The Fight is On

Let me start off by saying it is so unbelievably daft this thing wasn’t settled by an apology and a handshake. 67% of Denfeld High’s freshman class is deficient in reading; 75% deficient in math. We have students entering high school with fifth grade level math skills, and our addlebrained school board is locked up in an ugly, internecine fight. For the past decade, the school board has been by far the worst failure of representative democracy in this city.
And that’s putting it nicely. Believe me, I’ve heard it put worse.
Clearly the Board’s minority members have a point when they question the legal advice of the district’s attorney, Kevin Rupp. Rupp told the News Tribune in December that the Johnston hearing “probably will take place in early January.”
I’m no legal eagle, but my assessment of that prediction was: “Fat chance.”
Sometimes I wonder if the majority members of the Board, Superintendent Gronseth and their attorney are drinking from a separate water fountain in Old Central that should be tested. All of the above seemed to think they would just slide quickly over one big, nasty bump, and the Lone Ranger would disappear into the sunset.
The Board voted to proceed with this colleague extermination in December. How did intelligent people, and especially an attorney, fool themselves into believing they were going to get a hearing scheduled in January? Who ever heard of the legal system moving that fast during any time of the year, much less during the holidays?

A month turned into five.

The hearing is now scheduled for May 11th . The venue hasn’t been announced yet, but the spectacle will most likely take place in Old Central High--the district’s administration building.
One of three outcomes is possible from the hearing: (1) Retired Hennepin County judge, Myron Greenberg, will find no proper cause exists to remove Mr. Johnston from office, and the majority members of the school board will show rare wisdom and follow his advice. (2) the honorable judge Greenberg will say no proper cause exists, but the majority members will unwisely ignore his recommendation and vote to boot Johnston him off anyway. (3) the judge will say “boot him as far as you can,” and the Board majority members will hoot in jubilation.
Before we even get to May 11th, however, there’s now going to be a preliminary round to this fight. It should have been pretty obvious to everyone from the onset that the Lone Ranger wasn’t the type to slink away from this contest. Even his detractors have to grudgingly admit he’s tough and courageous. Unwilling to sit passively around and wait for the district to throw the first punch, he opted to make a proactive legal move. He hired some very competent attorneys and set about to challenge the constitutionality of the entire process in federal court.
In a statement released on March 4th, 2015, the day his case was filed in U.S. district court, Mr. Johnston wrote:
“The five defendant (majority) board members of Duluth Public Schools, ISD 709, are preparing to remove me from elected office for expressing my views on School District issues. They did so by passing a resolution on Dec. 2, 2014, that proposes that I be removed from the School Board based on comments I have made. But expressing my views is what I was elected to do, and what I have a right to do.
The First Amendment protects the right to free expression. Federal law also forbids the defendants from retaliating against me for expressing my views. By adopting their removal resolution and now scheduling a weeklong hearing to begin May 11, my five colleagues are violating the First Amendment and federal law.
After they passed the resolution in December 2, I told them that what they are doing is illegal and would result in a federal lawsuit. It was their choice to move forward and to waste the School District’s money.
So I had to file a federal lawsuit to protect my rights—as well as the rights of School District residents, other board members, and anyone who is thinking of being a board member.
My lawsuit asks the federal court to do what my five colleagues should have done—cancel the hearing scheduled for May.
As an elected member of the Duluth Board of Education, I have the right and obligation to express myself freely pursuant to the First and Fourteenth Amendments of the Constitution of the United States of America and consistent with the privilege accorded to elected officials. And I have the right to express and otherwise advance political beliefs and ideals that I was elected for.
I also have the right to freely associate with my domestic partner and I have constitutionally protected advocacy on behalf of my domestic partner.”

Our blessed rights.

The First and Fourteenth constitutional amendments protect citizens’ rights of free speech, free expression, free association and the freedom to petition our government for redress of grievances.
Somewhere in there, I suspect the Lone Ranger has a case. His lawyers believe his rights have been so clearly violated, they are seeking a preliminary injunction. One of the key arguments of their case is that the Board’s Code of Ethics provisions “are unconstitutionally overbroad, and violate Plaintiff’s free speech and associational rights in numerous ways.”
One of the softest parts of the squishy Rice Report is the repeated allegation that Johnston violated the Board’s Code of Ethics. Code provision #9, for example, referred to numerous times, states that Board members should “avoid being placed in any position of conflict of interest.”
In the Lone Ranger’s case, he would have had to avoid getting reelected. His interest in pursuing hard facts about the fallout of the Red Plan is inherently conflictive with the Board majority’s interest in burying all those facts under a big happy face. Mr. Johnston contends the other side started playing dirty, by harassing his domestic partner, who is a district employee. The Rice Report charges that his attempts to intervene in this alleged harassment was a conflict of interest.
The Rice Report is also replete with petty episodes of Art Johnston allegedly violating provisions 5, 8, 10 and 11 of the Code by generally being a pain in the ass and continually bringing up unpleasant things about the school district and criticizing the job performances of administrative staff, especially the Superintendent. One entry involves an incident from the 3/18/14 Board meeting, which Rice records as a violation of Board’s Code. During the meeting, it is alleged that the Lone Ranger was grievously unethical when he “publicly addressed Gronseth’s work performance (italics included.)” Rice cataloged all the items about the district Johnston found “acceptable”: a decrease in staff; a cut in curriculum; large class sizes; loss of students; bonds near junk-bond status; a large deficit and a large increase in local property tax.
The majority members did not want the dirty laundry of the Superintendent’s job performance examined in an open forum. The legal issue boils down to: is it a breach of ethics for a school board member to list the real, persistent problems of a school district at a public Board meeting, or is it a violation of that representative’s right of free speech to deny his ability to speak about those problems openly?
There’s good reason to bet the courts will be inclined to come down on the side of the second point. Art Johnston was re-elected overwhelmingly by his constituents, a clear indication that the majority of fourth district residents felt he was representing their interests by speaking up about district problems. If their representative’s right of free speech is in any way curtailed--by extension, the free speech rights of those citizens have also been censored by their government.
This part of the constitutional case is laid out in court documents in the following language: “The Code of Ethics is unconstitutional as applied to Plaintive because…his removal from office (is) based on…‘comments’ and ‘claims,’ even though (those statements) are protected by the First Amendment, and (because of) remarks at public Board meetings, even though those remarks are protected by the First Amendment.”

The primary purpose of the First Amendment is to protect dissent.

Free speech is the bedrock of our democratic system and the federal courts are often predisposed to uphold this right. The Lone Ranger is arguing that the Board’s Code of Ethics, vaguely written, is essentially being used by majority members to gang up on and retaliate against a minority member for speaking dissenting viewpoints they don’t want to hear. In court documents his lawyers declare that the Code itself is “unconstitutionally vague…and permits arbitrary and discriminatory enforcement.”
Again, it doesn’t take a legal genius to see that a case can be made that the majority’s underlying motive is at least in part to rid themselves of a Board contrarian, who continually speaks up about things they’d rather keep quiet. If the evidence proves this is true in any way, it’s hard to see how a judge wouldn’t find the Board’s resolution for removal to be in direct violation of the First Amendment.
If they do fail to win the free speech argument, Johnston’s lawyers appear ready to challenge the legality of removing someone from any position, much less elected office, through the use of a nonbinding Code. (The word “should” prefaces the Code’s 13 provisions.)
The initial hearing is at this point scheduled for April 16th, in St. Paul. In one sense, the case is unusually streamlined. There are only two exhibits included in the Plaintiff’s filing: copies of the Code Of Ethics and the Board Resolution to remove Member Johnson from office.
If the Lone Ranger should prevail in his argument that his right of free speech is being violated by the Board’s actions, then the week-long hearing scheduled by the district’s attorneys for May would likely be prohibited from proceeding. The May 11th hearing is not an actual court hearing, but is mandated by statute for removal of a school board member. If it does take place, testimony will be under oath. It will be a mix of law and theatre, sort of like a TV court. The event is open to the public, and will likely be newsworthy. Previously redacted statements will no longer be hidden from the public. In other words, all the nastiness that has been flying around ISD 709 is going to be on full, public display.
Even if the feisty Mr. Johnston wins his first round in the federal court, a decision in his favor could be stayed until the other allegation made against him--alleged assault against the Chair and the Superintendent--goes through the May hearing.
The Lone Ranger will also be forced to participate in the May hearing process, if he loses in federal court. Even if he loses twice, however--both in federal court and in the mandated hearing--he still won’t be out of bullets. He could file an injunction against his removal from office, based on the fact that he hasn’t been found guilty of malfeasance or nonfeasance.
Malfeasance is the commission of an unlawful act by a government official. Even the allegations of assault do not, at this point, rise to this level of offense, because they have not been criminally filed or proven. No other unlawful acts are alleged. Nonfeasance amounts to grossly failing to attend to the duties of an office--not attending meetings regularly, etc. No one could argue the Lone Ranger hasn’t been performing his duties as a school board member.
A possible countermove by the district’s lawyers against an injunction would be to try to meet the definition of malfeasance by filing some kind of criminal charge, based on the assault allegations. They could also try to make the argument that a finding of malfeasance or nonfeasance is not required to meet the threshold of “proper cause” under the statute. The ensuing debate around that issue could land the whole circus in State court, and conceivably, somewhere in the future, in the big tent of the State or Federal Supremes.
So much for a month’s ride and one quick nasty bump!
It should have been evident this case was going to get more involved. This is a tussle between an elected official and the government he is part of, and truly gets at heart of representative democracy.
The potential cost is considerable. The district has already spent upwards to $80,000, and the bill could rise fourfold or more. Say what you will, but Art Johnston is certainly showing uncommon commitment to principle by putting himself through this ringer and writing large checks to lawyers. He’s already budgeted $100,000 out of his own pocket for the first legal rounds alone. His stated his reason for going forward is to protect “the rights of school district residents, other board members, and anyone who is thinking of being a board member.”
Certainly a fair number of Duluth citizens believe their rights have been abused by ISD 709. To put it diplomatically, school district 709 hasn’t been exactly a beacon of democracy since Keith Dixon stepped into this town, ten years ago next July. Our sacred vote was high-jacked and free speech has been treated like a doormat in the boardroom numerous times.
The school district is prepared to spend thousands of taxpayer dollars intended for education to nullify an election and give a gadfly the boot. This is just the kind of bad pr our public schools don’t need, but the fight is on. Is the Lone Ranger a troublemaker, or a hero--defending democracy and Duluthians’ right of free expression?
All I’ll say is: don’t be surprised if you spot a magnificent steed rearing up on the rim of the Duluth bluff, and hear a fearless voice calling out, “Hi-Yo, Silver!”