Monday, October 25, 1999

You had to be there: Mathur & Sampson, in court, losing badly (Chunk)


It’s official: Sampson violated an instructor’s Constitutional rights!
 
By Chunk Wheeler 
[Dissent 34, 10/25/99] 

Oct. 25, 1999: Wendy and I left for Federal court at about 8:00 a.m., probably a bit late. We made good time and, by 9:15, we were parked across the street from the Edward R. Roybal Building in downtown LA. 
     When we emerged from the elevator onto the 7th floor—the location of Judge Gary Allen Feess’ courtroom—we were waylaid by my attorney, the excellent Carol Sobel, who said simply, “Roy, looks like you won everything,” as she handed me a copy of the tentative ruling. 
     At first, I seemed incapable of reading it, but I soon understood that it was a reaffirmation of the highly favorable opinion set forth in Judge Manella’s earlier preliminary injunction—but it went beyond that. It said that two district policies—those cited in the Chancellor’s ruthless and stupid disciplinary action against me—were “unconstitutional on their face.” Whoa! 
     On the other hand, it was only the tentative ruling; we still had to present arguments and answer questions before the judge. Things could change. Here’s what the document said:
PROCEEDINGS: (In Chambers) Tentative Ruling re: Motion for Summary Judgment (Memorandum Opinion to Follow After Hearing) 
Plaintiff Roy Bauer moves for summary judgment on all claims against defendant Cedric Sampson arising out of attempts to discipline him...in December 1998 for statements made and satirical illustrations appearing in a publication disseminated within the South Orange County Community College District (“SOCCCD”) community. [I'VE DELETED MOST OF THE TENTATIVE. FOR THE WHOLE THING, GO TO THE END OF THIS BLOG.] 
No reasonable person could have concluded that the written words of Bauer constituted a serious expression of an intent to harm or assault. Id. Furthermore, applying the tests regarding the speech of public employees set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) and Brewster v. Board of Education, 149 F.3d 971, 980-981 (9th Cir. 1998) Bauer’s free speech rights outweigh the interest of Sampson and the college in preventing speech of the type Bauer has engaged in. 
Bauer was speaking out on matters [of] public interest, and his speech was a substantial (perhaps the only) motivating factor in the proposed discipline. Defendant has shown no legitimate interest that outweighs Bauer’s First Amendment rights. Finally, although the issues were not reached in the preliminary injunction hearing, the Court has reviewed the policies in question for vagueness and overbreadth and finds both defects present in the policies in question. Accordingly, the Court concludes that the policies are unconstitutional [on] their face on both grounds.
The saga continues: As we started to move down the hallway toward court, we espied Mr. Raghu P. Mathur, who had been lurking unpleasantly. He scurried to a restroom. 
     Once inside the courtroom, Carol, Wendy, and I sat together on the right. Eventually, Cedric, Raghu, and Dave Larsen (the district’s long-suffering attorney) sat together near the middle. They were as quiet as corpses, sporting lugubrious expressions. 
     Soon, Feess showed up, and he dealt with the first case pretty quickly. I didn’t pay much attention, but the judge got pissed ‘cuz the guy had showed up without a lawyer. “Don’t do that,” he said, more or less. 
     To our surprise, we were up next, and so Carol and Dave shuffled up to that scary middle area of the courtroom where the judge gets to yell at you. 
     Feess layed out his tentative ruling. Essentially, said he, he agreed with Judge Nora Manella’s opinion of the preliminary injunction, according to which the six offending elements of my newsletter (two of which were authored by associates) were “protected” speech. But he had gone beyond her ruling to declare both the district’s Discrimination and Workplace Violence policies to be unconstitutional. 
     During the morning, however, he had reviewed the documents and judged that, perhaps, the Discrimination policy was not really unconstitutional on its face. True, he said, it was used for an “improper purpose,” namely, to “stifle dissent.” But it wasn’t unconstitutional per se. 
     The other policy was another matter; its language was terribly vague and ambiguous, etc.
     Larsen started yammering about the “Pickering” case, whatever that is, and about “specific factual issues.” “I don’t see it,” said Feess. The factual record, he added, is not in dispute. He noted that the district had tried to add all sorts of supposedly damning information about me “after the fact,” but that stuff didn’t impress him, and it wasn’t relevant anyway. The issue, said Feess, is what I had written (or illustrated or edited) in the newsletters, the locus of complaint in the disciplinary letter of December, 1998. And that stuff was “plainly protected under the 1st Amendment.” 
     He added that it was “hard to understand what administration was thinking” when they took this action against me. 
     I looked at Cedric. He looked like a ghoul. Larsen sputtered forth some hooey about the “debilitating” impact I have had on the “organization.” 
     Back in ’98, Raghu had (illegally) inserted an admonition in my teaching evaluation—he had urged me to help promote a “positive” environment, or some such rubbish. (At the time, three of Raghu’s critics had received the same admonition in their teaching evaluations.) I had violated that direction by persisting in nattering negative nabobery. 
     Gotta look at the impact of speech, said Larsen. The impact’s the thing. And then there’s “Sherry White-Miller’s” [sic] fears. What about that? 
     Judge Feess broke in: yeah, she’s worried about Bauer’s “crane,” from which he swings that dangerous “granite slab”—Is that it?, he asked. (Laughter.) 
     “She feels physically threatened,” offered Larsen. 
     Feess then explained that it just wouldn’t do to follow a standard based on what produces fear in the “most sensitive” individuals. 
     “Most sensitive” seemed to be a euphemism for “most addled.” 
     Are we supposed to “muzzle” speakers just because of the goofy worries of goofy people? Don’t think so. 
     Larsen was getting desperate. He suggested that I had engaged in actual face-to-face threats
     He was referring, of course, to my brief 1998 meeting with Glenn “Pinhead” Roquemore, in which (according to Roquemore) I had said something to the effect that “Mathur’s going down, and you’re going down with him.” The tender Glenn took that remark to be a threat of violence against him
     Feess, referring specifically to that testimony, virtually guffawed. 
     Larsen then insisted that I had come close to physical violence. What about the “fucking asshole” episode?, he asked. 
     According to Ken “I’ve got a Ph.D.” Woodward, I once called him a “fucking asshole.” I’m not sure I recall this episode, but if you know Ken, you know what a jerk he can be. He’s a needler of an infantile variety. Once, during a union Rep Council meeting, as I sat silently alone (the only “reform” unionist in the room, as I recall), he started up with one of his needling jobs: “Look, over there. It’s that Roy Bauer. I’ll talk about my Ph.D. He hates when I talk about my Ph.D.” 
     I kid you not. Is it possible that, accosted by Woodward and treated to one of his infantile needlings, I walked away, muttering the phrase “fucking asshole”? Sure. 
     Judge Feess revealed a comedic bent. He noted that, if calling someone a “fucking asshole” were an actionable threat, the courts would be overflowing with offenders. Hell, he’d heard that phrase used in the courtroom sometimes—even once by someone wearing a “black robe.” 
     Everyone guffawed. 
     Yeah, said Larsen, but what about all the others who complain about Bauer! It’s not just Sherry Miller-White! Feess ridiculed the notion that a college professor should be told to restrict himself to “nice” remarks about others. That I had been directed by Mathur to, as Feess put it, “make things nicer” seemed to him to be a possible violation of the 1st Amendment all by itself.
     “It’s a college campus.” If you can’t “speak your mind” there, then where?, he asked. 
     Feess noted that, according to Larsen’s clients, I was responsible for the district’s problems, but the record did not support that charge. 
     Some people, he said, might take offense to some elements of the newsletters, but that is no reason to discipline me. Especially not at a college
     Larsen again insisted that I had been “disruptive.” My words had caused fear, what with talk of granite slabs and all the rest. The fundamental issue was whether it was “reasonable” to view my conduct as threatening. 
     If, said Feess, Larsen was referring to the words and graphics of the newsletters, the notion that their content was “threatening” was “beyond reason”—i.e., no reasonable person would view this stuff as threatening. (Mathur and Sampson looked especially cadaverous at that point.) 
     Clearly, said Feess, Larsen and his clients were “unhappy” with my writings. So freakin’ what?   
     Carol and the Judge then debated various issues. Sampson’s crew were arguing that I was solely responsible for the troubles that led to accrediting difficulties for the two colleges. That’s absurd, said Carol. They discussed the notion of “disruption” on a college campus. A sit-in, said Feess, could be said to disrupt operations, but not speech that makes some people uncomfortable. 
     Carol argued that the district’s Discrimination policy was unconstitutional because it provided no guidelines regarding the difference between protected and unprotected “discriminatory” speech, despite an “abundance” of court cases that help to define that line. Further, how is an employee supposed to know when he has violated the policy? Is he or she supposed to look this stuff up in a “secondary source”? 
     Feess didn’t seem to agree, though he acknowledged that the policy had been “stretched and flip-flopped” in my case in order to stifle dissent. 
     Larsen alleged that, because of my “speech,” people weren’t participating in meetings, to which Feess responded: if people don’t want to participate because they’ll be criticized, then “so be it.” He then carped about those who prefer to operate “behind closed doors.” Under our system, he said, you can’t avoid the consequences of your actions and choices. Some people don’t want to be criticized for what they do and say, but, said Feess, “that’s just life under the 1st Amendment.” 
    He explained that the Brown Act exists exactly because of this tendency among some powerful people to try to keep their actions hidden, away from criticism. 
     Eventually, Larsen referred to my (humorous) use of the phrase “going postal.” Are you saying that no one should ever use that phrase?, asked Feess. Larsen started to yammer. Feess cut him short: “I’ve read it,” he said, referring to the offending paragraph in which the phrase appeared. There’s no threat there. Clearly, he said, this is a case of stretching a policy to silence a legitimate critic. 
     Feess reiterated that he rejected the district’s Workplace Violence policy, which inspired Sampson to refer to my “violent behavior overtones” in the December letter. 
     “I have no idea what that means,” he said. The policy, he added, is an open invitation to take a person’s words out of context as a pretext for disciplining him. He implied that that had occurred in my case. 
     Feess explained that his tentative judgment, as he had just explained it, was now final, except that he would go off to consider whether the district’s Discrimination policy, too, should be judged unconstitutional on its face. He would be issuing a written opinion. 
     And that was about it. 
     Cedric had been spanked, and, by extension, so had Raghu. 
     Soon, we were out in the hallway, and, as luck would have it, all six of us ended up alone in an elevator, headin’ down. I smiled pleasantly. Dave turned to Carol and said, “Well, Carol, you did very well with the judge, as usual.” Without missing a beat, Carol responded by saying, “Yes, you did well, too, Dave.” 
     Then she got that impish look. Gesturing toward Cedric and Raghu, she added: “—Given what you had to work with.” 
     Wendy and I smiled, and maybe even snorted. Raghu glared. I’m not sure what Cedric did, ‘cuz I didn’t look at ‘im, but, later that evening, at the board meeting, he looked like a bloodless Halloween corpse, the poor fellow. —CW 

HERE'S THE ENTIRE "TENTATIVE":
PROCEEDINGS: (In Chambers) Tentative Ruling re: Motion for Summary Judgment (Memorandum Opinion to Follow After Hearing) 
Plaintiff Roy Bauer moves for summary judgment on all claims against defendant Cedric Sampson arising out of attempts to discipline him, pursuant to policies 4000.3 and 4000.5, in December 1998 for statements made and satirical illustrations appearing in a publication disseminated within the South Orange County Community College District (“SOCCCD”) community. At the outset the Court notes several procedural issues: 
1. The motion is made as to all claims, but Bauer focuses his argument almost entirely on the First Amendment issue. No particular effort has been directed to establishing the elements of an equal protection claim or a retaliation claim under California law. 
2. Bauer objects to certain portions of the evidence submitted on behalf of Sampson but without addressing the additional statements of fact that are alleged to be both material and without substantial controversy. 
3. Although this case properly involves discipline pertaining to those particular statements, defendant [Sampson, et al.] has offered additional evidence of Bauer’s allegedly violent, disruptive and uncivil conduct to defeat this motion. While the Court concludes that such evidence, which is not included in the written explanation for the discipline, is not material to the issues before this Court, even if considered it does not change the result. 
To summarize, the motion as to Counts One and Five is granted essentially on the same basis underlying the issuance of a preliminary injunction. The speech in question is core protected speech and there is no applicable First Amendment limitation that would permit the discipline to be imposed on Bauer. 
The Court finds that, as applied to Bauer, the written policies in question violate Bauer’s first amendment rights. The speech in issue did not constitute “threats” within the meaning of first amendment jurisprudence in that, on its face, it was not so [“]unequivocal, unconditional, immediate and specific . . . as to convey a gravity or purpose and imminent prospect of execution.” Lovell v. Poway, 90 F. 3d 367, 372 (9th Cir. 1996). 
No reasonable person could have concluded that the written words of Bauer constituted a serious expression of an intent to harm or assault. Id. Furthermore, applying the tests regarding the speech of public employees set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) and Brewster v. Board of Education, 149 F.3d 971, 980-981 (9th Cir. 1998) Bauer’s free speech rights outweigh the interest of Sampson and the college in preventing speech of the type Bauer has engaged in. 
Bauer was speaking out on matters [of] public interest, and his speech was a substantial (perhaps the only) motivating factor in the proposed discipline. Defendant has shown no legitimate interest that outweighs Bauer’s First Amendment rights. Finally, although the issues were not reached in the preliminary injunction hearing, the Court has reviewed the policies in question for vagueness and overbreadth and finds both defects present in the policies in question. Accordingly, the Court concludes that the policies are unconstitutional [on] their face on both grounds.

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