Judge rules differently on 'Doe' issue (Hazleton Standard-Speaker)

By L.A. TARONE
Staff Writer

The judge who allowed anonymous plaintiffs in the case of Hazleton’s Illegal Immigration Relief Act would not allow them in another case.

In the IIRA case, Judge James M. Munley ruled 10 plaintiffs, identified only as “John Doe” and “Jane Doe,” had standing. He allowed them to file depositions rather than take the stand.

But he ordered plaintiffs in a civil suit against the Pleasant Valley School District in the Poconos, who are identified only as “Jane and John Doe” in court papers, to identify themselves.

The suit was filed over the alleged actions of history teacher Bruce H. Smith Jr. In a lesson, he was alleged to have shown gory historical photos and to have used sexually explicit language in class.

At least two students complained to the school district. The suit alleges the district mishandled those complaints. It appears the plaintiffs are not students, as the suit states that it was filed by “adult competent individuals who reside in Monroe County.”

The Web site thesmokinggun.com, run by Court TV, posted the suit. It named the school district, the school board, Superintendent Dr. Frank Pullo and PV High School Principal John J. Gress as co-defendants. It does not name Smith.

It claims Smith asked girls in the class what “they were wearing during a pillow fight (i.e. panties), discussed push-up bras and that he skipped college classes to ‘bang the cheerleader.’”

It also alleges he gave or lent copies of his memoirs, “Memoirs of a College President,” to 16- and 17-year- old students. The suit reprints some quotes from it and they are sexually explicit. It claims giving students copies violated existing unlawful harassment policies.

The suit also claimed the district retaliated against students who complained. It asked for “all remedies available … including but not limited to injunctive relief in the form of ceasing the retaliatory conduct as well as the continued abuse and corruption of minor children, nominal damages, punitive damages against individual defendants, attorney fees and costs … and emotional distress.” It does not mention a monetary figure.

The second count of the suit claimed the district and school board were “deliberately indifferent to plaintiffs’ rights and intentionally failed to train its employees adequately.”

The suit demanded a jury trial and attached examples of four “gory” photos of murder victims.

The Pleasant Valley suit was filed May 9 in the U.S. Middle District Court in Scranton. Shortly after it was filed, Smith took the balance of the school year off, though Pullo (who has since retired) told the Pocono Record that the decision was Smith’s, not the district’s.

Some of Smith’s students and their parents have defended him, saying he gave students who might be offended the option of looking away or leaving class.

The two plaintiffs were represented by Pittston attorney Cynthia Pollick. The district was represented by attorney John Freund III of the Bethlehem law firm King, Spry, Herman, Freund and Faul.

Freund filed a motion asking Munley to dismiss the suit because the plaintiffs filed anonymously.

Munley did not throw out the case, but he ordered the plaintiffs to identify themselves for it to proceed.

Munley could not be reached for comment.

In an e-mail, Pollick said, “Although I am disappointed with the decision, I fully respect Judge Munley.”

Different opinions
In his 206-page decision in the IIRA suit, Munley cited the Federal Rules of Civil Procedure that demands litigants provide the names of all parties. He pointed out those rules state that plaintiffs should be permitted to remain anonymous “only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm or when the injury litigated would be incurred as a result of the disclosure of the plaintiff’s identity.”

But he cited cases such as abortion and mental illness in which plaintiffs were allowed to use pseudonyms.

“Courts have found that plaintiffs could proceed anonymously because they feared that revealing their true identities would lead to physical violence, deportation, arrest in their home countries and retaliation against the plaintiffs’ families for bringing suit,” Munley wrote.

He also cited a 2001 federal case, Doe Vs. Evans, that found “the public’s right of access should prevail unless the party requesting pseudonimity demonstrates that her interests in privacy or security justify pseudonimity.” He ruled the IIRA did.

In the Pleasant Valley suit, Munley noted the Federal Rules of Civil Procedure require all parties be named, unless they get court permission to proceed anonymously. He also noted “Jane and John Doe” did not do so.

He then cited a series of previous court decisions related to plaintiffs’ identities and their ability to proceed anonymously; all cited decisions discussed the circumstances or threats to plaintiffs should their identities become known.

Munley ruled the Pleasant Valley suit did not rise to that level.

“Plaintiffs here argue that their use of pseudonyms is justified because their safety has been threatened,” Munley wrote. “They contend that exposing their identities would put them and their families at risk.”

As proof, the plaintiffs pointed to a student blog that claimed they weren’t releasing their names “because they know about 100 people will go chase then down with torches and pitchforks as soon as their names come out.”

“We do not see this statement as a direct threat to the plaintiffs or their families, but more likely idle chatter about public attitudes towards the plaintiffs’ claim,” Munley wrote. “Since filing a lawsuit, particularly in a matter of public interest, often exposes the litigants to controversy and disapprobation, we do not find mere expressions of anger toward the plaintiffs sufficient to warrant allowing them to proceed anonymously. Plaintiffs have not pointed to specific threats that justify the extraordinary means of allowing them to proceed anonymously.”

But Munley denied Freund’s motion to dismiss the case because of his order for the plaintiffs to identify themselves.

“We find the defendants’ motion to dismiss is moot,” Munley wrote.

Decisions sound
Munley’s two decisions are sound, according to Dr. Matthew Woessner, a professor of public policy, who also teachers constitutional law at Penn State Harrisburg.

“The American legal system is set up so that, except in extraordinary cases, the defendant has a right to confront his accuser,” Woessner said.

“It makes perfect sense to me, though I understand the students or parents must be uncomfortable. But the reason is to guarantee the rights of the defendant,” he said.

“The reasons a judge could allow defendants to conceal their identities (in the IIRA case) is because they place themselves in legal jeopardy by openly admitting they’re in the country illegally,” Woessner added. “They’re not making accusations against an individual. No one’s property or liberty is in jeopardy.

“But when one person is making accusations against another, that person has a fundamental right to know the identity,” Woessner continued. “But when you’re challenging the constitutionality of a law, the law doesn’t care.”

The plaintiffs have not yet decided whether they will comply with Munley’s order or drop the case, Pollick wrote.