going to mention that largely because of something that happened unexpectedly in that case. It started out as a routine prisoners' rights case dealing with the subject of what is known as access to the courts. Among the rights that you and I have under the First Amendment, is the right to petition government for redress of grievances, the right of petition. The U.S. Supreme Court has held that the right to petition as applied to institutionalized people, people in a mental hospital, in a jail, in a prison, means that the custodian must give you a writing instrument, like a pen or pencil, a piece of paper, an envelope, and a stamp. That's called access to the courts. For institutionalized people, the First Amendment right to petition is access to the courts. You have to be able to let a court know that you're being tortured, that you're being denied food or whatever. Well, we filed an access-to-the-courts case, claiming that the Idaho Department of Corrections was not giving proper access to the courts to prisoners. Several court decisions had come down during the time we're litigating the case that changed the nature of the case. The most important of which was a Supreme Court decision called Lewis v. Casey, and this came down just a few months before we're going to trial, a 5-4 decision written by Justice Scalia, which changes things dramatically.
Prior to Lewis v. Casey, the law had been, and it was in the Ninth Circuit, which is where Idaho is, that in order to win an access-to-the-courts case, you didn't have to show that any particular prisoner was prevented from pursuing a claim. If you could show systemic problems, such as an inadequate law library, inadequate paper, no pencils, or for Hispanic prisoners, no law books in Spanish--all you need to show is a systemic problem that inevitably would cause an individual to be denied access to the courts. One of the claims in Gomez was that Idaho, which had a substantial Hispanic population, had no books in Spanish and did not hire bilingual interpreters in the law library. So, if you were Spanish-speaking, you were basically denied access to the courts.
Well, we were ready for trial, and Lewis v. Casey comes down, reversing a Ninth Circuit decision and saying, "Oh no, you must prove actual injury," and that's a quote--"You have to show actual prisoners who were denied access to the courts." I then immediately sent a letter to the prisoner law librarians. The prison had a small law library, but then it had prisoners who were trained in the law. Some of them were very good, who work nine to five in the prison law library. Prisoners would come in who needed help in accessing the courts, and they would give them help. Well, they were my lead plaintiffs, and for many years, we would write letters back and forth to one another.
Now, there is no place in the prison that is off-limits to guards, but there was an understanding that my letters would never be read and that the prisoner law clerks were permitted to put some books in the back shelf with "Gomez" on the spine--that was the name of the case--and they would put my letters--because otherwise, where would they store my letters?--and their responses because the case went on for years and these law clerks changed. Anyone who was a law clerk could immediately get up to speed by pulling out the volumes of these letters and reading them. They would put copies of all my briefs in there, everything.
Well, immediately after Lewis v. Casey comes down, it changes the nature of the case. I then send letters, and I say, "Well, we all know that there are Hispanic prisoners who have been denied access because you guys are not bilingual. Now, we have to find them. Please start looking around and getting the names of the prisoners. We won't win if we just show systemic problems."
At the same time as I'm sending these urgent letters, asking them to find victims, a new employee of the Department of Corrections is hired to run the law library. He takes it upon himself, at five o'clock when the law clerks leave, to take down the volumes of those books and starts to read them, and reads my letter saying that we are now in serious trouble of losing this case after all these years because we all know that there have been Hispanic prisoners turned away, but we don't have their names. He then telephoned the Attorney General's office, the lawyers who have been opposing me all these years, tells them about my letters, and they tell him to photocopy them and to send them to them, unbeknownst to me; I might have well as CC'd them. They were reading them the same day they were coming in. He gets all the mail and then gives them--and as soon as he saw a letter from me, at five o'clock that night, he went to the volumes, took the letters down. He was doing this for nine or ten months; they were reading my mail.
I'm kind of laughing now because everything came out so well, but they then had a predicament because to them, my letters--and I still don't know how they came to this because all of my letters say, "We know that there are victims; we just don't have their names." They file a motion with the court and attach my letters, which means that they now had to reveal the fact that they were reading my mail, and accuse me of unethical conduct in having created an issue that did not exist. They said that my letters proved that there never was a good case and that I never had clients, whereas the letters clearly didn't say that. But they revealed the fact that they had been secretly reading my mail, which any high school student would say, "You can't read another lawyer's mail. It's attorney-client mail." So, to make this story short, we then file a motion with the judge to purge all of those letters and to dismiss their claim against me, and they wanted the case dismissed and me disbarred. The judge reads the letters, and goes, "Ms. Altig," the lawyer for the State, "there's nothing in here. Mr. Pevar isn't saying that he's making this up. He's confirming in the letters that everyone knows that there are victims. He just doesn't have the names. I don't know how you could come to that conclusion. I am denying your motion to sanction Mr. Pevar. And, I see here that Mr. Pevar has filed a motion to sanction you for reading his mail."
In fact, there was, and is, a code of professional responsibility that if you ever--and this day and age, it happens often where someone will hit the wrong button and a fax will go out to people who it shouldn't, and there's a rule saying that if you are the obviously unintended recipient of mail from an opposing counsel, that you need to notify the counsel right away that you have his or her letter and follow the counsel's instructions, and they didn't do that. What's worse here is they didn't get this unintentionally. They asked a guy to keep sending them letters. They had ten months' worth of letters of mine that they had just kept reading. On the eve of trial, they knew our entire trial strategy. They knew our witnesses. They had the inner workings of our entire case.
So the judge did sanction them and what was particularly stupid, on their part, is they appealed the judge's sanction to the Ninth Circuit. Now, prior to this time, the judge was a kind fellow who slapped them on the wrist, sanctioned them forty-five-hundred dollars, [and] told them to never do it again, but didn't submit his order for publication. It would've been--no embarrassment to them; nobody would've known about it. They appealed his sanction to the Ninth Circuit, and the Ninth Circuit just ripped them apart, both at oral argument and in the decision, and they published their decision. I mean, you could read this one also called Gomez v. Vernon, and it's right in there, the Ninth Circuit. One of the judges uses the word "chutzpah." [laughter] Oh, and another thing that she said, the author of the decision said, [was] that what the deputy's attorney general did cannot pass the "ethical 'smell test.'" That's a quote. They just ripped them apart.
This is an example of where any case has the potential of exploding into something so totally different. It doesn't happen that often, but this is a perfect example of where it started out as a really run-of-the-mill access-to-the-courts case. I've probably filed twenty access-to-the-courts case, but the two things that made this different is, one, literally days before trial, the Supreme Court comes out with a decision that changes things upside down. And the judge had to give us more time to prepare now for a different standard of proof, and then we find out that they're doing this.
MG: Did it change things for the Spanish-speaking inmates?
SP: Well, yes, it did, but for the wrong reason. The decision in Lewis v. Casey not only said that you had to prove actual injury, but it also held that access to the courts could be satisfied by a prison by merely giving somebody a form and a pencil and an envelope. You could eliminate the law libraries. You didn't need to have law books. All you had to do was to have basic instructions in English or Spanish. So it really crippled. It was just the worst possible decision, and it was a 5-4 decision that just changed the nature of access to the courts. So we wound up basically having to just dismiss the lawsuit because Idaho and every person could easily meet the new test. The only one we really went ahead on was the other claim in our lawsuit, which was a retaliation claim. Part of our Gomez case was that--and it was a small part, but it alleged that one thing that the prison officials were doing to deny access to the courts was that these law clerks were constantly being punished if they helped somebody. It was almost a direct line to the "hole" [the isolation cell]. If you helped somebody file what turned out to be a decent case, they would write you up, and you would end up in solitary confinement. So, we actually went to trial on that issue, and the judge found retaliation against twelve different law clerks.
MG: Oh, wow.
SP: Yes, yes. Okay. Well, that took a little bit longer than I thought.
MG: Worth it.
SP: Okay. Well, unfortunately, the next case is also a major case. Now, if you were ever to want to speak with any former client, she'd be wonderful.
SP: Biggs. I don't know if that was one of the ones [we had talked about].
MG: It sounds familiar. Refresh my memory.
SP: Yes, well, a Mormon community where the principal of the school, a guy named Koch, K-O-C-H, pronounced "coke," was a--what's the title? I want to say deacon, but it's not deacon. He was a high official in the Mormon church, and he was also a very violent man, and he beat kids up, but nobody wanted to touch him because of his position in the church. The school board kept overlooking the fact that he was beating kids up. So finally, Pam Biggs, who is a Mormon also, decided to take him on along with another mother. So we sued on behalf of two mothers and two children; both children had been beaten up by this guy. We sued both the school board and him and won the case through a settlement, but it took a lawsuit to finally get the school board to do something about it. But it was just terrible.
MG: Was he fired?
SP: He wasn't fired, but he left not long after that. It changed him, and it was very embarrassing for him. We had brought out evidence that he had beaten kids up.
MG: Where was this? Idaho?
SP: In Idaho. Yes, in Idaho. Every year, Pam Biggs writes me a letter. Every Christmas, I still get a letter from Pam Biggs. They were so appreciative.
MG: I can imagine. It does not sound like anybody else was coming to their aid.
SP: Right, and everyone was just afraid of this guy. Alright. I'm going to skip a couple that are interesting cases, but the Spearing case is one I may have told you about, about the police captain. Did I tell you about this one or no?
MG: Yes. He gave you the gun to say, "Thank you."
SP: He gave me the gun as a thank you. Well, that's the case. I think I told you about it.
MG: Yes, yes.
SP: Okay, yes. Alright. A wonderful First Amendment, free speech case of public employees, a whistleblower, and was fired because of it. Okay, let's see. I'm looking down. The next one that I think has--well, several that you see here are contempt cases. Those were very important. All of those were jail cases, where they didn't do what the consent decree required. Usually, it was overcrowding. They just didn't reduce the population.
MG: It looks like you represented Prejean again?
SP: Right. Now, it wouldn't be him. It would be whoever was the prisoner at the time. They would write to me, and they'd say, "We know you have a court order, and they're not doing X, Y, and Z." I would look into it, and then I would file a contempt action. Once in a while, I'd get a letter from a prisoner who didn't know that there was a court order, who said, "I'm in the Albany County jail, and there's three people sleeping on the floor." I'm going, "Sleeping on the floor? I have a court order." So once I got the first round of all these consent decrees, then in subsequent years, I would file contempt actions after the people who took it seriously were replaced by others who didn't take it seriously.
MG: I think this is the first time I see Alaska on here.
SP: Okay, let's see. Oh, Alaska.
SP: Oh, yes. Prisoners' rights, access to the courts--it was a run-of-the-mill case, but it dealt with photocopying. The issue here was, in order to access the courts, you often need to photocopies, and the prison refused to make photocopies for prisoners unless they paid for them. One way of stifling access was not to give photocopies unless you could pay for them and Hiser was indigent and couldn't afford to pay for photocopies. If he sent in a complaint, he couldn't keep a copy of it. He'd have to send in all his original documents, and some wound up not getting out of the institution. The courts wouldn't receive them. He asked that they be photocopied before they were mailed out, and they refused. So we filed suit, and we won that--"Won/Settled." They agreed to photocopy. Yes, that was Alaska.
The next one that I'm particularly interested in talking about--oh, yes. Well, Rayson v. Mortimer--do you see that one? That's another deputy sheriff--yes, that's right. That one dealt with a female deputy sheriff, who fell in love with a male prisoner. After he got out, they were dating. They ultimately got married, but the sheriff went up to her and said, "You have to make a choice. You either can continue dating him, in which case you must tender your resignation, or stop dating him and continue working here." We won. We filed suit, and it was settled. She was allowed to keep her job and keep her marriage.
MG: Oh, good.
SP: Right. But another one of those represent deputy sheriff things. The top of the next page. Are we on the same one? [Yankton Area Adjustment Training Center v. Oleson? Yes. That's the only case I've ever litigated dealing with disabled public school students.
MG: I thought there was a case in Nevada?
SP: Disabled students?
MG: In terms of access to buildings.
SP: Oh, yes. That involved college students. There's a law called IDEA, [Individuals with Disabilities Education Act]. And that's what this case involved. There was a boy who was doing well in this school for disabled students, and the mother, actually, an adopted mother. I just can't imagine. Do you think you could ever adopt a highly challenged child?
MG: I don't know.
SP: Yes. I don't know either, but I don't think so.
MG: It is amazing when people do, especially older children.
SP: This woman did. Shawn was highly challenged, mentally and physically, and she adopted him. First, Ms. Oleson took him in as a foster child, then adopted him. They were very mean to him in school. He was in a public school. You're supposed to mainstream as much as you can, and she was complaining about the fact that they weren't doing enough. They got so sick of mom that they threatened to expel the child, and they wrote it out. They just said, "If you continue harassing." They would say "harassing," but her letters weren't harassing. She was asking for things that she had a right to receive.
MG: This is two years after the ADA was enacted? [Editor's Note: The Americans with Disabilities Act of 1990 (ADA) is a federal law that prohibits discrimination based on disabilities.]
SP: It was a couple of years after this law, IDEA, Individuals with Disabilities and Education Act. That's what this case was, and we won. We went to trial, and it's another reported decision. You could read about it. The judge agreed that mom had done nothing to warrant any punishment against her or the child and that the school had improperly expelled Shawn. Yes, the case that you were mentioning, against the University of Nevada, dealt with the RA, the Rehabilitation Act. [Editor's Note: The Rehabilitation Act of 1973 provides civil rights and access to services to individuals with disabilities.] This dealt also with disabilities, but students under the Individuals with Disabilities and Education Act.
Okay. Let's see. So many prisoners' rights. Wow. It's amazing. I think I wound up suing at least twenty-five percent of the jails in Idaho and in Wyoming, at least, because once you sue one, people get to know you and the prisoners write you. There was just a domino [effect]. I just kept suing jail after jail. Okay. I guess the next one to talk about is the Skinner case, Skinner v. Uphoff. [Editor's Note: Skinner v. Uphoff is a 2002 decision of the United States District Court for the District of Wyoming. It ruled that prisoners were not being protected by the guards of the prison from violence. In 2004, after winning on the merits, the court awarded the ACLU attorneys' fees..] If you look over under fees, you see $390,000 dollars. And then in 2006, another $300,000 dollars. That indicates how many hours I spent on the case and then monitoring the State's compliance with the court order. That was a failure-to-protect case. Later on, I'm going to mention a subsequent failure-to-protect case in Idaho.
So all of these conditions of confinement cases seek to vindicate the Eighth Amendment. The Eighth Amendment protects all of us from cruel and unusual punishment. The famous line is, "You're sent to prison as punishment, not for punishment." So you have to get proper food, clothing, shelter, medical care. Then the Supreme Court has said, "Prison officials must take reasonable steps to protect you from assault by other prisoners. Otherwise, if you're beaten up by other prisoners, then that's cruel and unusual punishment." It's as if you're being beaten up by the state.
So this guy Skinner--and he's another guy who still writes me. He was moved into a cell block, and someone came up to him and said, "You're the guy who ratted on a friend of mine, aren't you?" Skinner goes, "No." It turns out that he wasn't that person. But there are two things that will get you killed in prison: [being a] child molester or a snitch. I mean, if you have that as an M.O. [modus operandi], you need to be in protective custody. So Skinner is now alerted that the people in his new cell block think he's a snitch, and he's been in prison before, and he knows how dangerous that is. So he immediately asked the guard on duty if he could speak with a supervisor. So he goes out, and he tells this lieutenant exactly what had just happened, and he said, "I've been around prisons before. I know what could happen to me." The lieutenant goes, "Forget it," and there was a sergeant in the room, too, and they both poo-pooed it. He goes back in, and fifteen minutes later, he's beaten to a pulp. He's kicked in the head--awful. So Skinner sends me information that he's not the only one who's been beaten up by other prisoners and that prison officials just overlook all the violence at this prison.
So we filed a class action, and it's called a "failure to protect" case. That's the term of art. They fought us tooth and nail. I asked for all of the records of assaults for the previous six years--thousands of pages. I spent hundreds of hours reading these files and finding patterns. Fortunately, the people who wrote the reports sometimes mentioned the fact that prisoners had told them that they were in jeopardy and that they sent them back in. And there were other written reports in which the guards who wrote them, thinking that people would ever read these, [said], "Well, we know that there's been quite a few assaults here, but we don't really see a problem." Just very incriminating things.
We ultimately had so much evidence that the state--I submitted the issue on summary judgment based on so much evidence, and I took the deposition of the director of the Department of Corrections. There were things like placing a guy back in the same cell after he had just gotten out of the hospital; wherever they had a bed, they just put somebody. The judge ruled in our favor. In fact, he found that there was a culture--one of the few times where somebody won that issue, where there was a culture of violence and a culture of staff suppression of information, and we decided to go for it because it just looked like that's what was happening, and the judge found it to be true. It's another reported decision. I mean, you could read what the judge had to say about the evidence.
MG: What does it mean that two years later, there was another Skinner v. Uphoff case?
SP: Okay. One reason why there were so many contempt actions is because these consent decrees would go on in perpetuity unless you bargained for some kind of sunset provision, and once in a while, I would agree to that, where I'd say that unless I have evidence of additional violations, this will expire in two years or three years or something like that. Otherwise, they just went on and on, so that I could get a letter fifteen years later, long after everyone but me has forgotten about it, and seek to hold them in contempt.
Well, in 1996, Congress passed a horrible law called the Prison Litigation Reform Act, the PLRA, the notorious PLRA. The stated purpose, the proponents in Congress were very candid and said that there's just too much prison litigation, and the purpose of the PLRA is to reduce it. They did a number of things to reduce it. One of which was to put a cap on attorney's fees, so that if you win, there's a formula and you only get a certain hourly rate. If you're suing for damages, a lawyer could only get a hundred and fifty percent of what the damages are awarded. So, for example, let's say you're a prisoner, and they didn't pull your tooth, and you're in agony for three days or three weeks, and a jury might award you ten thousand dollars. There's no lawyer who would take that case. They'd have to hire an expert witness, absorb all the cost, and if you recover ten thousand dollars, they would get fifteen thousand dollars in attorney's fees, a hundred and fifty percent.
So, in one blow, it wiped out all of the damages cases, except the most serious, because--I left out the most important thing--prior to this, the law was that if you won a case, the court would then have to give you an hourly rate based on all of your hours. So you could win a ten-thousand-dollar verdict for your client, but then get a hundred-thousand dollars in fees based on your hours. Well, the PLRA reversed that, but that's only where you are seeking damages and not injunctive relief. Here, I was seeking both damages for Skinner and injunctive relief. So I was able to get an hourly rate based on all the hours for the part of the case that I spent getting injunctive relief.
I never answered your question. The question is, what about the two years. Another thing that the PLRA did is, it said that every order entered regarding the condition of confinement will expire at the end of two years unless the plaintiffs can show ongoing violations. Basically, you'd have to win the case again. So, at the end of two years, the defendants in the Skinner case filed a motion to terminate the decree under the PLRA, and we were able to show that they hadn't yet completed some of the things that they were supposed to do. So I won that also, and they had to pay me fees for that. I agreed that they had done maybe sixty percent of what the court had ordered them to do, but not all of it. So sixty percent of the case was terminated, and we didn't fight that, but the other parts continued, because we were able to show ongoing violations.
MG: Was Skinner eventually released?
SP: He's still there. That's a really sad situation--some of these things you don't know who to believe. What had hurt him was that he had had three non-violent felonies, like breaking and entering--never an act of violence. A woman accused him of sexual assault, and I never want to contradict--a woman who he was dating. Because he's a three-time felon, he's given a life sentence. Three years later--and now he's been in prison, she has no reason to do this other than her conscious--she signs an affidavit saying that she made the whole thing up and that she's horribly sorry about it, and that's she's having trouble just living with herself and that he's actually a nice guy, and that she just felt jilted, and she falsely accused him of sexual assault. Skinner has a public defender present that, and the judge refuses to dismiss the charges and exonerate him. I still don't know what happened, but because it was lost--and there must be something that I don't know because it just seems as though if the victim recants he should be released, but he's still in prison even though the victim has now said that he didn't do it.
MG: Did you see the Making a Murderer documentary? [Editor's Note: Making a Murderer is a Netflix Documentary Series that details the story of Steven Avery, who has been imprisoned for sexual assault and attempted murder. It premiered in 2015.]
SP: No, but I've heard about it.
MG: Well, in that case, it seemed like there is so much evidence that the guy who was put in prison twice did not commit the crimes he was in jail for, but because the county did not want to embarrass themselves for having put this person in jail twice, they just kind of doubled down on their conviction.
SP: Right. I think that that's what they did. They said that there are some women --I think there's even a medical term for it--who have remorse, and they were saying that her affidavit is unreliable, that he actually did do it. So who knows? But he's still there.
MG: For the rest of his life?
SP: Well, potentially for the rest of his life, but apparently, the parole board, last year, and he sent me a letter immediately, they must have taken this into account, and they actually fixed his term so that he is eligible for parole, but he still has to serve a lot more years before he can [be released]. So maybe they'll also change their minds on that. He's the nicest guy, and he has no history of violence, none. Alright. The last one on the list, Antoine.
SP: Yes, okay. So, that's the same family as the boy who hung himself. This is another one of my big cases, and it's still going on, although this May, it will likely come to an end. This is one of the cases that if I were to select the top ten cases in which I made the biggest difference in somebody's lives, this would be one of them. So it's right off the reservation. Just for a quick explanation, what I mean by that is--I mentioned before the 1868 treaty, okay? This is one of the Sioux tribes that was involved in the 1868 [treaty]. In the 1851 treaty, the Great Sioux Nation was all the land west of the Missouri River that included what is now all of western South Dakota and part of Montana, which was all Great Sioux Nation. In 1868, the government forced the Sioux to accept nine separate reservations that were carved out of the Great Sioux Nation.
The Rosebud Reservation is in the southern part of the state, and it was originally four counties in South Dakota. Later, by statute, Congress removed these three counties from the reservation. They're no longer part of the reservation, but many Indians were living there because it used to be. Alright, Winner, South Dakota, is right about there. This is still the Rosebud Reservation, and it's still large. It's almost the size of Connecticut.
MG: Is that where you were?
SP: That's where I was. So all of these three other counties have Rosebud Sioux members living there. Well, in Tripp County, there's so many Indian families living there that in kindergarten and in the elementary grades, about one-third of the student population is Native. By high school, there's only one or two left because they're either expelled, or they can't stand it, and they leave. Year in and year out, dozens of Indian children would start out, and they'd all leave. So we took a comprehensive look at this, and it was during a period of time in which--not to say that we aren't now, but we have many other things on our plate. But we were looking at what was called the school-to-prison pipeline, the STPP, and this was one of our STPP cases. It was wonderful for me because it was my tribe, and I had lived there, and I knew about discrimination, and no one had to talk me into this.
So Antoine v. Winner School District. We filed suit on behalf of Indian families living there, accusing the school district of race discrimination. We had gotten files of disciplinary reports. I mean, you could just read it between the lines. If there was a fight between two white boys or white girls, it was, "Well, boys will be boys," or "You know how these things [are]." But if it was two Indian boys, it was a gang problem. Or, if Indian boys came to school with bandanas as so many did, that was a gang symbol. They would write it in there--"gang symbol."
There are a few statistics that just have stayed with me. There's ISS, which is in-school-suspension and OSS, out-of-school-suspension. In the middle school, the year before we filed suit, one hundred percent of the students who were given OSS, who were expelled for a period of days, were natives, one hundred percent. And they were less than a third of the population, but one hundred percent of the students expelled. So either Indian parents as a group are just the world's worst parents, who could not control their kids, or there's some discrimination going on. How could you explain that the vast majority of troublemakers were Indian? One of the two had to be the case. So, we file suit, and initially, the school district digs in its heels. We have a number of pre-trial issues. They just fight us over giving documents, but to their credit, I won't go so far as to say they realize that they would lose. I mean, that's my perspective, but the evidence was really clear, and they wanted to do what was best for the community, and they have. We entered into a consent decree with the help of a court-appointed monitor from the federal court, into a remarkable consent decree. They hired a new superintendent, a guy named Bruce Carrier, and I have publicly commended him to anybody who would listen, and he has done a remarkable job.
In the last three years, more Indian students have graduated, I bet, than in the last forty combined. He doesn't expel. He doesn't kick [out]. He rarely uses even in-school-suspension, never mind out-of-school suspension. Virtually, he has succeeded in showing that you can run a wonderful school without these kinds of disciplinary problems. The former superintendent said, "Well, these kids are acting out; we have to do something." He has found a way to avoid that, and it's made this huge difference.
The consent decree is set up so that it does include a sunset provision. If the school meets certain benchmarks for four years in a row--maintains it for four years in a row, the decree expires. So, the decree was entered in 2009. In 2013, at the first four-year mark, probably half of the things had been met for the four years, and they were dropped. May of this year, most likely, the school is going to satisfy all of the others. We have already arranged for all of us to go down and have a celebration.
MG: That is amazing.
SP: It's amazing. And Bruce Carrier, who's probably in his seventies, was going to retire a couple of years ago and agreed to stay on until May of 2017 because that's when he hoped he would complete the rest of the decree. He wanted to see it through. The number of lives that had been changed, not just Indian lives, but the entire community is beginning to see the difference, and they're doing things together. You're not going to reverse two-hundred years of prejudice overnight, but it's just a wonderful transformation, really a wonderful transformation.
MG: That is so exciting.
SP: Yes, it is exciting.
MG: I'll look forward to hearing how that trip goes.
SP: Yes, yes. It was originally set for May 18th, but we just got an email, and it may have to be either the 17th or the 19th, but it's going to be that week. We're going to announce that, in our opinion, the school district has now completed everything for at least four years, and that we're joining with the defendants to ask the court to terminate the decree.
MG: That's amazing.
SP: Yes, it is amazing. To be able to do it in the reservation where I lived and I know many of these families or their kids or grandkids--it's just great to go back there.
MG: Yes. How come Antoine was the name on here?
SP: It's a large family. This was one of the lead plaintiffs. Not the same family whose son [died] but relatives of theirs.
SP: I don't think so, okay. Okay. What time is it?
MG: I have no idea.
SP: I have no idea.
MG: I bet we can get to the bottom of this page.
SP: Okay, fine. Miller v. Murphy. [Editor's Note: Miller v. Murphy is a 2008 consent decree concerning the religious practice of two Muslim prisoners at Wyoming State Penitentiary. The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a 2000 law regarding religious practices and freedoms of prisoners.] Okay, that's an interesting one. That's an interesting one. Congress passed a law, and the abbreviation is there, RLUIPA; it's the Religious Land Use and Institutionalized Persons Act. It was passed. It protects religious freedoms of all of us, but particularly--well, in order to explain this, I have to give about sixty seconds worth of background. There was a series of Supreme Court decisions that upset and angered a lot of people. They arose out of prison issues, many of them, but it impacted religions generally because of what the Supreme Court held.
One of the rights that you and I have in the First Amendment is free exercise of religion. What the court held in a series of cases is that the government can do things that actually inhibit your ability to practice your religion, but as long as it doesn't do anything to change your religious belief, it's not unconstitutional. So, for example, this is one of the Supreme Court cases. There's a sacred territory for an Indian tribe that's now located in a national forest. The U.S. Forest Service, which administers that area, issued a report saying, "Indeed, this is the most sacred territory to these particular tribes, and yet, we are going to authorize a paper mill company to build a logging road through it because to go around it would be more expensive." It was entirely a matter of money. Now, you know that if this were Saint Patrick's Cathedral in New York and New York wanted to tear down the cathedral to build a road rather than go around it, you'd find a way to say that that violated free exercise. But what the Supreme Court said is, "We acknowledge the fact, as the Forest Service did, that Indian practitioners will have more difficulty actually practicing their faith, but we're not changing their belief. We're not telling them not to believe that or forcing them not to believe that that's a sacred site. We're just making it more difficult because we're building a road and committing what they view as a sacrilege, but the free exercise clause only protects a belief, not a practice." That's a shorthand way of summarizing the decision [Lyng v. Northwest Indian Protective Association, decided by the Supreme Court in 1988].
Well, many very devoutly religious adherents, both Christian [and] Jewish--this meant that their free exercise rights were being diminished also. So anyway, they pressured Congress to pass a number of laws. One of them, RLUIPA, applies to institutionalized persons. Some Muslim prisoners contacted the ACLU because during Ramadan, they have to fast during daylight hours, and the prison was refusing to accommodate them. So, they had to choose between not eating at all because the prison wouldn't even make a sack lunch so that at sundown, they could then eat their sandwich.
RLUIPA imposes a higher burden of proof—the state must show a "compelling interest" that requires the action the state is taking-- than what the Supreme Court said is required by the free exercise clause itself, which was merely having a "rational basis" for the action. So we won the case for the Muslim prisoners because the prison could not prove a compelling interest [for] why it could not make these sack lunches and why it had to ban those prisoners from engaging in certain prayer activities. So the short of it is, this was a very good RLUIPA case involving Muslim prisoners, and it wound up in a consent decree, and it's actually been very useful around the country for helping Muslim prisoners and other prisoners, Jewish prisoners who want Kosher foods. But this was one of the first cases, and it might be the only case that I'm aware of dealing with Muslim prisoners and their needs, especially during Ramadan. So it turned out to be--I was happy about that case.
SP: Then Yellowbear--also against the same prison system in Wyoming, and another RLUIPA case. I just don't understand these people. [Andrew John] Yellowbear was convicted of a very serious crime, but he's a traditional Native American practitioner who uses eagle feathers in his services. Eagle feathers, to most traditional native practitioners, are as important to them as a cross or a Star of David is to Christians and Jews. They just don't practice anything without their eagle feather. Yet, because eagle feathers weren't on the approved list of religious items, they refused to let him have an eagle feather in his cell. They just banned eagle feathers. I mean, why? You're not going to stab somebody with an eagle feather. You're not going to unlock your cell door with an eagle feather. I mean, why? So the same higher burden of proof under [RLUIPA]—the compelling interest test—applied here.
MG: Who was Lampert? I see that on here.
SP: Yes, Murphy was the warden of this particular prison. Lampert is the Director of the Department of Corrections. Yellowbear had appealed to Lampert, and Lampert affirmed the warden's decision to deny eagle feathers, and we just sued Lampert. They entered into a decree, and now he is allowed to have up to four in his cell. If he gets more than four, he's allowed to store up to ten in the prison chapel. I mean, just a no-brainer accommodation really, and we had to go to court over it. They had to pay me eight-thousand dollars in fees just to prove that point.
Okay, Riggs. Let me just look at--oh, yes. Riggs is a failure-to-protect case just like Skinner, but it was in Idaho. This was the case against the private prison. This is the one private prison case I handled. Idaho has eight prisons for men. This private prison had four times more assaults, prisoner-on-prisoner assaults, than the other seven combined, and it was run by a private prison corporation, CCA, Corrections Corporation of America. The facts there were just so outrageous. I mean, sickening. I mentioned a moment ago that your life isn't worth a plug nickel if you're a snitch or a sex offender. CCA cared only about the bottom line. They got paid based on the number of prisoners who were there. So, the more they could fill in, the higher their profit. In an effort to control prisoners, they placed gang members in their own cell block, and many prisoners will proudly say, "I'm a Sureño," "I'm an Aryan," or they will be tattooed with "Sureño." You could just tell what gang they belonged to.
So rather than place a Surenos with an Aryan, they created separate cell blocks for them. But usually, there weren't enough gang members to fill the blocks, so they would put in other people. Those other people were instant targets. And it was notorious. They actually came up with the concept of rent. You had to pay the gang rent on either a weekly or monthly basis in order to live there without being assaulted. The gang member would come up to you and say, "You have to give us twenty dollars in commissary a week, or we will beat you up" because everyone could purchase commissary. Also, if you were assigned there and you were gay or black [and] assigned to the Aryan [cell block]--CCA just did not care, and it became known as Gladiator School and if you were to Google "Gladiator School." If you were to Google "Gladiator School," you'll pull up articles about this prison, because that's what we called it, Gladiator School.
What happened, and I'll try to do this short, too. A prisoner named Marlin Riggs was living in one of these gang units, and they had been leaving him alone, for the most part, until one day they wanted more commissary, and came up to him. He figured this day would come at some point, and they said, "You have to start paying us commissary." He immediately went out and spoke with a supervisor, and, kind of like Skinner, they said, "No, go back in." Ten minutes later, he was badly beaten. He filed his own lawsuit, a pro se case. I had just finished--because of all my prison cases in Idaho, the judges knew who I was, and one of their court administrators called me and said, "Mr. Pevar, we have a pro se prisoner case. Would you be willing to at least look at it to see whether you'd volunteer to take it?" So I said, "Okay." I read it, and I went out, and I met with Riggs. One other thing. I asked around to see if whether this was a systemic problem, and someone had recently gotten a letter. I don't remember how they got it, but the Idaho Department of Corrections had done a study, and they're the ones that found that there were more assaults at this one prison than the other seven combined, and it was in their report. So I already knew that this was a problem.
So I went out, and I said to Marlon Riggs, "Marlon, we almost never take individual damages cases. In fact, I don't think I have ever taken an individual prisoner damage case, but we do take one damages case combined with a class action," as I did on Skinner. I said, "Would you be open, if I were to take your case, to allow me to amend the lawsuit and add the class action?" He said, "Definitely, that's what I want. I don't really care about the money. I'm in this to try to show to the federal courts what CCA is doing." So, we did, and soon afterward, I found a lawyer to represent Riggs on his individual case, and that's why the case became the Kelly case. Riggs went out, and the rest of the case became Kelly v. CCA, or the warden at the time. This was a failure to protect case.
We did the same thing as we did in Wyoming. I asked them for all of the assault files for the previous three years. There were hundreds. I read them all. I came up with patterns, presented it to them. The same thing--the court-appointed a mediator and we entered into a consent decree. The most important provision of the decree dealt with staffing. There just weren't enough staff. So we got a certain staffing requirement. Well, after the decree is entered, I start getting letters from prisoners saying, "We didn't have a guard last night." I would write to the CCA, and they'd say, "Of course we had a guard," and they would send me the name of the guard. They'd send me the log. I'd send it back to my clients, and I said, "Maybe you were asleep or something, but here's the log." They said, "That just can't be true. There wasn't a guard. I was up most of the night. There was no one in there." Or other people would say, there's supposed to be two guards and there was only one.
Under the PLRA, there's a two-year termination date. About four months before the termination, I get a letter--to this day, I don't know [from] whom, but it had to have been a guard--four pages typed, saying the logs are falsified. If you ask for the logs for E-block and F-block, you'll see that "Jones" is listed in both. Sure enough, we found that they were falsifying the logs. We presented this to the court, and the judge went ballistic.
MG: I bet.
SP: CCA actually did a study of their own. They selected seven months during the, now close to two years of the consent decree. They selected seven months, only during the night shift, or the day--well, one of the two shifts, and they found 4,800 hours of missing guards--months' worth of guards. Anybody who even walked through the prison-- as the warden claimed to on a daily basis-- would have to notice that all these missing bodies. All 4,800 time slots were filled in with names. There were names there of people who weren't even in the building. Some names were listed as covering three, four, five posts. I mean, unbelievable. I shouldn't say, three, four, five. We didn't find anywhere there was five, but two or three.
SP: Frequent. Three different guards ultimately decided to testify on our behalf. All were female guards who were just sick and tired, and all of whom had testified that because there were so few guards, they were at risk of assault because often they were alone in units that were supposed to have two, three, four guards. One testified that she was out on maternity leave, and when she came back, she found her name had been written down by administrators of the prison for numerous hours. When they knew that she was on maternity leave, hey had listed her as working.
SP: Yes, yikes. So we file for contempt. The judge granted contempt. I mentioned, a little while ago, that the PLRA places a cap on hourly rates. Well, the facts were so egregious that we decided to seek what's called a multiplier. In a bunch of non-prison cases, courts have granted either twenty-five percent, fifty percent, sometimes a doubling of the attorney fees based on the exceptional amount--well, the term is exceptional work for exceptional results, and we decided to seek a multiplier. There wasn't anything in the PLRA that prohibited multipliers, but it certainly seemed that Congress wanted to cap the hourly rate, but it was silent as to whether district courts could award multipliers.
So the district court awarded me a two hundred percent multiplier, doubled my fees, and CCA appealed that, and the Ninth Circuit affirmed, affirmed both the contempt and the fee award. But this Riggs case turned out to be a huge issue where CCA was really caught with their hands in the cookie jar. They had saved themselves hundreds of thousands of dollars by just not staffing the posts and lying about it. Fortunately, the governor who had received a large campaign contribution from CCA and who was their biggest supporter was pressured into not renewing the contract, and CCA is now out.
SP: Yes, good.
MG: I bet we have been going close to four hours.
SP: Really? Let me just check.
--------------------------------------------END OF INTERVIEW--------------------------------------------
Transcribed by Jesse Braddell 5/12/2020
Reviewed by Molly Graham 6/10/2020
Reviewed by Stephen Pevar 9/4/2020
Reviewed by Molly Graham 9/4/2020