All went well until district court judge Malcolm Marsh dismissed the case. Counsel and I had already concluded this was likely since judge Marsh had previously upheld the bulk mail ban in another, unpublished, case. We were already preparing an appellate strategy. I was quite surprised when, two weeks before the notice of appeal was due to be filed, Alison Hardy, one of our lawyers in the case, told me that Mara Taub of the CPR was opposed to appealing the dismissal.
I spoke with Mara and her position was that appealing the decision was too risky as we might lose in the Ninth circuit and an adverse ruling would probably lead to similar bans in California and other states. She believed that since Oregon prisoners had not been getting bulk mail it was okay to dump the case. She also expressed the view that prisoners had no rights and even if a court ruled in our favor, prisoncrats would not comply with the court order.
Throughout PLN's 11 year history I have handled and coordinated PLN's litigation, from deciding which issues to litigate, to recruiting counsel, to researching the relevant law, to settlement and trial strategy. In the division of labor at PLN this is just how things have happened. In light of Mara's opposition to an appeal, and her reasons for it, I consulted with PLN's board members. My position was that judge Marsh was wrong [PLN had already won this issue in Utah and Washington]. Further, there was nothing to preclude prisoncrats in other states from enacting similar bulk mail bans and it might be in states where we couldn't find counsel to litigate the matter and where we wouldn't have as good a fact pattern as we had in the Oregon case. In all likelihood, Oregon prisoners would continue to litigate the bulk mail ban pro se and eventually it would result in a published ruling which could be devastating if it was adverse. I also thought it was unlikely that, having lost four challenges to the policy in state and federal court, that any Oregon attorney would be willing to take a shot at the policy again and PLN would be barred by res judicata from doing so. PLN's board voted unanimously to appeal. I communicated this to Mara, and our reasons for pursuing the appeal and she was adamant about not appealing. PLN's board voted on the matter a second time and the outcome was the same.
This caused a conflict of interest for our trial attorneys, Alison Hardy and Marc Blackman, who consulted the Oregon Bar who told them that in light of conflicting instructions from clients (PLN wanted to appeal, CPR did not, our prisoner coplaintiffs had said they would abide by whatever decision the publishers made), they had to withdraw as counsel. This was especially annoying since by depriving PLN of counsel (which PLN had recruited in the first place) CPR would ensure that no appeal took place. If PLN did not have counsel by the time the notice of appeal had to be filed we ran the risk of not being able to appeal at all. Or worse, if a notice of appeal was filed and PLN did not have counsel to litigate the matter, the ruling could have been affirmed on the merits. As a corporation PLN can only appear in court with counsel. I had the unenviable task of calling every lawyer I knew who is admitted to the Ninth circuit and asking them if they would handle an appeal pro bono for a case we had just lost in the district court with plaintiffs unable to advance litigation costs, and needing an answer right away. Through a miracle, Seattle lawyers Sam Stiltner and Janet Stanton agreed to represent PLN and the prisoner plaintiffs under these conditions.
Alison and Marc informed Mara that PLN had secured counsel and the appeal would proceed without CPR. They asked CPR to waive the conflict of interest so they could work on the appeal with Sam and Janet to maximize our chances of success on appeal. CPR refused to waive the conflict.
Indeed, Mara went one step beyond that. She wrote and called Sam and tried to talk him out of representing PLN and the prisoner plaintiffs and tried to get him to drop the appeal! Fortunately, Mara was quickly dismissed as a crackpot and the appeal proceeded to its successful conclusion.
While all's well that ends well, in that we got counsel to prosecute the appeal, and we won the appeal, the point is that this outcome was by no means assured and certainly no thanks to CPR. CPR was quick to sell out the interests of Oregon prisoners and of all publishers who wish to communicate with them. In my view, CPR's actions went well beyond a mere difference of opinion and crossed the line into outright sabotage.
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