February 2009

Although our country is presently in the midst of a financial crisis, it has been experiencing a civil liberties crisis far longer. And, as you can see from the sampling of cases below, The Rutherford Institute is in the thick of the battle.

We are currently barraged by pleas for help. And even though our caseload is growing, we are not turning anyone away. That was the reason I founded The Rutherford Institute in 1982--to make sure that those whose freedoms are threatened are able to defend their beliefs in a court of law.

However, we could not protect the rights we all rely on without the help of our affiliate attorneys across the United States who believe that our freedoms must be defended, whatever the cost. And I believe that because of your willingness to donate your time and expertise, we are making great strides in protecting the freedoms that were secured by the sacrifice and suffering of those who went before us.—John Whitehead, President

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2008 Annual Report

http://www.rutherford.org/pdf/2008_Annual_Report.pdf

TRI Action

• On February 11, 2009, The Rutherford Institute filed a lawsuit in an Oklahoma federal district court on behalf of a prison ministry which has met resistance from the Oklahoma Department of Corrections. Wingspread Prison Ministries, a Christian outreach ministry founded in 1986, assists prisoners throughout the United States with their efforts at rehabilitation through the acceptance and practice of Christianity.  Wingspread's ministry involves personal communications with prisoners, providing them with Bibles and other materials about Christianity, and the provision of small financial gifts to indigent prisoners. In 2008, Wingspread was informed by officials in the Oklahoma Department of Corrections that it could no longer send Bibles to prisoners and that any and all books could only be sent directly from publishers. It also was informed that restrictions were being placed upon its correspondence with prisoners and its provision of small denomination money orders to prisoners. In August 2008, The Rutherford Institute contacted department officials on behalf of Wingspread to secure an easing of the restrictions. But when the restrictions remained in place, the legal action was filed. The complaint, filed in Evangelists for Christ v. Jones, Case No. 09-059-JHP in the Eastern District of Oklahoma, alleges that the restrictions imposed upon Wingspread violate its rights under the First and Fourteenth Amendments, as well as under the Oklahoma Religious Freedom Act. 

• Rutherford Institute attorneys successfully defeated a motion to dismiss a First Amendment lawsuit filed by the Institute on behalf of members of West Virginia's Constitution Party seeking to defend the Party's right to petition for state ballot access. In The Constitution Party of West Va.  v. Jezioro, No. 2:08-CV-61, District Judge Bailey of the Northern District of West Virginia rejected the argument of officials within the state's Department of Natural Resources that they were immune from a lawsuit brought under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to protect the right of persons to circulate petitions at certain events held at state parks. The court ruled that the Eleventh Amendment did not protect the officials or deprive the court of jurisdiction over the claims because the claims did not seek money damages from the state. It also ruled that the plaintiffs did not have to exhaust any available state remedies before seeking relief in federal court.

• In February 2009, The Rutherford Institute joined with other civil liberties organizations in filing an amicus brief with the U.S. Supreme Court in District Attorney's Office v. Osborne, No. 08-6, a case that will determine the extent to which persons convicted of crimes may obtain relief in federal court in order to prove their actual innocence on the basis of DNA evidence. In 1994, William Osborne was convicted by a jury in Alaska state court of kidnapping and first-degree sexual assault, and the convictions were affirmed on appeal. In 2003, Osborne filed an action under 42 U.S.C. § 1983 alleging that he was deprived of due process when the state denied him access to evidence for DNA testing that was not available at the time of his trial and which could prove his innocence. The federal district court upheld Osborne's claim, and that decision was affirmed by the Court of Appeals for the Ninth Circuit. However, the state's petition for certiorari, arguing that prisoners have no federal right to obtain such evidence or to prove their innocence, was granted by the Supreme Court. In their brief, TRI and other amici reject the contention made by the state that there is no right under the Due Process Clause not to be detained when one is actually innocent. "If the Constitution's protection of liberty means anything," the amicus brief argues, "it must mean that a state presented with conclusive DNA evidence of a person's innocence may not continue to detain that person for a crime he did not commit."

• Rutherford Institute attorneys have filed a petition for certiorari with the U.S. Supreme Court asking the Court to overturn a decision by the U.S. Court of Appeals for the District of Columbia ruling that a class of Navy chaplains and chaplain endorsing agencies could not sue the Navy to challenge alleged preferential treatment given to certain chaplains. In In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008), the court held, with one judge dissenting, that the plaintiffs did not have standing to assert claims that the Navy had engaged in "religious gerrymandering" by appointing as chaplains Catholic clergy despite exceeding statutory age limits and retaining Catholic clergy past the mandatory separation age so that such clergy could qualify for pensions. In the petition filed with the Supreme Court, Institute attorneys argue, inter alia, that the plaintiffs' exposure to the Navy's denominational preference causes an injury that gives the plaintiffs standing to sue.

Recent Decisions

• In Boyd v. Texas, 2008 WL 5129645 (5th Cir. Dec. 8, 2008), the Fifth Circuit Court of Appeals reversed the awarding of attorney's fees in a lawsuit brought by an Islamic woman who had been required by officials of a county courthouse to remove her hijab, which is a traditional Muslim head covering. While the Court of Appeals affirmed part of the opinion of the U.S. District Court for the Southern District of Texas regarding Karwana Boyd's right to not be forced to remove her hijab when entering a courtroom, the court wrote, "Because we hold that the district court erred in concluding that Boyd was a prevailing party under 42 U.S.C. § 1988 (2003), we vacate the district court's judgment insofar as it awarded prevailing party attorney's fees and affirm the remainder of the district court's judgment." 

• The Eighth Circuit has affirmed a district court ruling against a prison inmate who was not allowed to have tarot cards in his cell. In Singson v. Norris, Director, Arkansas Dept. of Corrections, 2009 WL 173229 (8th Cir. Jan. 27, 2009), Mark Singson, a follower of Wiccan, filed a lawsuit alleging that the policy which requires inmates to check out tarot cards from a chaplain and prohibits the keeping of the cards in their cells is a violation of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), in that it inhibited readings of the cards at his time of choosing. The U.S. District Court for the Eastern District of Arkansas ruled in favor of the Arkansas Department of Corrections, and Singson appealed. On January 27, 2009, the Eighth Circuit Court of Appeals affirmed the district court decision, holding that the "policy did not violate [the] Religious Land Use and Institutionalized Persons Act."

• The U.S. Supreme Court recently affirmed a lower court decision against a man who was convicted based upon evidence that had been obtained using a recalled warrant in Herring v. United States, 129 S.Ct. 695 (Jan. 14, 2009). Police officers of Coffee County, Alabama, used a warrant listed in a neighboring county in order to search the premises of Bennie Dean Herring, a previously convicted felon. In the search of his premises, drugs and a gun were found and Herring was arrested. The U.S. District Court for the Middle District of Alabama denied Herring's motion to suppress the evidence, which was then in turn used against him for a conviction. Herring was subsequently convicted, and he appealed. The United States Court of Appeals for the Eleventh Circuit affirmed the district court ruling, and certiorari was granted by the U.S. Supreme Court. In affirming both the district and circuit court rulings, the Supreme Court held, "[Herring]'s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule... In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' In such a case, the criminal should not 'go free because the constable has blundered.'"

• The Eleventh Circuit Court of Appeals has controversially reversed a district court ruling and struck a blow against students' First Amendment rights in Frazier v. Alexandre, 2009 WL 166980 (11th Cir. Jan. 26, 2009). Cameron Frazier, a 17-year-old public school student, refused to stand and recite the Pledge of Allegiance at school each morning, even after a teacher informed him of the Florida statute (§ 1003.44(1)) which requires that he stand and recite the Pledge unless he has parental permission to be excused. Frazier, through his mother, sued in the U.S. District Court for the Southern District of Florida, and the court threw out the section of the statute that was directly related to the Pledge. On state defendant's appeal to the Eleventh Circuit, the court affirmed in part and reversed in part the district court decision, holding that, "Florida statute, to extent that it required students to stand at attention during the pledge of allegiance, violated the First Amendment;" however, "to extent that Florida statute required students to obtain parental permission to be excused from reciting pledge of allegiance, it did not violate First Amendment." The subsequent petition for rehearing en banc was then denied on January 26, 2009.

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About Parakletos

Parakletos is The Rutherford Institute’s bi-monthly affiliate attorney newsletter. Greek for advocate/intercessor, “parakletos” refers to one who comes alongside and encourages us, one who enables us to be brave, one who empowers us to cope with the struggles and battles of life. Every issue of Parakletos includes articles about precedent-setting cases, recent legal victories, and at least one profile on a Rutherford affiliate.

The Fight for Freedom Needs You: Affiliate Attorneys Wanted

Each year, The Rutherford Institute comes to the aid of thousands of individuals who have encountered injustice in their lives. We are able to do so with the help of a dedicated group of attorneys across America who donate their time and expertise to assist us in our efforts to uphold and defend our constitutional freedoms.

The Rutherford Institute is currently seeking seasoned attorneys to take a more active role in assisting with constitutional cases involving violations of religious freedom, human rights and other basic liberties. Affiliate attorney responsibilities in pro bono cases range from assisting with the drafting of briefs on critical issues and handling litigation strategy to providing insightful legal arguments and filing briefs in local courts.

If you or someone you know is interested in assisting with a case in your region, please email us at staff@rutherford.org with your contact information, as well as the names and contact information of any colleagues who might be interested in helping the fight for freedom. We'll send out an informational packet about our Affiliate Attorney Program and have one of our attorneys follow up to match your interests and expertise with our needs in your area.