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Courtroom #1 in the Federal Building on East First Street wasn’t designed to accommodate a large number of the nosy or noisy rabble. Thirty people would push capacity on the few polished benches that look like church pews. Plenty of space was available to sit down though, for the May 4th hearing of Art Johnston’s First Amendment lawsuit against school district 709. The feisty citizen at the center of the firestorm sat humbly on one of the benches with the common folk. Board members Bill Westholm and Mr. Johnston’s long-time arch enemy--Board Chair, Judy Seliga-Punyko--perched themselves in front of the public, with the school district’s attorneys.
Once the judge was seated, the Lone Ranger’s lawyers asked him to stand up, so everyone could see the man Seliga-Punyko et. al. are accusing of all kinds of disruptive and dastardly things. Dressed in suit and tie, the alleged villain had cleaned up well. Art Johnston looked every bit the upstanding school board member his constituents have demonstrated they believe him to be, by twice electing him with big margins.
No high school debate.
Right out of the gate, judge Michael Davis pounced on the lawyer presenting Mr. Johnston’s case. Demanding a clearer explanation of a legal point, he barked out with forceful, withering scorn: “This is not high school!”
The attorney, Steven Aggergaard, admiringly did not lose his cool. He handled himself well. By the time the hearing was over--an hour and a half later--a tough Federal judge and everyone else in the room could see he wasn’t some bumpkin country barrister, and that Art Johnston had hired a very competent legal team.
The 99.99999(decimal point into infinity)% of you who didn’t show up missed an eloquent verbal exercise, a well-argued debate about a bedrock point of law: just what is free and protected speech, especially when it comes to the people we elect to speak for the rest of us?
For the past decade, a pushy cadre of movers and shakers have trampled with impunity upon the rights of the citizens of Duluth, dominating everyone with their (almost 100% incorrect) point of view. The public school district’s power brokers were challenged only by a few ragtag citizens, easily dismissed. Just sitting in an environment that for once wasn’t completely controlled and pre-rigged in their favor was a wonderful experience.
Federal judge Davis was a sharp and astute jurist. It was very heartening to watch a higher, controlling authority pause, silently rub his chin and actually think about what has been going on in Duluth. After one interminable pause, the judge looked up and sent out a crystal clear message that he wasn’t about to dismiss the dissenters as they’ve been so cavalierly dismissed by this town’s mainstream media and intentionally blind-deaf-and-dumb establishment. His honor’s respect for the value of governmental dissent was expressed with this unambiguous observation: “Gadflies make the best laws…Mr. Johnston has a right to speak out. I’m not going to stop that.”
Minnesota Nice versus the First Amendment.
One tenet of the plaintiff’s argument was that paragraph four of the Board’s code of ethics was “unconstitutional as applied, and on its face.” Aggergaard told the court that he’d been unable to find the language used in paragraph four in the behavior code of any other school district. Paragraph four states that Board members should “refrain from disparaging remarks about other Board members.” A very nice Midwestern sentiment, of course, but Aggergaard argued the language is unconstitutional because “disparagement is not defamation…(So) even if disparagement can somehow be proved, it is protected expression under free speech.”
Aggergaard said a Google search for language matching paragraph three of the Duluth Board’s code of ethics resulted in 7450 matches, obviously indicating that many Boards consider this language governing behavior to be very important. Paragraph three says Board members should “render all decisions based on the available facts and independent judgment.” The attorney argued that using his independent judgment to render decisions based on fact “is exactly what Mr. Johnston did…Furthermore, it is Mr. Johnston’s job to criticize and express minority views.”
Where’s the harm?
Aggergaard requested the court to grant Mr. Johnston “injunction and declaratory relief” against further prosecution. The judge questioned him closely about whether any irreparable harm was being done to Mr. Johnston’s ability to represent his constituents and/or defend himself.
“Irreparable harm--that’s your biggest hurdle here.” The verbally deft Aggergaard argued that the actions taken by the Board amounted to “First Amendment retaliation” for his dissenting views. He said the Board resolution to remove him was “in and of itself retaliation…This is not speculative harm. The harm has already been done.” He argued that the Lone Ranger’s ability to represent his constituents’ interest had been “chilled.” He said the Board majority’s impugning legal charges had left “no breathing space” to allow district issues to be fully debated.
The attorney presenting the district’s case, Margaret Skelton, argued that the Aggergaard’s arguments had failed to “show irreparable harm…and that Federal Court wasn’t the place to eliminate the potential for possible harm…” She argued that there had been no irreparable harm done to Johnston at this point, because “no adverse action has been taken yet.” She said there was no way to know the outcome of the administrative hearing, the separate legal action being pursued by the district. No one knows yet what the judge’s recommendation will be from that hearing, or what the Board will decide to do with his recommendation, she argued.
Skelton disputed there was any basis for Johnston’s suit. “There’s not an ongoing violation of Federal Law. His (Johnston’s) speech has not been censored.” She argued that the Lone Ranger hasn’t chilled out at all; that he’s still speaking his mind during meetings. She even went so far as to argue that it was really the Board majority’s free speech rights that were being violated: “They have a right to express their disapproval with member Johnston’s behavior.” Rather than a violation of the law, she argued that the majority members’ prosecutorial action was justifiable as “an execution of their duty to keep meetings orderly and dignified.”
She claimed the bulk of the case did not did not involve Mr. Johnston’s use of speech, “but refers to his conduct.” She used this opportunity to toss in a few incriminating (disparaging?) remarks about the Board gadfly’s alleged “disruptive” and “abusive” antics.
The judge was not unsympathetic to her argument. At one point during the proceedings he asked, “Isn’t there more than just (Johnston’s) constituents’ interest involved here?” During Skelton’s presentation he took the bait again when she dangled it in front of him, declaring that Mr. Johnston “can’t use the First Amendment to wrap around assault or other obvious ethical violations.”
Each time he leaned towards the district’s way of looking at the case, however, he swung back stronger the other way, to the birthright all Americans have to speak up and give dissenting views: “Gadflies have made this country what it is, pointing out what governments and organizations are doing that are inappropriate. That’s what the First Amendment is all about.”
Another exchange of note occurred when attorney Skelton tried to argue that paragraph four of the code of ethics was only twice referenced in the Board resolution to remove member Johnston, suggesting Johnston’s lawyers were using it as a “red herring,“ a distraction from the real legal issues. The judge made her read several charges out loud from paragraph 2(d) of the resolution, and forced her to sheepishly admit that every one involved paragraph four of the code, even if investigator Mary Rice didn’t see it that way. Not only did the exchange expose the weakness of the attorney’s argument, but it also showed the courtroom what sloppy, quasi-legal, conjecture-ridden claptrap the Rice report is.
Judge Davis’ strong inclination towards protecting the right of the Lone Ranger--our resident gadfly--to speak his mind had to make the district’s attorneys nervous. The racism charge leveled against Mr. Johnston has already been found to be completely baseless. The assault charges also appear baseless, certainly overblown and difficult to prove. The conflict of interest and ethics charges will be torn to shreds. Malfeasance (defined as the “performance of an act by an officer in his official capacity that is wholly illegal and wrongful”) must be met under Minnesota law to remove a Board member. If the charges the Board majority is throwing around fail to rise to that standard, a federal judge has demonstrated a strong disposition to come down like a hammer on the side of free speech.
*Update: just before this issue of the Reader went to press the school district announced a settlement! According to one of the television news outlets, the majority Board members backed off their charges because they “wanted to avoid an expensive Federal lawsuit.” They also would have lost.
Art Johnston responds
I received a letter from a school district attorney stating that the Board of Education of Independent School District No. 709 will unilaterally rescind the December 2, 2014 resolution proposing my removal from the board. This letter followed another full day of unproductive settlement discussions, most recently on Monday. I am thrilled they have finally changed their minds. I look forward to focusing on what I was elected to do—to speak freely and advocate for what I believe is best for the Duluth Public Schools. This is a victory for the people I represent in West Duluth, all the people in Duluth that want transparent and accountable government, and all school board members throughout the State of Minnesota who are now protected from precarious removal.
This is the result that I sought from the very beginning. If my colleagues follow through on their promise, I am extremely pleased with the result. Last week Chief Judge Michael J. Davis of the United States District Court for the District of Minnesota made absolutely clear during a hearing in Duluth it is improper for the Board of Education to remove a member for expressing his views.
The allegations against me—including the disturbing allegations of assault and racism—were baseless distractions from what I was elected to say and do. I am thrilled my board colleagues appear to have finally recognized this.
I sincerely regret that the School District spent thousands of dollars to investigate the charges against me and to bring the removal resolution, only to withdraw it after appearing before Chief Judge Davis. The entire school district needs to put this behind it and concentrate on the many problems facing our schools. I intend to continue to do my best to fulfill my obligations to the voters who elected me and to the children of Duluth.