Saturday, December 11, 2010

No Trespass Orders issued against members of the public
another inadequate policy from the Seattle School District

Dear Mr. Cerqui and Mr. Treat,

There appears to be a problem with Seattle Schools Board Policy F44.01. This policy - which concerns, in part, No Trespass Orders issued against members of the public - does NOT inform the public of their right to appeal a Notice of Trespass to the King County Superior Court. This appears to violate the Division 1 Court of Appeals ruling in Green vs. State of Washington (Sept. 27,2010; attached).

From page 14 of the Green Ruling:

"The bare right to a judicial appeal, without being informed of that right, was insufficient to protect Green from arbitrary action by the school district."

In the email that is copied below, Joy Stevens addresses this problem with F44.01 by asserting that persons who avail themselves of the appeal process described in F44.01 will be told, in the District's response to their appeal, of their right, per RCW 28A.645.010, to a judicial appeal.

Notwithstanding Joy Stevens' assurance, it appears to me that Board Policy F44.01 does not provide sufficient assurance that every person who is issued a No Trespass order will be told in a timely way of their bare right to a judicial appeal.

F44.01 does not inform people of their bare right to judicial appeal. F44.01 makes no reference to the law that creates this right.

* Under current policy, as elaborated by Joy Stevens, people served Notices of Trespass will NOT be told of their right to judicial appeal unless both of these happen: The person decides to appeal. The person exhausts the appeal process, and is not happy with the outcome. This creates a situation where at best only a SUBSET of individuals served Notices of Trespass will be told, eventually, of their right to judicial appeal.

* Joy Stevens' assurance notwithstanding, there exists considerable risk that even persons who do avail themselves of the F44.01 appeal process will never learn of their right to judicial appeal. There are no structures in place to assure that District officials who respond to the person's appeal will remember to inform the person of this right.

* Furthermore, the timing of when a person receives notice of their bare right to judicial appeal may influence whether that person decides to avail themselves of the F44.01 appeal process in the first place. The District's failure to inform served people of this right contemporaneous to time of service very probably increases the probability that the served person will NOT avail themselves of the appeal process.

* Finally, in my view, the Green ruling makes clear that "at minimum" a school district must tell the excluded person of their right to judicial appeal to superior court. If the District fails to tell the person of this right in a timely way, then the Green Ruling makes clear that the thirty day limitation on filing an appeal is not binding on the served person. By failing to mention the judicial appeal right in the appeal section of F44.01, it seems to me that the Seattle Public School Board of Directors is not meeting this "minimum" due process requirement.

* In so far as case law is "law," it seems that F44.01 is legally invalid, due to the fact that both of these are true: 1. Board policy may not violate law (RCW 28A.320.015). 2. this policy violates the Green Ruling. It would seem to be a solemn responsibility of lawyers in the employ of the District, and serving at the pleasure of the board, to inform the Board when such situation exists.

The District can eliminate all risk of a person not learning of this right if the Board would amend policy F44.01 to provide the following:

1.The standard Notice of trespass form in use by the District must refer a person to the District website pages where they can learn of the appeal process. (It would be even better if the appeal process were attached to the Notice of Trespass.)
2. Each and every Notice of Trespass issued by any school official must be submitted in writing, using the most current District-adopted Notice of Trespass Form.
3. F44.01 states very clearly that the person has the right to appeal to the Superior Court of King County.

It seems that it is clearly in the District's interest to rectify this problem with F44.01.

* The Green Ruling makes clear that the district has violated and excluded a person's due process rights if they do not inform that person of their "bare right to a judicial appeal." The Green Ruling makes clear that failure of a school district to fully address a person's due process rights in a timely way renders a Notice of Trespass unlawful, and therefore subject to judicial appeal, for all time.

* It is in the District's interest that when Notices of Trespass are issued for lawful reasons, that these Notice not be rendered unlawful, due to failure of the District to fully, timely, correctly address the served person's procedural due process rights.

* It is in the District's interest to avoid violating the civil rights of members of the public, through allowing principals to issue, and then enforcing, de fact unwritten Notices of Trespass.

It is clearly in the public's interest that the district fully, timely, correctly address procedural due process rights of individuals who are issued Notices of Trespass for lawful reasons.

This email does not address certain other problems with F44.01:

* Under current policy there is considerable risk that issued Notices of Trespass are unlawful for reason that either

o the person did not in fact engage in any adequately documented behavior that is deemed by RCW 28A.635.020 to be unlawful.

o the person was a parent of an enrolled student, and was lawfully exercising the right provided by RCW 28A.605.020

* Under current policy, there is considerable risk of a person having their name posted publicly on the basis of a factually or legally unlawful Notice of Trespass.

* District does not provide literature to notified persons of the valid (statutory) reasons for a school official to order a person to leave school grounds, and to issue Notices of Trespass.

These additional problems will be addressed in a School Board Action Report that will be submitted by Seattle Shadow School Board at a future date.

Please indicate if you will be making a recommendation to the board that they amend F44.01 according to the recommendation in this communication.

Thank you,

Joan Sias,

authorized to speak for, and to serve as
Seattle Shadow School Board (S3B) contact on this matter.

Next Letter:

Mr. Noel Treat, General Counsel, Seattle Public Schools
Mr. John Cerqui, Assistant General Counsel, Seattle Public Schools

Dear Mr. Treat and Mr. Cerqui,

An article posted on the Seattle Times website last night at 10:12 pm, authored by Lauren Williams, underscores the email sent to you earlier yesterday evening. The Williams article reported on a proposed change in Seattle Police's trespass policy. The email was about Seattle Public School's trespass policy (F44.01).

In this article, William's reports that under a proposed revision to its trespass policy, Seattle Police will no longer issue what in effect are restraining orders for public access to private commercial property. Only judges can issue restraining orders. The proposed policy will be implemented in a pilot program beginning Jan 1, 2011.

Khandelwal [*] said the pilot program will call for officers to warn offenders orally or in writing before further action....The key difference from the current program would be that those who had violated the rules in the past would not be banned from the property in the future, as long as they abide by the code of conduct. That means even if a person were loitering in a convenience-store parking lot one night, the person still could go to the store during the day as a legitimate customer, police said.

We urge you, as District lawyers, to review policy F44.01 in light of the following, and to recommend to the Board such changes as will bring this policy into alignment with recent judicial decisions:

* District Court 1 Ruling in Green v. State of Washington (attached)
* Court settlement referred to in the Lauren Williams' Seattle Times article
* Proposed revised Seattle Police trespass policy

Members of the public have requested copies of all written and unwritten Notices of Trespass issued by SPS in the past five years. The SPS Public Information officer has indicated that she was able to locate about sixty four notices.

We urge you, as District lawyers, to review the legality of all written and unwritten exclusions as are currently in force, dismiss bans that are unlawful, and issue letters of apology to unlawfully banned persons.

Thank you,

Joan Sias,
authorized to speak, in this matter, for Seattle Shadow School Board

No comments: