As someone who spent 22 years as a civil litigator prior to joining Cornell Law School, including 13 in Rhode Island, I understand well that lawsuits frequently do not turn out as the plaintiff intended, sometimes catastrophically so. I’m not making a prediction, but I am sounding a warning, that the lawsuit by two RI affiliates of the National Education Association against South Kingstown mother Nicole Solas may turn out to be a historic mistake, one that exposes the unions to punitive damage claims by Solas under the Rhode Island anti-SLAPP statute, as well as intrusive discovery as to union motivations.The background you probably already know. Solas, a Rhode Island stay-at-home mother, first told her story at Legal Insurrection about her problems getting information about Critical Race and Gender teaching in South Kingstown schools, including the kindergarten to which her daughter was enrolled for fall 2021. (She has since then said she will send her daughter to private school because she fears retaliation against her daughter because of this controversy.)We have tracked the story since it launched at Legal Insurrection and spread nationally:
In a surprise move, last week two Rhode Island branches of the largest teachers union in the country, NEA-Rhode Island and NEA-South Kingstown, filed a lawsuit and motion for an emergency injunction against Solas and the school district and school committee from which she sought records.The lawsuit, including links to the pleadings, is detailed in these two posts:
NEA-RI and NEA-SK seek an injunction against the South Kingstown school district and school committee releasing records Solas has requested under the RI Access to Public Records Act (APRA). The unions claim that some of the records are not subject to APRA, and might expose private emails and other details regarding union member teachers, such as which teachers advance Critical Race Theory, and communications with the union on that topic and other topics.The claim that such records are private is doubtful. Records of teacher communications about CRT and with the union that are on the computer systems of or in the possession of the school district are subject to APRA production unless they fall under a specific statutory exemption. Additionally, South Kingstown has been extremely aggressive in asserting exemptions and redacting documents, and there is no evidentiary basis in the union court filings to suggest that would not be the case here. So factually, the hysterical claim that South Kingstown is going to start handing out personal or personnel records of teachers is without basis.But more important, it does not appear that the unions have “standing” to seek the injunction. We addressed this point in Unions May Have Major Legal Problem In Lawsuit Against RI Mom Nicole Solas Over Public Records Of Critical Race Teaching:
There is a Rhode Island Supreme Court case that is going to have to be addressed, and which seems to sink the unions’ lawsuit. Ilana Cutler, Esq., Legal Insurrection Foundation Investigations Counsel, found the case, and it appears to be good law. And let’s just say I was shocked to find a case seemingly so on point and not addressed in the unions’ papers that it could present a major problem for the lawsuit.The case is a 2004 Rhode Island Supreme Court case, In re New England Gas Co., 842 A.2d 545, 551–52 (R.I. 2004), in which the court found no right of a non-party to the public records process (in the position of the unions here) to seek to prevent disclosure of allegedly non-public information. That case even relied upon prior precident involving a different union’s attempt to intervene.
We provided this excerpt from the New England Gas case (emphasis added):
This case requires us to revisit the Access to Public Records Act (APRA), G.L. 1956 chapter 2 of title 38. On its face, the avowed purpose of the APRA is “to facilitate public access to governmental records which pertain to the policy making functions of public bodies and/or are relevant to the public health, safety, and welfare.” Section 38-2-1. We also have held that the APRA provides a remedy only to those people who are denied access to public records; it does not provide a remedy to prevent public agencies from disclosing records. See Pontbriand v. Sundlun, 699 A.2d 856, 867 (R.I. 1997); Rhode Island Federation of Teachers, AFT, AFL-CIO v. Sundlun, 595 A.2d 799, 803 (R.I. 1991). Discerning no reason to deviate from these principles, and as the General Assembly has not seen fit to provide such a remedy, we reemphasize the strong public policy expressed in the APRA in favor of public disclosure.***We begin our analysis by noting that this Court has “long recognized that the underlying policy of the APRA favors the free flow and disclosure of information to the public.” Providence Journal Co. v. Sundlun, 616 A.2d 1131, 1134 (R.I. 1992) (citingProvidence Journal Co. v. Kane, 577 A.2d 661, 663 (R.I. 1990);Pawtucket Teachers Alliance Local No. 920, AFT, AFL-CIO v. Brady, 556 A.2d 556, 558 (R.I. 1989); Hydron Laboratories, Inc. v. Department of Attorney General, 492 A.2d 135, 137 (R.I. 1985); The Rake v. Gorodetsky, 452 A.2d 1144, 1147 (R.I. 1982)).
We also have made clear that the APRA provides neither a right to prevent the release of private information, Pontbriand, 699 A.2d at 867, nor a remedy to compel nondisclosure, Rhode Island Federation of Teachers, 595 A.2d at 802. We reached this conclusion after a careful analysis of legislative intent and an examination of federal case law decided under the analogous Freedom of Information Act (FOIA). Pontbriand, 699 A.2d at 867. The Supreme Court of the United States has held that the FOIA was designed to enlarge disclosure by public agencies and that “Congress did not design the FOIA exemptions to be mandatory bars to disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979).
Thus, the APRA exemptions, similar to those under the FOIA, allow public agencies to withhold documents, but do not require withholding. See Tripp v. Department of Defense, 193 F. Supp.2d 229, 238 (D.D.C. 2002). Similarly, in Rhode Island Federation of Teachers, 595 A.2d at 802-03, we held that the APRA provides no remedy to compel withholding non-exempt information from the public:
“The similarity between FOIA, as interpreted, and APRA is striking. In both instances the Legislature has cast the public official as the guardian of exempted material. His or her discretion in respect to disclosure cannot be challenged by a private party. As in the case at bar, if a remedy is to be provided, it must be provided by the Legislature and not by the court.
“Our statute, like the Federal FOIA statute, is directed solely toward requiring disclosure by public agencies and does not provide a reverse remedy to prevent disclosure.”
I leave open the possibility that we’re missing something, and the unions have a way around the standing problem. I don’t think so, but perhaps the unions will prove me wrong.
But if I’m right about the standing problem, then the unions have a bigger legal problem than merely a weak lawsuit. The Rhode Island Anti-SLAPP statute (Limits on Strategic Litigation Against Public Participation) appears to apply, opening up various remedies to Solas:
Section 9-33-1 – FindingsThe legislature finds and declares that full participation by persons and organizations and robust discussion of issues of public concern before the legislative, judicial, and administrative bodies and in other public fora are essential to the democratic process, that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances; that such litigation is disfavored and should be resolved quickly with minimum cost to citizens who have participated in matters of public concern.
Solas’ APRA requests pretty clearly are a “petition for the redress of grievances” – the grievance and redress being the request for records – and also were intertwined with Solas’ exercise of her freedom to speak out against Critical Race and Gender being taught in South Kingstown schools. This is supported by Section 9-33-2(e), which describes the broad reach of the statute:
(e) As used in this section, “a party’s exercise of its right of petition or of free speech” shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or any written or oral statement made in connection with an issue of public concern.
We’ve not found a RI case addressing anti-SLAPP in the context of an APRA request, perhaps because no one brings such suits after the RI Supreme Court decision in the New England Gas case. But Solas’ APRA requests and the unions’ lawsuit over it certainly seem within the plain scope of the statutory language.
If the anti-SLAPP statute applies, it triggers a mechanism to quickly end the lawsuit (emphasis added):
Section 9-33-2 – Conditional immunity(a) A party’s exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern shall be conditionally immune from civil claims, counterclaims, or cross-claims. Such immunity will apply as a bar to any civil claim, counterclaim, or cross-claim directed at petition or free speech as defined in subsection (e) of this section, except if the petition or free speech constitutes a sham. The petition or free speech constitutes a sham only if it is not genuinely aimed at procuring favorable government action, result, or outcome, regardless of ultimate motive or purpose. The petition or free speech will be deemed to constitute a sham as defined in the previous sentence only if it is both:
(1) Objectively baseless in the sense that no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome, and(2) Subjectively baseless in the sense that it is actually an attempt to use the governmental process itself for its own direct effects. Use of outcome or result of the governmental process shall not constitute use of the governmental process itself for its own direct effects.
(b) The court shall stay all discovery proceedings in the action upon the filing of a motion asserting the immunity established by this section; provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion.
(c) The immunity established by this section may be asserted by an appropriate motion or by other appropriate means under the applicable rules of civil procedure.
But wait, there’s more. If Solas prevails on an anti-SLAPP motion, the court must award reasonable attorney’s fees. If the lawsuit was “frivolous,” then it exposes the person or entity bringing the lawsuit (the unions here) to compensatory and punitive damage claims. Section 9-33-2 further provides (emphasis added):
(d) If the court grants the motion asserting the immunity established by this section, or if the party claiming lawful exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions in connection with a matter of public concern is, in fact, the eventual prevailing party at trial, the court shall award the prevailing party costs and reasonable attorney’s fees, including those incurred for the motion and any related discovery matters. The court shall award compensatory damages and may award punitive damages upon a showing by the prevailing party that the responding party’s claims, counterclaims, or cross-claims were frivolous or were brought with an intent to harass the party or otherwise inhibit the party’s exercise of its right to petition or free speech under the United States or Rhode Island constitution. Nothing in this section shall affect or preclude the right of the party claiming lawful exercise of his or her right of petition or of free speech under the United States or Rhode Island constitutions to any remedy otherwise authorized by law.
A claim for damages under the statute must be made as part of the motion to dismiss, not in a separate lawsuit.
Now you can see the significance of the “standing” issue. If the unions never had standing to sue, with the law being clearly spelled out in a RI Supreme Court case, then arguably the lawsuit was “frivolous” triggering the damage provisions, including punitive damages. The statute does not mandate punitive damages, but it does provide for judicial discretion to award them.
Whether the bringing of the lawsuit was malicious might depend on what discovery turns up — Solas would be able to bring into evidence and gather more evidence of the union efforts against her, including the circumstances of the NEA-SK meeting in which her image was shown to union members who were warned about her.
The unions’ motivations could be critical to the punitive damages aspect, Hometown Properties, Inc. v. Fleming, No. C.A. WC92-689 (R.I. Super. July 3, 1998):
This Court finds that Fleming’s claim is derived from the standard enunciated in the statute. Thus, a prima facie case for punitive damages is made when Fleming’s evidence indicates that Hometown’s lawsuit against her was frivolous, or was brought with an intent to harass said party, or otherwise inhibit said party’s exercise of her right to petition or free speech.
The standing problem arguably shows frivolousness. The “intent to harass” or “otherwise inhibit” Solas would be a matter for discovery of what the unions did and with whom they communicated in the lead up to the lawsuit. We already know, based on public records obtained by the Legal Insurrection Foundation, that the Rhode Island School Superintendents Association bragged that it was working with its “union friends” on trying to limit APRA due to Solas. Whether NEA-RI and NEA-SK were part of that effort might be relevant.
[Redactions by Legal Insurrection Foundation]
I’m not predicting an outcome here, I’m just pointing out that this might head in a direction the unions never thought possible — they may be subject to extensive court discovery as part of a punitive damage claim under the anti-SLAPP statute, and then a punitive damage award. If all that happens, this lawsuit may turn out to be a historic mistake by the teachers unions.
CLICK HERE FOR FULL VERSION OF THIS STORY
