Lynn Scott's Motion for a Protective Order filed 4/29/13

7/30/2019 Lynn Scott's Motion for a Protective Order filed 4/29/13

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MEMORANDUM IN SUPPORT OF MOTION FOR

PROTECTIVE ORDER: Jane Doe v. Jackson County

School District No. 9, et al.

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Kim E. Hoyt, OSB No. 914080

[email protected]

Luke W. Reese, OSB No. [email protected] HEMANN ROBERTSON P.C.1011 Commercial Street N.E.P.O. Box 749Salem, Oregon 97308-0749Tel: (503) 581-1501Fax: (503) 581-5891

Of Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MEDFORD DIVISION

JANE DOE, by and through her Guardianad Litem, Suzanne C., JANE DOE 2, byand through her Guardian ad Litem, ErinH.,

Plaintiffs,

vs.

JACKSON COUNTY SCHOOLDISTRICT NO. 9, CYNDA RICKERT,LYNN SCOTT, and JOEL HELLER,

Defendants.

No. 12-2184-CL

DEFENDANTS JACKSON COUNTYSCHOOL DISTRICT NO. 9, CYNDARICKERT and LYNN SCOTTSMEMORANDUM IN SUPPORT OFJACKSON COUNTY SCHOOLDISTRICT NO. 9S MOTION FORPROTECTIVE ORDER

Defendants Jackson County School District No. 9, Cynda Rickert and Lynn Scott

(collectively, the District) submit this memorandum in support of their Motion for Protective

Order.

Case 1:12-cv-02184-CL Document 37 Filed 04/29/13 Page 1 of 14 Page ID#: 155


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BACKGROUND

This case arises out of allegations that plaintiffs were subjected to inappropriate and

unconsented touching by defendant Joel Heller (Mr. Heller) while he was employed by the

District as a substitute teacher. Since reports of these allegations, Mr. Heller has not returned to

the District. The incidents were investigated by the Jackson County District Attorney who

declined to prosecute Mr. Heller. The District and the Oregon Teacher Standards and Practices

Commission also investigated plaintiffs allegations and declined to take action against Mr.

Hellers license.

On December 14, 2011, Thomas Petersen, plaintiffs counsel (Mr. Petersen), served a

tort claims notice on the District. On December 3, 2012, Mr. Petersen filed this lawsuit on

plaintiffs behalf alleging various claims against Mr. Heller, the District and two administrators.

Mr. Petersen chose to file this case under seal in a claimed effort to protect the identities of the

students. Immediately thereafter, local newspapers and television stations reported that the

lawsuit had been filed and provided details of the alleged misconduct with Mr. Petersen

extensively quoted in all.

Over the past month, local media reported again on the lawsuit and this time including

reports of the existence of sworn statements made by former students of Mr. Heller that,

according to statements by Mr. Petersen, show a pattern of abusive behavior on Mr. Hellers

part. Mr. Petersens firms website, blog, and Facebook page also contain some of these news

reports. The sworn statements referenced by Mr. Petersen, and provided by him to the media,

were not a part of any public filing.

Mr. Petersens interviews with various newspapers and television stations, and the

information regarding the lawsuit on the website, blog and Facebook page of Mr. Petersens firm

have resulted, and will continue to result, in extensive newspaper and television news coverage

and dissemination of the statements to the public in general. Many of the statements given by



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Mr. Petersen to the media and that have been posted on Mr. Petersens firms website, blog and

Facebook page pertaining to this case are outside the allegations in his complaint, inflammatory

and designed to cast defendants in a negative light based on unproven allegations. Extrajudicial

statements have been made by Mr. Petersen claiming misconduct that is not supported by his

clients discovery nor is it designed to do anything other than apparently increase media attention

for counsel. The ramifications of Mr. Petersens efforts to feed information regarding yet

unproven allegations to the press are significant. Given Mr. Petersens use of both traditional

and social media, there is a very high likelihood of additional pretrial publicity that would make

it difficult to impanel an impartial jury which would tend to prevent a fair trial and influence

prospective witnesses.

The District, Ms. Rickert and Ms. Scott are committed to the importance of the publics

right to be informed. However, Mr. Petersens conduct in this case, particularly given the fact

that Mr. Heller has not returned to the Districts classrooms since these allegations came to light,

seriously jeopardize these defendants right to receive a fair trial. Because Mr. Petersens

prolific communication presents a substantial likelihood of prejudice to all defendants, the

District requests that the Court enter a protective order prohibiting the attorneys and their staffs

involved in this case from making comments about the case to third parties, including the media,

either directly or on websites or through the use of social media.

ARGUMENT

A. The protective order will not impermissibly limit the First Amendment rights of the

parties and the parties counsel.

The First Amendments guarantee of freedom of speech encompasses a broad spectrum

of form and type of expression. While a major purpose of [the] Amendment [is] to protect the

free discussion of governmental affairs,Mills v. Alabama, 384 US 214, 218, 16 L Ed 2d 484, 86

S Ct 1434 (1966), the amendment also protects an individuals interest in self-expression. See



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Consolidated Edison Co. v. Public Service Commission, 447 US 530, 534 n 2, 65 L Ed 2d 319,

100 S Ct. 2326 (1980). First Amendment rights, however, are not without some constraints. The

government may properly limit speech when compelling government interests outweigh the free

expression interests of the speaker. See, e.g., Landmark Communications, Inc. v. Virginia, 435

US 829, 841, 56 L Ed 2d 1, 98 S Cr 1535 (1978).

Accordingly, the party seeking a protective order limiting speech must establish: (1) the

activity restrained poses either a clear and present danger or a serious and imminent threat to a

protected competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives

are not available. Levine v. United States District Court for the Central District of California,

764 F2d 590, 595 (9th

Cir 1985).

With respect to protective orders involving trial participants, the Ninth Circuits position

is that it is appropriate to impose greater restrictions on the free speech rights of trial participants

than the rights of nonparticipants with the speech of lawyers representing those trial participants

regulated under a less demanding standard than that established for regulation of the press

because lawyers have special access to information through discovery and client

communications [and] their extrajudicial statements [, therefore,] pose a threat to the fairness of a

pending proceeding. Gentile v. State Bar of Nevada, 501 US 1030, 1074, 115 L Ed 2d 888, 111

S Ct 2720 (1990);Levine, 764 F2d at 595, citing Sheppard v. Maxwell, 384 US 333, 360-63, 16

L Ed 2d 600, 86 S Ct 1507 (1966). Moreover, the case for restraints on trial participants is

especially strong with respect to attorneys. Levine, 764 F2d at 595, citing Nebraska Press

Association v. Stuart, 427 US 539, 564, 49 L Ed 2d 683, 96 S Ct 2791 (1976). While the Ninth

Circuit recognizes that attorneys and other trial participants do not lose their constitutional rights

at the courthouse door, the necessity of a protective order must be analyzed in light of the

relationship between the parties and the court system. Id., at 595-596.



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1. There exists a serious and imminent threat to the administration of

justice.

As evidenced by the media coverage to date, there is intense local publicity surrounding

this case that threatens defendants right to a fair trial. See United States v. Brown, 218 F3d 415,

423 (5th

Cir 2000) (Intense publicity surrounding a proceeding poses significant and well-known

dangers to a fair trial.). Specifically, there is a very real danger that pretrial publicity may

prejudice the jury pool, as well as the actual outcome of a trial by, for example, disseminating to

the press inadmissible evidence. See, e.g., Gentile, 501 US at 1030; Sheppard, 384 US at 360.

Attached are examples of the media coverage to date in this case. They are:

Exhibit 1: kdrv.com article dated December 3, 2012. Exhibit 2: mailtribune.com article dated December 4, 2012. Exhibit 3: daily tidings.com article dated December 4, 2012.1 Exhibit 4: KOBI-TV article and video dated March 21, 2013.2 Exhibit 6: opb.org article dated March 27, 2013.3 Exhibit 7: KTVL.com article dated March 28, 2013. Exhibit 8: transcription of KTVL video dated March 30, 2013. See Declaration of

Cynthia Lee, 3.

Exhibit 13: mailtribune.com article dated April 17, 2013. Exhibit 14: KTVL.com article dated April 17, 2013. Exhibit 15: opb.org article dated April 17, 2013.4 Exhibit 16: Eagle Point Newswire dated April 18, 2013.5

1 The article in Exhibit 3 is the same article as in Exhibit 2.2 The transcription of the video in Exhibit 4 is attached as Exhibit 5. See Declaration of Cynthia Lee, 2.3 Exhibit 6 is an article that first appeared in the Medford Mail Tribune.4 Exhibit 15 is the same article as in Exhibit 13.5Exhibit 16 contains links to the December 4, 2012, article in the Ashland Daily Tidings (Exhibit 3); the March 27,

2013, article from the Medford Mail Tribune carried by OPB (Exhibit 6); and the April 13, 2013, from the Medford

Mail Tribune (Exhibit 13).



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Exhibit 17: Upper Rogue Independent article dated December 10, 2012.In addition, Exhibits 6 and 7 are posted on the website of Mr. Petersens firm as of April

16, 2013 (see Exhibits 9, 10), and Exhibits 4 and 8 are posted on the Facebook page and blog of

Mr. Petersens firm as of April 16, 2013 (see Exhibits 9, 10).

Many of the statements made by Mr. Petersen in these articles are inflammatory, highly

prejudicial and used by Mr. Petersen not to inform but to proselytize. The following are

examples:

Petersen is representing two victims but said there are more children Heller abused.Exhibit 1.

The million dollars is a subjective figure, Petersen explained. Its[sp] one that sayswhat is the community standard for something like this. If your child had to go through

this, what money could compensate for that? One million might not be enough.

Exhibit 1.

Kids being so innocent, they dont know what this is about, Petersen said Monday.They knew enough that it frightened them and caused them to tell. Exhibits 2, 3, 16.

Petersen said he also will seek to have Heller banned from working in schools. Itskind of shocking, but its not the first case of a Rogue Valley teacher doing that,

Petersen said. Exhibit 2.

Those complaints [of other victims] were not investigated, were dismissed out of handand the children were made to blame for spreading what they called gossip. Exhibit 5.

[One of the other victims says Mr. Heller] [S]lid his left hand up under a pant leg ontothe skin of her high and began rubbing it back and forth. Exhibit 5.

I think its something that the Teacher Standards and Practices Commission needs toinvestigate. Exhibit 5.



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[Regarding the lawsuit] I dont know how they [the District] are going to get aroundthis. Exhibit 5.

The legal documents [affidavits6 from other victims] will be used as evidence tosupport a federal civil suit that * * * Heller had a pattern of abusive behavior and failed

to protect the students, said Tom Petersen, a Medford attorney. Exhibits 6, 9, 16.

Petersen said the statements from the two new girls and from one of the girls parentssupport that allegation. There are regulations for teachers, Petersen said. Teachers

are taught not to cross those boundaries. Exhibit 6.

What are (the district officials) doing? Petersen said. Who are they supposed to beprotecting, if not the students? Exhibit 6.

Petersen alleged Tuesday that statements from new victims, who are now in high school,detail a pattern of abusive behavior on Hellers part and a pattern of denial on the part of

the district and its administration. Exhibits 6, 9.

Petersen said his clients werent the first victims. In the mid 2000s, Im aware of fouror five, said Petersen. Exhibits 7, 8.

[Petersen] said authorities were never told. The principal shut down the investigationfrom what I understand. Ive got affidavits to that effect and so no police reports were

made. It never made it to the District Attorneys office, said Petersen. Exhibits 7, 8.

* * * Heller was not prosecuted due to [] insufficient evidence. Now all thatmeans is the D.A. made a calculation that the case cannot or might not be won in a court

of law, said Petersen. Exhibit 7.

The victims attorney said if reports of the accusations in the mid-2000s had been made,Heller may have prosecuted. If he or they had known back in 2005, 2006 and seven

6 Mr. Petersen has obtained affidavits from two individuals other than plaintiffs who claim to have been abused by

Mr. Heller. Declaration of Kim E. Hoyt (Hoyt Declaration), 16. These affidavits have not been filed in this case

but have been published by defendants. Mr. Peterson has acknowledged, however, that he provided these

documents to the media. Id.



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that Mr. Heller was touching girls in ways that made them feel uncomfortable, and

which was after the fashion that he was touching them in 2011, which is the case Ive

got in court now, the D.A.s decision-making process might have been different, said

Petersen. Exhibits 7, 8.

[The District] knew essentially that Heller could not be trusted with young females, putthe girls [the other alleged victims] into a situation that was dangerous for them and then

they suffered when they didnt have to, said Petersen. Exhibit 7.

Petersen says if reports of the accusations a few years ago had been made, Heller mayhave been prosecuted. Exhibit 8.

But the DA might not have been so hesitant to proceed if Hellers previous allegedcontact with the two students who have now come forward had been documented and

investigated. Instead it was brushed under the rug, Petersen alleged. Exhibits 9, 15.

And, significantly, Mr. Petersens statements convey information that cannot be learned

from reading the pleadings in the case. Specifically, Mr. Petersen discusses children other than

plaintiffs who, he says, Mr. Heller abused and which shows a pattern of behavior. Exhibits 1, 5,

6, 7, 8, 9, 13, 16. (It should be noted that Mr. Petersen claims he knows of four or five other

victims as early as the mid-2000s. The declarations of the two new alleged victims, prepared

December 31, 2012, and February 8, 2013, were not provided to defendants until March 2013.

No additional information regarding any remaining purported victims has been provided. See

Hoyt Declaration, 16.)

The statements made by Mr. Petersen, and expected to be made by him throughout the

course of this case, constitute a threatened material harm to the Districts deep-seated interest in

an impartial jury. With Mr. Petersens predilection in talking with media and using his firms

website and social media as platforms for his lawsuit, there is a reasonable likelihood that the

threatened material harm tainting the jury pool and influencing the sitting jury -- will become



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reality. See In re San Juan Star Co., 662 F2d 108, 116 (1st

Cir 1981) (Where a partys right to

an impartial jury is at stake, there only needs to be a reasonable likelihood that material harm

will actually occur.).7

2. The narrowness of the order.

The purpose of the proposed protective order is to prohibit information that could

undermine the impartiality of the jurors and to effectively keep prejudicial information from

prospective jurors. Recognizing that information not so obviously prejudicial may emerge and,

ultimately, be prejudicial, the Districts proposed order, attached as Exhibit 12, prohibits the

attorneys and their staffs involved in the case from releasing or authorizing the release for public

dissemination ofany matters relating to the case without the Courts permission and other than

court-filed information.

The Districts proposed order is narrowly tailored in two respects. First, the order applies

only to the attorneys and their staffs, not to the media or the parties themselves. Second, the

proposed order is not a no comment rule. Under the order, the attorneys are still allowed to

provide factual information to the media about court filings. They can also provide other

information with the Courts permission.

3. The availability of less restrictive alternatives.

Although there may be less restrictive alternatives to the Districts proposed protective

order, none of these alternatives are effective. For instance, the use of voir dire and instructions

cannot eliminate prejudice caused by publicity during the trial or alleviate the harm to the

integrity of the judicial process caused by extrajudicial statements of the parties attorneys.

7 The effect of the intense publicity surrounding this lawsuit is seen by two letters to the editor of the Ashland Daily

Tidings following its December 4, 2012 article (Exhibit 3). Those letters cited the newspapers cheap sensational

journalism at the expense of Mr. Heller and the irreparable damage to Mr. Hellers reputation caused by the article.

Exhibit 11. While these letters were written by individuals who may be supportive of defendants, it shows the high

degree of emotion attached to this case.



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Similarly, a change of venue would do nothing to curb unwarranted statements by the parties

counsel.

B. Oregon Rule of Professional Conduct 3.6 does not provide the necessary

protections.

The District recognizes that Mr. Petersen already has good incentive to limit his

comments to the public by virtue of Rule 3.6 of the Oregon Rules of Professional Conduct, but

his past statements to the media and his use of his website, Facebook page and blog, as set out

above, demonstrate that additional restraints are necessary.

Rule 3.6 places specific limitations on extrajudicial statements by attorneys. It states:

(a) A lawyer who is participating or has participated in the investigation or litigation

of a mater shall not make an extrajudicial statement that the law knows or

reasonably should know will be disseminated by means of public communication

and will not have a substantial likelihood of materially prejudicing an adjudicative

proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by

law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary

thereto;

(6) a warning of danger concerning the behavior of a person involved, when

there is reason to believe that there exists the likelihood of substantial

harm to an individual or to the public interest; and



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* * *

(c) Notwithstanding paragraph (a), a lawyer may:

* * *.

Even though Rule 3.6 imposes ethical obligations on an attorney to refrain from making

prejudicial comments about a pending trial whether a protective order is in place or not, Mr.

Petersen has demonstrated through his extensive use of the media and his firms website,

Facebook page and blog to disseminate extrajudicial statements to the public statements that

could be perceived to be prohibited by Rule 3.6 -- that it is highly likely that these extrajudicial

statements will continue and could prevent from the District from obtaining a fair trial.

Moreover, while failure to comply with Rule 3.6 is an ethical violation and subjects an attorney

to disciplinary action, the fact of the matter is that in the course of violating the rule, the

prohibited information is nonetheless disseminated to the public thereby jeopardizing the

Districts right to a fair trial.

C. The issues raised regarding defendant Scotts prospective employment

demonstrate the negative impact of excessive pre-trial publicity.

Defendant Lynn Scott was recently hired as principal of an elementary school in the

Central Point School District. As reported by the Medford Mail Tribune in an article picked up

by other news outlets (see Exhibits 13, 15-16) some of the schools parents are demanding to

know why the district hired a woman named as a defendant in a sex abuse civil suit as their new

principal, and that a petition8

is circulating demanding transparency regarding Scotts hiring.

One parent is even quoted as saying that she is concerned that [Scott] will let this happen at [the

school].

8 The petition specifically references this lawsuit and calls for the superintendent and school board to remove Ms.

Lynn Scott from her position as the new principal of Mae Richardson Elementary School, effective immediately.

Exhibit 18.



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The article goes on to report that Ms. Scott is named in this lawsuit and that the lawsuit

alleges that school administrators knew Heller had a pattern of abusive behavior and failed to

protect the students. Exhibits 13, 15-16. As noted earlier in this memorandum, the complaint

in this case does not allege a pattern of abusive behavior by Mr. Heller, and it is Mr. Petersen in

his statements to the media who claims there is a pattern of abusive behavior.

The article also attributes some of the reported information as provided by Mr. Petersen.

It quotes Mr. Petersen as stating the District Attorney brushed under the rug the incidents

involving the other two students. It also discusses affidavits from two students other than

plaintiffs that it says Mr. Petersen obtained, and the article quotes extensively from one of them.

As noted earlier, these affidavits have not been filed in this lawsuit or any other lawsuit. These

affidavits were provided by Mr. Petersen. See Hoyt Declaration, 16.

The article also reports that a public meeting on Ms. Scotts hiring is scheduled which

did, in fact, occur on April 18, 2013. At the hearing, a handout was distributed to those in

attendance. Exhibit 19. The handout contains Possible Questions to ask the Panel. Some of

the Possible Questions refer to the two affidavits discussed above. One asks if the affidavits

have been read and states that [A]s a named defendant, Mrs. Scott has copies of the affidavits;

* * *. Another refers to the sworn statement allegations against Lynn Scott. Notwithstanding

the fact that the affidavits are not part of the record of this lawsuit, the affidavits were obtained

by Mr. Petersen and it is entirely reasonable to assume that he is responsible for their

dissemination to whoever prepared the handout.

The public meeting on Ms. Scotts hiring was followed-up by a School Board meeting on

April 23, 2013. At the meeting, concerned parents, grandparents and friends of students who

cannot support [Ms. Scotts] hiring provided a prepared statement to the Board. Exhibit 20.

The statement called for, among other things, the Board to survey parents regarding their support

or opposition to Ms. Scotts hiring with the survey including a complete description of the



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present litigation to which Ms. Scott is a party. The statement included an agenda for a

Follow-Up Parent Meeting to be held April 30, 2013. Exhibit 20, p. 4. An agenda item under

Unanswered questions parents still have is The District says the allegations are unfounded. Is

this true? Presentation of affidavits & declarations by plaintiffs attorney Tom Petersen and

alleged victims.

Clearly, Mr. Petersens interaction with the media and his own dissemination of

information has played a significant role in the situation surrounding Ms. Scotts prospective

employment. It is extremely unfortunate for Ms. Scott, and it demonstrates the effect of the

excessive publicity on this case and shows by the parents reactions to Ms. Scotts hiring that

continued publicity in the case could prejudice defendants right to a fair trial.

CONCLUSION

While the District recognizes that limiting the extrajudicial statements of the attorneys

involved in this case raises constitutional issues, Mr. Petersens statements to the media and his

use of his firms website, Facebook page and blog to make his case, has put the Districts right to

a fair trial by impartial jurors at risk. The Districts motion for a protective order should be

granted.

DATED this 29th

day of April 2013.

GARRETT HEMANN ROBERTSON P.C.

/s/ Kim E. HoytKim E. Hoyt

OSB No. 914080503-581-1501

503-581-5891 (FAX)[email protected]

Of Attorneys for Defendants Jackson County School DistrictNo. 9, Cynda Rickert and Lynn Scott



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CERTIFICATE OF SERVICE:

Jane Doe, et al. v. Jackson County School District, et al.


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CERTIFICATE OF SERVICE

I hereby certify that I caused to be served the foregoing MEMORANDUM IN

SUPPORT OF JACKSON COUNTY SCHOOL DISTRICT NO. 9S MOTION FOR

PROTECTIVE ORDER on the date indicated below,

[ ] Via First-Class Mail with postage prepaid

[X] Via Electronic Filing System

[ ] Via Facsimile Transmission

[ ] Via Hand Delivery[ ] Via Overnight Delivery

to the following person(s) a true copy thereof, contained in a sealed envelope (if other than byfacsimile transmission), addressed to said person(s) at their last known addresses indicated

below:

Thomas N. PetersenBlack, Chapman, Webber & Stevens

221 Stewart Avenue Suite 209

Medford OR 97501OSB No. 974645

Ph 541-772-9850; Fax 541-779-7430

[email protected],

[email protected]&

[email protected]

Attorneys for Plaintiffs

Brett C. MersereauMersereau Shannon LLP

1 SW Columbia Street Suite 1600

Portland OR 97258OSB No. 023922

Ph 503-226-6400; Fax 503-226-0383

[email protected]

Attorneys for Defendant Joel Heller

DATED April 20th , 2013.

GARRETT HEMANN ROBERTSON P.C.

/s/ Kim E. HoytKim E. Hoyt

OSB No. 914080503-581-1501

503-581-5891 (FAX)[email protected] Attorneys for Defendants Jackson County School District

No. 9, Cynda Rickert and Lynn Scott

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Exhibit 1, Page 1 of 1

Case 1:12-cv-02184-CL Document 37-1 Filed 04/29/13 Page 1 of 1 Page ID#: 169


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Documents

Lynn Scott's Motion for a Protective Order filed 4/29/13