The National Education Association Rhode Island and NEA South Kingstown have filed a Reply Memorandum responding to the arguments of the Goldwater Institute on behalf of Nicole Solas and her husband Adam Hartman opposing the unions’ lawsuit seeking a Temporary Restraining Order prohibiting the South Kingstown School District and School Committee from releasing certain records.As detailed in prior posts, the union lawsuit contravenes clear Rhode Island Supreme Court precedent that prohibits outside persons (like the unions here) from seeking injunctive relief to prohibit release of records requested under the RI Access To Public Records Act (APRA). Only Solas/Hartman and the school district/committee have standing to contest the APRA process.I covered the standing issue as did the Goldwater Institute in its Response to the TRO motion (please see these posts for full discussion).
The union Reply Memorandum attempts to create a couple of standing distractions. First, the union argues it has standing to represent its members. Okay, so? The problem is that the members have no right to intervene in the APRA process either, so that the unions are doing it in a representative capacity doesn’t change anything.Second, the union argues that it has standing to assert a claim for Declaratory Relief. That again is not the issue. The issue is that the relief it seeks is relief the RI Supreme Court has specifically said is not available to persons who are not part of the APRA process because those persons have no standing. So for the union to argue it is entitled to sue for a declaration as a procedural matter ignores that substantively it has no standing to intervene in the APRA process.While I think the union arguments are distractions, they probably are the best the union could argue since clear RI Supreme Court precedent is against doing what the union is doing here.What’s more interesting to me in the Reply Memorandum is that it smacks of the sort of collusion between the union and the school district/committee I suspected the moment the lawsuit was filed. For those of you who watched too much CNN or MSNBC about “Russia collusion,” a collusive lawsuit is not illegal or unethical. It simply means the parties on each side of the caption have a common interest in seeing a particular result, so there is no real contested dispute for the court to resolve.I explained this in my first post about the lawsuit:
My initial take is that this smells collusive. South Kingstown doesn’t want to produce records and the union is helping them out. The lawsuit purports to prevent disclosure of “private” information, but the public records laws and Solas’ requests pursuant to those laws only require the district to produce public records. The district has been very aggressive in asserting exemptions and redacting documents, so the union’s concern and rush to court seems peculiar, at best.
I expanded on this collusion concept after the unions filed for an emegency injunction:
Fourth, I suggested in the prior post that this “smelled” collusive. Whether there was “collusion” in the sense of active cooperation or not, I can imagine a scenario in which there is no real dispute here. South Kingstown is sick of Solas’ public records requests and the embarrassment she has brought the district, and the School Committee even considered suing her then backed away after public outcry. The unions also are sick of Solas, have held at least one meeting warning about her (see prior post), and want her to go away as to public records. So both the plaintiff (the unions) and the primary defendants (the district and School Committee) are aligned in their interest in having Solas’ public records requests shut down in substantial part. This easily could have resulted in a stipulation so-ordered by the court denying production of certain records and subjecting other records to a burdensome and endless review process, essentially shutting Solas down. But there’s a problem — Solas had to be named because she is the real party in interest as the requester, as the unions admitted in the complaint:
9. Defendants Solas and Hartman [her husband] are named and included only insofar as Plaintiffs are required to do so pursuant to G.L. 1956 § 9-30-11 which provides that “[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights 0f persons not parties t0 the proceeding.”
My suspicions appeared to be confirmed yesterday when I saw a local TV interview with the Executive Director of NEA-RI, who suggested that the unions would be happy to let Solas/Hartman out of the lawsuit:
Bob Walsh, the union’s executive director, said he agrees that Solas should have access to the school’s curriculum because it’s a public document. But told Target 12 that NEARI thinks some of Solas’ other requests involve material that should not be made public under APRA.Walsh said the lawsuit has two goals: “Stop the school committee from releasing anything that’s 100% protected under law, usually involving collective bargaining,” and ask the court to “impose a balancing test on whether individual names should be released — whether the privacy interests of individual teachers outweighs any underlying elements of the requests, and if so, what do they do.”Walsh also said that even though the lawsuit names Solas as well as her husband, the central focus of the litigation is about stopping the school committee from releasing certain information.“The only reason she’s named in the complaint is law requires all interested parties to be named in the complaint — this is not a dispute with her at all,” Walsh said. “This case has nothing to do with Nicole Solas.”If Solas asks to be removed from the lawsuit in court Monday, Walsh said, NEARI would agree.
If that happened, of course, then the unions and school district/committee could enter into the sort of stipulated Court Order I suspected in my very first reaction to the lawsuit. Yet they can’t do that because Solas/Hartman, not the unions, are the real parties in interest against the school district/committee. The unions have no standing in the APRA process.
But wait, there’s more. In the Reply Memorandum, the unions suggest that the school district/committee do not oppose the TRO so the court should just grant it. Funny that! The “smell” of collusion is wafting through these proceedings.
Here are applicable excerpts (emphasis and italics in original)
Because the School Department has not filed any objection to the Union’s Motion, and because none of the arguments presented by the Requestors warrant denying such relief at this preliminary stage, the Union respectfully requests that the instant Motion be granted….With the limited scope 0f the Union’s Motion in mind, the fact of the matter is that the relief sought by the Union is solely against the School Department. The School Department is in possession 0f the records at issue, and only the School Department has the authority to either release or t0 not release records. Accordingly, it is critical to note that the School Department has not filed any objection t0 the Union’s Motion which is directed at preventing the School Department from releasing certain categories 0f records. Given the Union’s Motion is directed at the School Department, and not the Requestors, then the Motion must be granted.***[fn. 5 To reiterate, the Union has filed no claim for legal or injunctive relief against the Requestors.]***Accordingly, because the School Department has not objected t0 the entry 0f temporary injunction relief, the Motion should be granted, and the matter should be set down for hearing on the preliminary injunction or depending on the timing 0f release of records, should proceed to the merits of the declaratory judgment action 0n the records that remain at issue.
But again, Solas/Hartman are the real parties in interest. They have a statutory right to pursue the APRA process. Saying a third party without standing (the unions) and the public entity (the school district/committee) can agree to deprive Solas/Hartman of their statutory APRA rights has no basis in the statute or the law. And the RI Supreme Court has ruled multiple times that such third parties have no right to interfere, collusive or not.
The union Reply Memorandum also ignores the anti-SLAPP statute. The unions stepped in it by bringing a lawsuit that clearly falls under the anti-SLAPP statute. It can’t wash off the mess by reaching a collusive agreement with the school district/committee to deprive Solas/Hartman of their statutory and constitutional rights. That’s what the anti-SLAPP statute is meant to prevent. Indeed, if there is evidence of active collusion, of some sort of communications regarding a desired collusive outcome, that might be relevant to the anti-SLAPP punitive damage remedy.
Accordingly, for the Court to grant collusive relief over the objection of Solas/Hartman not only would run counter to RI Supreme Court precedent, it would run contrary to the anti-SLAPP statute.
The hearing currently is scheduled for Monday morning. In light of approaching Hurricane Henri, I wonder if the hearing will be postponed. If so, I’ll post an update here. Otherwise, assuming my house hasn’t washed away, I’ll cover the online oral argument Monday morning.
CLICK HERE FOR FULL VERSION OF THIS STORY