Summer 2009

Carol, my beloved wife and constant companion, passed away suddenly and unexpectedly on June 3. Carol was an incredible woman who acted as the heart and soul of The Rutherford Institute.

She was my partner in every way. This was especially so when it came to The Rutherford Institute. When I first thought to start The Rutherford Institute, believing that God was calling me to stand in defense of people whose rights were being violated, it was Carol who prayed with me about it. And when no one else would give me the money to get started, it was Carol who helped scrape up enough to get things going and sacrificed along the way to keep it going. From there, side-by-side, Carol and I labored to found The Rutherford Institute.

Carol's death is a great loss, not only for me and her family, but all who knew her. I hope you will join me in remembering the life of this beloved woman.

Thank you for your prayers and generous support.

—John Whitehead, President

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TRI Action

• A West Virginia federal court granted a summary judgment motion filed by The Rutherford Institute on behalf of members of the Constitution Party of West Virginia who were prevented from engaging in petitioning activities at a state park.  In The Constitution Party of West Va.  v. Jezioro, No. 2:08-CV-61, Institute attorneys filed an action challenging restrictions imposed upon Constitution Party members' ability to circulate petitions seeking state ballot access for party candidates at a carnival-like event held at Stonewall Jackson State Park, saying they violated the right to engage in peaceful political activities.  In an order entered June 3, 2009, District Court Judge John Preston Bailey held that the rule of the state Department of Natural Resources, which was the basis of the restrictions, was unconstitutional on its face because it required prior approval before a person could engage in political speech within a traditional public forum.  Moreover, the court pointed out that the rule did not provide any standards to officials for granting permission to petition, and "[a]s such, the unbridled discretion granted to the Director of the DNR on the face of the regulation is an unconstitutional prior restraint on First Amendment rights."  The court enjoined enforcement of the rule to the extent it forbid "solicitation" within DNR-supervised parks.  An appeal of the ruling to the Court of Appeals for the Fourth Circuit has been filed by the defendants.

• A petition for a writ of certiorari was filed on behalf of the Nevada high school valedictorian whose microphone was turned off in the middle of her commencement address when she spoke about the importance of religion in her life.  In McComb v. Crehan, attorneys for The Rutherford Institute sued officials of the Clark County (Nevada) school district alleging that the defendants violated the First Amendment rights of Brittany McComb.  The District Court denied the defendants' motion to dismiss. However, in an interlocutory appeal, the Court of Appeals for the Ninth Circuit reversed that ruling, finding in a summary order that Brittany's speech constituted "proselytizing" and was not protected by the First Amendment.  In the petition filed with the Supreme Court on June18, 2009, Institute attorneys asked the Court to clarify and establish that student-initiated and composed speeches at graduation do not violate the Establishment Clause merely because they include a religious message.  The petition also argues that the school itself violated the Establishment Clause by allowing certain non-sectarian religious speech at the commencement but censoring Brittany's religious speech. 

• Institute attorneys were successful in obtaining a favorable settlement on behalf of a prison ministry which had been prevented from sending Bibles, religious texts, and small monetary donations to prisoners held by the Oklahoma Department of Corrections.  In February 2009, The Rutherford Institute filed a lawsuit on behalf of Evangelists for Christ, d/b/a Wingspread Prison Ministries, asserting that rules of the Oklahoma Department of Corrections that allowed prisoners to receive books and publications only from publishers or "legitimate bookstores" and restricted the ministries ability to send money orders to prisoners for small comfort items was an unnecessary burden upon the ministries exercise of its First Amendment rights.  After the state moved to dismiss the action and Institute attorneys filed a resistance, a settlement was agreed upon under which Wingspread will now be allowed to send Bibles and books to prisoners who order them through the prison canteen and will be allowed to send money orders of up to $20 to prisoners served by the ministry.

• Rutherford Institute filed an amicus brief with a New Jersey state court challenging the constitutionality of New Jersey's "hate crime" legislation.  Institute attorneys argued that New Jersey's "Bias Intimidation" statute, which provides that it is a separate offense if the victim of an underlying crime believes that he or she was selected because of his or her race, color, religion, gender or sexual orientation, is invalid because its criminal liability is made to depend upon the subjective beliefs of the victim.  This aspect of the Bias Intimidation statute violates due process because an offender will not be on notice that his conduct violates the statute because guilt depends upon the secret beliefs and feeling of the victim.  Moreover, the Institute's brief argued that the provision is inherently irrational because guilt is not based upon the intent or motive of the defendant and so would not have any deterrent effect.  The brief was filed in State v. Pomianek, a criminal action pending in the Superior Court of Camden County, New Jersey.

Recent Decisions

• In a 2 to 1 decision, a panel of the Third Circuit Court of Appeals denied the appeal of Donna Busch who sued a Pennsylvania school district after she was forbidden from reading a passage from the Book of Psalms in her son's school classroom. Busch v. Marple-Newtown Sch. Dist., 567 F.3d 89 (3d Cir. 2009). The Rutherford Institute filed an action on behalf of Busch and her son, Wesley, alleging that school officials violated the First Amendment when it forbid Busch from reading a passage from the Bible, Wesley's favorite book.  Busch had been invited to read from Wesley's favorite book as a part of "Me Week," a school activity meant to focus on individual students.  The Court of Appeals held that the decision of school officials was a reasonable exercise of their discretion in supervising classroom activities.  "Parents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult's reading of religious texts," Chief Judge Anthony J. Scirica wrote.  However, Circuit Judge Hardiman wrote a stinging dissent pointing out that the censorship of Busch constituted unjustified viewpoint discrimination.  Hardiman argued that "Donna Busch was denied the opportunity to read the story her son chose because it expressed a religious viewpoint, rather than a secular one. This plainly constituted viewpoint, not subject matter, discrimination."  Institute attorneys plan to seek a writ of certiorari from the Supreme Court to review this decision.

• In a case in which The Rutherford Institute filed an amicus brief, the Supreme Court held that school officials violated the Fourth Amendment rights of an Arizona middle school student when they subjected her to a strip search.  In Safford Unif. Sch. Dist.  #1 v. Redding, 129 S. Ct. 2633 (2009), the Supreme Court agreed with the ruling of the Ninth Circuit Court of Appeals that school officials violated the rights of a 13-year-old female student when they forced her to disrobe and expose her private areas. The student, Savana Redding, was accused by another student of being the source of prescription strength ibuprofen found on the accuser.  The Court stressed that the strip search was not reasonable in light of the limited threat of the objects sought, the lack of evidence that there were additional pills to be found on the student, and the lack of particularized evidence that pills would be found under her clothing.  "In sum," the Court wrote, "what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable."  The Rutherford Institute's amicus brief was joined by the Cato Institute and Goldwater Institute.

• A Seattle ordinance requiring street performers to obtain permits to perform in the city's main park constituted an unconstitutional prior restraint according to a recent en banc decision of the Ninth Circuit Court of Appeals.  In Berger v. City of Seattle, 2009 WL 1773200 (9th Cir. June 24, 2009), performers challenged an ordinance which required street performers at the Seattle Center to obtain permits before performing; set out specified locations for street performances and established a first-come, first-served rule for using the locations; allowed only passive solicitation of funds by street performers; and prohibited any communication, by street performers or anyone else, within thirty feet of visitors to the Seattle Center.  Rejecting a panel opinion upholding the regulations, the en banc court held that a permit system that applies to single speakers (as opposed to large groups) are presumptively unconstitutional and the city failed to show the regulation was narrowly tailored.  The court also struck down the restriction allowing only passive solicitation by performers, holding that it was a content-based restriction on speech and was not supported by a compelling interest.  And it struck down the restriction on communications with visitors, ruling that the idea that visitors were a "captive audience" who could be protected was wholly inconsistent with precedent establishing public parks as traditional public forums.

• In District Attorney's Office v. Osborne, 129 S. Ct. 2308 (2009), the Supreme Court held that prisoners did not have a right under the federal constitution's Due Process Clause to the release of biological evidence that, through DNA testing, might establish the innocence of the prisoner in a post-conviction proceedings.  While the Court acknowledged the importance of DNA evidence in establishing or disproving a crime suspect's guilt, it held that a person convicted of a crime does not have the same liberty interest as a criminal defendant because the presumption of innocence no longer applies.  The only issue was whether Alaska's post-conviction procedures were so inadequate as to offend fundamental fairness and justice guarantees imposed by the Due Process Clause.  Alaska's procedures were not fundamentally flawed because the state allowed prisoners to seek relief from their convictions on the basis of newly-discovered evidence showing innocence. Moreover, it was not shown that a prisoner would be denied the opportunity to conduct a more accurate DNA test that was not available at the first trial.  The Rutherford Institute filed an amicus brief in support of the prisoner arguing that prisoners have a fundamental right to access evidence that may conclusively prove his or her innocence.

• Washington's highest court has held that a church's use of property to shelter and feed homeless persons constitutes an exercise of religion protected by the state's constitution. City of Woodinville v. Northshore United Church of Christ, 2009 WL 2048334 (Wash. July 16, 2009).  The church challenged a city ordinance placing a moratorium on the issuance of permits that would have allowed the church to continue to allow a homeless persons encampment on church property.  After finding that housing the homeless was part of the church's religious beliefs and practices, it concluded that the city's moratorium imposed a substantial burden on religious liberty that violated the Washington Constitution.  The court held that the city failed to show that the year-long moratorium was a narrow means for achieving a compelling goal.

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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.