Ignorance is this – Part 1

I’ve gotten into the habit of telling folks who ask me what’s happening in the Duluth Schools something to this affect, “I’m only a school board member. Nobody tells me anything.” It’s more a bow to my resignation than outrage. I’ll keep using it so if I ever pull it on you tell me you read it here first. That will make me feel better because I like to think I’m helping keep the rest of the community as ignorant as I am.

I’m not alone. Our District and its corps of attorneys are doing their best to keep Art Johnston’s legal team out of every loop they can throw. As far as I can tell Art’s lawyers are more amused by this than outraged. It will probably just keep pushing their charges for legal services up while they watch the District’s attorney’s delay any resolution of our nightmare. I was introduced to them briefly for the first time after Tuesday’s court hearing before excusing myself to search out relief from my morning’s caffeine. When I returned the hallway was empty. Down a side hall I spied the Defense counsel with Chair Seliga-Punyko, Bill Westholm and Bill Hanson and the Insurance guy (probably) who is watching the price tag of our brouhaha skyrocket. They looked pretty somber.

Outside the Federal Courthouse Art’s attorneys were being interviewed by WDIO. When they were finished the elder partner, Mr. Finch (he spelled his name for me apparently for my blog) teased me about being an elected official kept in the dark by our District about this suit which I was elected to have some say in (That’s my Hydrogen bomb). They were in a pretty jovial mood. I took that as a good sign. Their drive back to the Twin Cities will cost Art and maybe Duluth’s taxpayers a thousand bucks but they felt no need to confer with Art. I’m sure they talked legal strategy all the way home no doubt including how to get discovery or data from the school district which so far has sealed itself up like a clam in a starfish’s embrace.

The Trib’s Jana Hollingsworth had a good workmanlike story on the legal arguments in her story the next day. No doubt next Friday Loren Martell will offer his dead on analysis in the Reader Weekly so I’ll just add a little color.

I’ve been in State District Court on numerous occasions as a witness, a plaintiff (twice), a prospective juror and as an audience member. For some reason the Federal Courtroom seemed a bit more austere and forbidding. It was pin drop quiet when I entered the court. Judy and Bill Westholm sat on one side behind their attorneys. Judy’s pal Loren Martell sat not far away. A fellow who Art thought represented the Insurance company sat far back against the wall.

You may recall that I pulled a paragraph out of the blog a week ago following the federal hearing which was held to dissuade the two parties from continuing. The District’s lawyers took exception to my blogging afterward maintaining I divulged the secret talks between them and Art’s attorneys. I thought I’d be putting it back in again after today’s hearing but you’ll have to wait another week to see just how harmless the paragraph is. That’s because today’s Judge ordered both sides to go back into settlement talks with the same judicial mediator.

Ka Ching! Ka Ching! Ka Ching! Listen to our costs go up.

Ah, but unlike the mediation this week’s hearing was open to the public and on the public record. Over the next hour I took 19 pages of notes on a legal sized legal pad. I’m sure Jana Hollingsworth who sat behind Art and me probably took much better notes.

Two minutes after the hour judge Michael J. Davis entered the courtroom and everyone rose. The attorneys on both sides introduced themselves and their clients.

Art’s attorney, Steven Aagergaard was up first and seemed a bit nervous as he began his arguments. He asked the judge to enjoin the District from proceeding with the hearing necessary to remove Art. It’s just a formality prior to removal should that be the board majority’s wish even its against the judge’s recommendation. Ha, Ha, Ha. Not much doubt about that. Judy doesn’t even want an election this year just in case Art tried to get reelected.

Attorney Aagergaard argued that the whole case against Art was meant to shut him up and deprive him of his free speech rights. The judge, as Jana rightly notes, was of two minds. On the one hand he noted that gadflies made America what it is but then added that not all behavior could hide behind the First Amendment.

The tricky thing is that the Federal Courts will make no judgments on what Art did. That is the province of the State Courts. When Judge Michaels suggested, as he was to do several more times through the hour, that this was a case for the state and his old colleague State District Court Judge Greenburg Art’s attorney was quick to pull out an email that one of the District’s lawyers had sent him the previous day.

The email explained that the District objected to giving Art’s counsel the unredacted evidence that Mary Rice presented to the Board last October without which Art’s lawyers cannot hope to defend Art during next Monday’s scheduled hearing. Art’s attorney’s requested the data (which I have read and fumed over) in January. The District’s lawyers let three months go by without replying to the request and then eight days before the hearing informed Art’s lawyers that they would not provide any evidence to them. As usual out District claimed this was “private data.”

This appeared to be news to the Insurance Company’s attorneys in the courtroom. That’s because the Rupp Firm that I’ve been so complimentary of didn’t bother to keep the insurance company’s attorneys (the Ratwik firm) appraised of this small detail.

Nonetheless the District doggedly argued that only one-forth of their case against Art had anything to do with free expression and our code of ethics Point 4 that encourages free expression. They told Judge Davis that of eight complaints against Art only two were covered by Point 4 which they freely conceded protected Art’s free speech.

To this claim Judge Davis asked them to go down the list of eight or so complaints and tell him if the behavior described wasn’t a form of speech. “Yes,” “yes,” “yes,” they conceded point after point which pretty well gutted their argument that three fourths of the complaints against Art had nothing to do with his first amendment rights.

Once again Judge Davis said this all seemed like a case in which both parties ought to be able to work something out. Art has been describing such an agreement as an “apology and a handshake” for almost a year now. The Attorneys for the Insurance company were not at all agreeable with this. I wonder how much the Insurance Company is prepared to lose?

They also argued that since Art hadn’t been kicked off the Board yet that he hadn’t really suffered any harm notwithstanding his year in the public crosshairs. The Judge seemed to pay scant attention to this and again recommended that the state hearing be delayed although he acknowledged he had no authority over his old colleague Judge Greenburg and the courts of the state of Minnesota. Then Judge Davis sundered the state’s May 11th hearing by scheduling a second Federal mediation session in its stead.

The Attorneys for the Insurance Company whimpered that their clients had already waited five months to hold the hearing and really needed some kind of end date. They didn’t acknowledge that the school district’s lawyers themselves had had set the May 11th date and not Art’s attorneys. There’s no telling when the state hearing will take place. It seemed a bad day for the Insurance Company.

Oh, I should note one more detail. At the close of the meeting the Insurance company’s attorneys said the school board majority had made a “generous” offer to Art at the mediation session to end the legal fight. I found this claim laughable. I’ve known what Art wants for a year now. He wants his ballooning legal expenses paid for. Before this hearing they were about what we paid Attorney Mary Rice to assassinate his character. For this he’d gladly offer an apology. My guess is that the school board majority isn’t willing to have anything less than Art’s complete removal from the board no matter how much it costs our insurer, but that is just my speculation. No one ever tells me anything.

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