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Case 2:14-cv-01762-TSZ Document 13 Filed 11/24/14 Page 1 of 25

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Honorable Thomas S. Zilly

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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MICHAEL LEAL,
Plaintiff,

No. 2:14-CV-01762-TSZ

v.
EVERETT PUBLIC SCHOOLS, GARY
COHN, in his individual and official
capacities as Superintendent of Everett
Public Schools, CATHY WOODS, in her
individual and official capacities as Principal
of Cascade High School, LAURA
PHILLIPS, in her individual and official
capacities as Assistant Principal of Cascade
High School, ROBERT AGUILAR, in his
individual and official capacities as
Assistant Principal of Cascade High School,
and DOES 1 THRU 100,

DECLARATION OF SARAH E.
HEINEMAN IN SUPPORT OF
DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR
TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION

Defendants.

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Sarah E. Heineman states and declares as follows:


1.

I am over the age of 18, competent to be a witness, and have personal

knowledge of the matters set forth herein.

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DECLARATION OF SARAH E. HEINEMAN IN
SUPPORT OF DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION- 1
2:14-CV-01762-TSZ
372627

PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 13 Filed 11/24/14 Page 2 of 25

2.

I am counsel for Defendants in the above-captioned matter.

I offer this

declaration in support of their Brief in Opposition to Plaintiffs Motion for a Temporary

Restraining Order and Preliminary Injunction.

3.

Our office exchanged electronic correspondence with counsel for Plaintiff,

Kevin Snider, on or about November 19, 2014, indicating that Plaintiff was planning to file for

a temporary restraining order regarding the leafleting rule (BP 3222P). Our correspondence

is excerpted as follows:

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Thank you, Kevin. I will forward this to my client and discuss with them. I
know some of the key individuals are currently in a meeting, but I will get
back to you as soon as possible.
Sarah E. Heineman | Principal
Patterson Buchanan Fobes & Leitch, Inc., P.S.
2112 Third Ave., Suite 500 | Seattle, WA 98121
Direct 206.462.6770|Email seh@pattersonbuchanan.com
Portland Office:
1001 SW Fifth, Suite 1100 | Portland, OR 97204
Main 503.200.5400 | Toll Free: 800.722.3815

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From: Kevin Snider [mailto:ksnider@pji.org]


Sent: Wednesday, November 19, 2014 2:11 PM
To: Sarah E. Heineman
Subject: Leal v. EPS

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Dear Ms. Heineman,

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Thank you for calling me back today.

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As I related this afternoon, absent an agreement between the


parties, our office is planning to file an application for a
temporary restraining order regarding the leafletting rule (BP
3222P). The application would be based on the following.

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DECLARATION OF SARAH E. HEINEMAN IN
SUPPORT OF DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION- 2
2:14-CV-01762-TSZ
372627

PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 13 Filed 11/24/14 Page 3 of 25

facial challenge to a school rule that

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(1)

prohibits students from distributing literature that has not


been written by a student and

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(2)

restricts distribution to before and after school at the


schoolhouse entrance/exits

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Michael

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Leal

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has been suspended 3 times and is in imminent danger of


further suspension o

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expulsion

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Our office would stipulate not to file the TRO if school officials
will agree not to enforce BP 3222P as against my client until a
motion can be heard on a preliminary injunction. We would
agree to file the PI within a week of the stipulation. As to the
timing of a hearing on a motion, local rules read:
"
Motions...seeking a preliminary injunction...shall be noted for
consideration on a date no earlier than the fourth Friday after
filing and service of the motion." LRC 7. Hence, if our office
filed a PI motion next week, it would likely be heard on the
Friday after Winter break.
Please relate this to your clients and let me know whether they
are inclined to agree to a stipulation as described above.
Warmest regards,
DECLARATION OF SARAH E. HEINEMAN IN
SUPPORT OF DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION- 3
2:14-CV-01762-TSZ
372627

PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 13 Filed 11/24/14 Page 4 of 25

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Kevin T. Snider, Chief Counsel

PACIFIC JUSTICE INSTITUTE

www.pacificjustice.org

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4.

On or about November 19, 2014, our office informed Mr. Snider that the

Defendants would not stipulate non-enforcement of Policy 3222P with respect to Plaintiff

Michael Leal. Our correspondence is excerpted as follows:

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Kevin,
I discussed your request below that the District not enforce Procedure 3222P
as to Michael Leal until the time of a preliminary injunction hearing on this
matter. Because the law does not allow the District to make exceptions to its
policies for particular students and not others, it is not able to accommodate
this request. As you noted in our discussion, due to the upcoming school
holidays, there is a relatively short period of time in which this would be an
issue before a preliminary injunction hearing could be held. For that reason,
it appears that a Motion for Preliminary Injunction may be more appropriate
at this time than seeking a TRO. We understand that you may disagree with
us on that point, and we will file a response to any request for TRO.
In addition, it was brought to my attention that someone representing
himself as Michaels attorney came to Cascade High School today looking for
him. Because this individual is not Michaels parent or guardian or otherwise
listed as a contact for Michael, the school appropriately did not assist him in
locating Michael. This is a student safety issue and should you need
additional explanation, please let me know.
Thank you.
Sarah E. Heineman | Principal
Patterson Buchanan Fobes & Leitch, Inc., P.S.
2112 Third Ave., Suite 500 | Seattle, WA 98121
Direct 206.462.6770|Mobile 206.715.7432|Email
seh@pattersonbuchanan.com
DECLARATION OF SARAH E. HEINEMAN IN
SUPPORT OF DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION- 4
2:14-CV-01762-TSZ
372627

PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 13 Filed 11/24/14 Page 5 of 25

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Portland Office:
1001 SW Fifth, Suite 1100 | Portland, OR 97204
Main 503.200.5400 | Toll Free: 800.722.3815

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5.

Attached hereto as Exhibit 1, is a true and correct copy of a student complaint

received by Defendants. Identifying information has been redacted to protect student privacy.
6.

Attached hereto as Exhibit 2, is a true and correct copy of electronic

correspondence regarding options offered to Plaintiff Michael Leal.


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Attached hereto as Exhibit 3, is a true and correct copy of electronic

correspondence Plaintiffs impact on student tardiness.


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Attached hereto as Exhibit 4, are true and correct copies of District Policy No.

3220 and 3220P regarding Freedom of Expression.


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Attached hereto as Exhibit 5, are true and correct copies of District Policy No.

3222 and 3222P regarding Distribution of Materials.


I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
DATED this 24th day of November, 2014.

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PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.

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By:/s/ Sarah Heineman


Sarah E. Heineman, WSBA 33107
Michael A. Patterson, WSBA 7976
Of Attorneys for Defendants
2112 Third Avenue, Suite 500
Seattle, WA 98121
seh@pattersonbuchanan.com
map@pattersonbuchanan.com

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DECLARATION OF SARAH E. HEINEMAN IN
SUPPORT OF DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION- 5
2:14-CV-01762-TSZ
372627

PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

Case 2:14-cv-01762-TSZ Document 13 Filed 11/24/14 Page 6 of 25

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CERTIFICATE OF SERVICE
I, Theresa Nixon, hereby declare that on this 24th day of November, 2014, I
electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to the following:

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ATTORNEY NAME & ADDRESS


Conrad Reynoldson
Pacific Justice Institute
4421 51ST AVENUE NE
SEATTLE, WA 98105
Conrad3445@gmail.com

METHOD OF DELIVERY
Electronic Mail
ABC Legal Messenger Service
Regular U.S. Mail
Other: ________________________

Kevin T. Snider
Matthew B. McReynolds
Pacific Justice Institute
9751 HORN ROAD, SUITE 115
SACRAMENTO, CA 95827
ksnider@pji.org
mattmcreynolds@pji.org
I certify under penalty of perjury, under the laws of the State of Washington, that the
foregoing is true and correct.
DATED this 24th day of November, 2014 at Seattle, Washington.

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/s/ Theresa Nixon


Theresa Nixon
Legal Assistant

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DECLARATION OF SARAH E. HEINEMAN IN
SUPPORT OF DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
INJUNCTION- 6
2:14-CV-01762-TSZ
372627

PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701

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