probono

Oregon Court of Appeals overturns conviction of war protestors

A conversation with Alan Galloway, winner of DWT’s 2012 Heart of Justice Award

ACLU of Southern Calif. Gives DWT Its Artistic Freedom Award

4 6 10

summer 2012

Davis Wright Tremaine LLP is a national, full-service, business and litigation law firm representing clients located in the United States and around the world. The firm was founded on a simple guiding principle: to provide clients with high-value legal services customized to their particular needs. Today the firm has grown to include approximately 500 attorneys and nine offices, covering a wide range of practice and industry areas. We believe that all citizens deserve a voice and representation. And all lawyers have an obligation to assist people and organizations that otherwise would have no access to the justice system. We are pleased to provide you this report on our pro bono activities during the first six months of 2012.

DWT Pro bono summer 2012 // 3

of DWT’s attorneys participated in pro bono work during the first six months of 2012. Our attorneys have a broad range of interests and political philosophies, and they are free to pursue those interests within the guidelines of our pro bono program. These projects are often emotionally demanding and may even involve unpopular causes or clients. But they’re always rewarding.

We have embraced the American Bar Association’s challenge to law firms to commit three percent of their total firmwide billable

hours to pro bono work. During the first six months of 2012, our attorneys’ billable hours devoted to pro bono work totaled:

60%8,159

Even if our side has the weaker claim,

they shouldn’t lose just because they couldn’t

afford a decent lawyer.”

“

Convictions overturned in oregon pro bono speech caseby // mark fefer

DWT Pro bono summer 2012 // 5

In a victory at the State Court of Appeals, a DWT team from Portland

succeeded in overturning the conviction of several anti-war protestors who had been arrested for trespassing on the steps of the Oregon Capitol building.

An appellate panel ruled in April that the trial judge had erred in quashing DWT’s subpoena of two state legislators. The panel said the lawmakers were not immune from testifying and that their testimony could be used to determine whether the enforcement action against the protestors had violated their right of free expression, as DWT contends.

DWT attempted to get the rule under which the protestors were arrested— a ban on activity on the capitol steps between 11 p.m. and 7 a.m.—and the process under which that rule was created, declared a violation of the state constitution. But the appellate panel disagreed with those arguments. As a consequence, DWT will file a petition for review of the appellate court’s decision with the Oregon Supreme Court, says Portland associate Alan Galloway, who did much of the research for the First Amendment and state constitutional issues in the case.

In April, Galloway was named the recipient of DWT’s 2012 Heart of Justice Award (see page 6), in part for his work on this matter.

The arrests took place in February 2009, following several months of round-the-clock protests at the Capitol against the deployment of Oregon National Guard troops to Iraq and Afghanistan. Previous arrests had aroused the interest of the ACLU, but charges were never filed by the county. This time, the state chose to prosecute.

At the trial stage, DWT sought to subpoena two high-ranking state legislators—the Senate president and the former House Speaker—in order to learn what discussions took place in the run-up to the decision to enforce the activity-ban against the protestors. As DWT noted at the trial and in its briefs,

at least two groups—a church group conducting a Bible-reading marathon and participants in a three-on-three basketball tournament—had been previously permitted to use the steps overnight without interference.

Writing for the three-judge panel, Appeals Court Judge David Schuman found that the nighttime ban, created by a Legislative Administrative Committee, had been properly promulgated and authorized. But he said, whether the rule was properly enforced in this case

“depends on whether the motive driving the enforcement was a desire to protect public safety, as the state maintains, or to stifle defendants’ expression, as they maintain.”

Construing the Debate Clause of the Oregon Constitution for the first time ever, Judge Schuman further held that the protections that the Debate Clause grants state legislators from being

“questioned” extend only to legislative work, and do not insulate them from inquiries into discussions they might have had about enforcement.

DWT’s pro bono team on the matter was led by Tim Volpert. He and Galloway wrote the opening and reply briefs to the Court of Appeals, while Tim Cunningham helped with the supplemental brief, requested by the Court of Appeals, on the Debate Clause. Volpert, who is himself running for a seat on the Oregon Appeals Court this year, made the oral argument.

The arrests took place following protests at the Capitol against the deployment of Oregon National Guard troops to Iraq and Afghanistan.

Every year, Davis Wright honors one associate attorney at the firm who has

demonstrated an outstanding commitment to pro bono service. This year, the Heart of Justice Award was given to Alan Galloway, a fourth-year associate in our Portland office, who provided 195 hours of pro bono legal service in 2011 alone.

Galloway joined DWT in 2008 upon graduating from Boalt Hall School of Law at UC Berkeley, and immediately began volunteering with Outside In, a nonprofit agency serving homeless youth in Portland. He has since become the manager of DWT’s weekly legal clinic at Outside In’s downtown facility. In addition, he has devoted many hours to pursuing civil liber-ties cases alongside the ACLU (including the lawsuit against the state of Oregon described in the previous story). He has worked on housing and land use issues as well. Galloway has a Ph.D. in Philosophy from Duke University.

CONVERSATION WITH ALAN GALLOWAY, WINNER OF DWT’S 2012 HEART OF JUSTICE AWARD

by // mark fefer

A and the award goes to

DWT Pro bono summer 2012 // 7

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Have any clients at the clinic made an especially strong impression on you?

I’ve met kids who’ve been thrown out of their houses because they identified themselves as a different gender than the one they were born as. Sometimes people think, “Why are these kids homeless? They seem able-bodied.” Well, sometimes it’s because they’ve been totally unfairly rejected by their family. Another person who’s come to the clinic twice, he has had some unfortunate encounters with the police. People like him don’t view the police as I would, as someone to turn to for help. People who are home-less, or in danger of being so, are not getting the same treatment that the rest of us would expect from law enforcement. It’s important to get the perspective of someone who probably is getting a raw deal.

How has pro bono work benefited your own career?

It’s been a great way to build legal skills. Through pro bono work I’ve been able to argue summary judgment motions, ques-tion witnesses, make oral arguments—things that I wouldn’t necessarily have been able to do as early in my career if it were for big paying clients. Obviously the worthiness of the organization is also important. But that’s not to say I would only do pro bono work for something I 100% agreed with. That’s not the crite-rion. It’s: “Do we think this is something where one side needs representation better than what they would otherwise get?” Even if our side has the weaker claim, they shouldn’t lose just because they couldn’t afford a decent lawyer.

What drew you to pro bono work?

I always knew that pro bono would be part of my practice, and I think that it is important to give back to the community by doing work beyond what we do for our paying clients. I’ve become involved in specific pro bono projects for different reasons: Some offered opportunities for dealing directly with clients, at a time when I did not have much direct client contact; some have provided opportunities for courtroom experience; and my work for the ACLU has presented interesting constitutional issues, particularly concerning free expression—which has always been of interest to me. How

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King County Bar Association Pro Bono AwardAt the King County (Wash.) Bar Association’s annual dinner in June, Davis Wright Tremaine was honored with the organization’s 2012 Pro Bono Award “for consistent and diligent representation of pro bono clients.”

DWT given ‘‘Volunteer of the Year” award by Eastside Legal Assistance Program

Pro Bono Champion award from the American Health Lawyers AssociationIn February, Los Angeles associate Aleah Yung was named a Pro Bono Champion by the American Health Lawyers Association. She was cited for her work on behalf of an adult film performer whose identity and HIV status were sought by a state government agency. Last June, an Alameda County Superior Court judge ruled that Cal/OSHA had no right to subpoena the performer's clinic.

and the award goes to

»

DWT Pro bono summer 2012 // 9

In May, the Bellevue, Wash.-based Eastside Legal Assistance Program (ELAP), which helps

low-income residents of east and northeast King County, including survivors of domestic violence, presented DWT with its “Volunteer of the Year – Law Firm” award. The award was given during the organization’s second annual Breakfast for Justice, which DWT helped sponsor.

The firm was honored, in part, for its work helping a non-English-speaking mother and her children keep their home in a divorce proceeding.

The case was the subject of a video, shown during the breakfast, which featured DWT attorneys Rhys Farren and Craig Christian.

In an email to colleagues, Rhys gave a brief summary of the case:

V.’s husband abused her and their three kids during the couple’s 19-year marriage. She eventually filed for a temporary protection order (TPO) in 2011, alone, as is all too often the case. Her husband hired two lawyers and took control of the TPO hearing at which she was essentially unrepresented, and filed for dissolution. Over the next several months, her husband’s lawyers demanded that she sell the couple’s modest home, which was titled in his name and a cousin’s but not hers. Her husband’s attorneys convinced a Court Commissioner to order the house eventu-ally be listed for sale, claiming that it was the only marital asset and must be split. Selling her only home was a frightening prospect to this single mother with limited job skills in a fairly high- rent region. ELAP advised her initially, then transitioned the case to us a month before trial. After a later trial, the court ruled that she and her children could continue to live in the house until the youngest child (now 6) turns 18, as long as she pays a small mortgage payment each month, a fraction of any rent she’d otherwise pay. She also retains her marital community interest in the house and receives appropriate child support payments. For me the real story was V.’s courage, strength of character, and integrity.

In the last six months they got the client everything she needed,” said Stan Kehl, ELAP’s executive director. “We were looking for a client story that shows how clients benefit from our services, and this seemed perfect.”

“

ACLU GIVES

AWARD TO DWT FOR DEFENSE

OF L.A. ARTIST

On June 8th, the ACLU of Southern Cali-fornia presented Davis Wright Tremaine

with its 2012 Artistic Freedom Award. Four DWT attorneys—Bob Corn-Revere along with associates Anna Buono, Rory Eastburg, and Carla Veltman—were honored at the ACLU’s 18th annual law luncheon.

They were recognized for their pro bono work on a remarkable case in which the city of Los Angeles attempted to enjoin a collection of alleged graffiti artists, and former graffiti artists, from exercising some basic rights.

In a complaint originally filed in June 2010, the city attorney asked the court to impose a curfew on 10 named defendants and prohibit them from associating, possessing any “graffiti tool,” and being on certain public property (among other things).

The complaint purported to target one of L.A.’s most visible graffiti crews, known as MTA. But it sought to impose special restraints on certain of the defendants who had left such activity behind to pursue careers as legitimate artists.

and the award goes to

story // mark feferart // cris gheorghiu

DWT Pro bono summer 2012 // 11

The complaint posed a novel theory under California’s Unfair Competition Law, contending that defendants had used their tagging as “marketing” for their legitimate art, and it sought to confiscate profits derived from future sales of that art.

The ACLU took on the defense of one of the named defendants, Cris Gheorghiu, who also goes by the name of “Smear” and specializes in modern and graffi-ti-style work.

The ACLU attempted to dismiss the claims against Gheorghiu, but its motion was rejected by the Superior Court. Davis Wright then got involved in June 2011.

“The case presented a very serious First Amendment challenge, and one that needed to be answered,” says Corn-Revere.

One of the surprising elements of the suit was the city’s contention that the defendants’ alleged behavior was not just a “public nuisance” but unfair to other artists. The city accused the defendants of violating the state’s Business and Professions code, saying “the means by which Defendants utilize marketing tools, capitalize on their fame, and profit from their unlawful acts, are unfair and create a distinct competitive advantage over artists who comply with State law and local ordinances.”

Los Angeles took “a novel and very punitive approach” with this civil suit, says Corn-Revere.

Gheorghiu had already performed community service after pleading guilty to some graffiti-related misdemeanors in the distant past.

“Is there a First Amendment right to vandalize public property? No,” says Corn-Revere. “But the government cannot penalize an artist or enjoin his future activities because of past

mistakes, particularly where he already paid his debt to society.”

Last year, DWT filed a writ of mandate with the Court of Appeals, seeking rehearing of the arguments rejected by the Superior Court. But that too was rejected. That’s when Carla Veltman took the lead in preparing for trial.

“It was a really extreme case of govern-ment overreaching,” says Veltman. “They were trying to restrict people’s freedom of association, movement, and speech based on allegations going back ten years in some cases.”

DWT recently succeeded in reaching a settlement in the case, with the city agreeing to dismiss its complaint against

Gheorghiu in its entirety. Several other defendants targeted by the city have also reached settlements.

Says Gheorghiu in an email: “Carla has been nothing but good to me. She put a lot of my fears at ease by her obvious professionalism and commitment. The case is so larger than life and confusing to me that I would have been swallowed up whole by its enormity if left to try and navigate it on my own. I will forever be grateful to DWT.”

The case presented a very serious First Amendment challenge, and one that needed to be answered,” says Corn-Revere. “

Davis Wright Tremaine has long been a leader in litigating on behalf of media and concerned citizens to make records available to the public. Here are some of the cases we have been working on pro bono in 2012:

OPENING UP PUBLIC RECORDS

DWT Pro bono summer 2012 // 13

… On behalf of the First Amendment Coalition, filed suit against the U.S. Department of Justice. The suit seeks to compel release of agency documents addressing the legality of tar-geted killings of U.S. citizens overseas who are believed to be terrorists. The suit was prompted by discussions surrounding the killing of an American-born U.S. citizen and al-Qaeda operative who was killed in a CIA drone strike in Yemen in 2011.

… Represented a public records requester in a case where the Court of Appeal affirmed that the Santa Monica-Malibu Unified School District must release documents related to the investigation of a sexual harassment complaint against a high school teacher.

… On behalf of School of Americas Watch, filed suit to compel the U.S. Department of Defense to disclose names and assigned foreign military units of students, instructors and guest instructors from 2005-2010 at Western Hemisphere Institute for Security Cooperation (formerly known as School of Americas). The information is to help determine whether the U.S. is abiding by legal requirements to withhold assistance to foreign police or military units that may be guilty of human rights abuses.

… On behalf of the Center for Investigative Reporting, filed suit against California’s Department of Public Health, seeking uncensored copies of reports on abuse, poor medical care, and neglect at five state institutions for the developmentally disabled.

… On behalf of the California Newspaper Publishers Association and other media entities, filed amicus brief in appeal by the California First Amendment Coalition to the state Supreme Court, seeking access to the State Bar of California’s records on bar admissions. Plaintiff and UCLA law professor Richard Sander is seeking to compare performance on the exam among different racial and ethnic groups. The State Bar claims that neither the common law right of access nor the State Constitutional right of access to public records apply to its bar admission data.

… On behalf of news media entities and the Washington Coalition for Open Government, filed amicus brief with Supreme Court of Washington state. The brief is in support of a TV station’s appeal of a trial court ruling that permits the Seattle Police Department to withhold, for three years, the release of dash-cam videos that capture the interactions between the public and the police.

5th Avenue Theatre Association Affiliated Mental Health Programs Affordable Community OrganizationsAlameda News ProjectAlameda Soccer ClubAlaska Mountain Rescue GroupThe Alliance for Children’s RightsAllied Daily Newspapers American Place Theatre Anchorage Gospel Rescue Mission Anchorage Project Access Asian Bar Association of Washington AwamakiBainbridge Island Historical Society Bainbridge Island Land Trust Bank Street Law Office Bellevue Art Museum Beta Omega Foundation Big Brothers/Big Sisters of King and Pierce Counties The BothyBoy Scouts of America Cascade Pacific CouncilBoys & Girls Club of Portland Boys & Girls Club of South Puget SoundBridgetownCalifornia First Amendment Coalition California Newspaper Publishers AssociationCambrian Academy Truth Website

Casa JeffersonCenter for Investigative Reporting - California WatchChalk-Let The Chauncey Bailey ProjectThe Chris Elliott FundChurch of Tonga Cinema Seattle Clackamas High SchoolClimate Solutions Common Language Project Community Action Directors of Oregon Community Action OrganizationCommunity Development Law Center Community Service Society Community Voicemail National Office

Conservation Alliance Creative Advocacy NetworkCreative CaresCrisis Clinic Crooked Trails Crystal Stairs Culture Medicine The Defender Association Desert Tennis Association Design Builders Domestic Violence Project Downtown Seattle Association Dreamfly Eagle Pointe Homeowners Association East-West Chanoyu CenterEntertainment IndustryubatorEqual Opportunity Schools Ethical Gold Foundation Ethos Fences for Fido First Amendment Coalition Ford Scholar Family Alumni Friends of Seattle Mombasa Schools Friends of the Children - King County Friends of the Children - Portland The Friends of the Hidden RiverFriends of the Seattle Public Library Friends of Third Place CommonsFriends of Youth The German American School of Portland

Girl Scouts of Western Washington Rain City Rock Camp for Girls Gladrags Sustainable Women’s Health Global Visionaries Grease Bomb Greater Seattle Vietnam Associaton Habitat for Humanity Halsa Highline Soccer Association Hire America’s Heroes Homeless Task Force Housing Development Center HumblefactoryThe Human Dignity Trust Human Rights Watch Imagine Housing

Impact NWIndie Wine Foundation International Bicycle Club International Research and Exchange Board In Other Words Feminist Community CenterIola Foundation Iraqi Refugee Assistance ProjectJazz at Lincoln Center Jim Neill Memorial Foundation John Jay College of Criminal Justice King County Bar Association Legal Services for the Homeless King County Bar Association Neighborhood Legal Clinic King County Dependency CASAKing County Sexual Assault Resource CenterKent Youth & Family Services King Family Foundation K T Foundation of Oregon KUOWLake Washington Symphony Orchestra Lawyers’ Committee for Civil Rights of The Bay Area League of Education Voters Foundation Learning Gardens InstituteLedding Library of Milwaukie Foundation

Legal Action Center Legal Aid Foundation of Los Angeles Legal Voice LGBTQ AlumniLilluet Linn Benton Mediation Services Linnton Community Center The Living School Macdonald Center Manifest PhotographyMedical-Legal Partnership for Children Mercy Corps Microenterprise Legal Clinic (Washington Cash) Microsoft Detained Immigrant Project

organizations we’ve helped in 2012In addition to the organizations and individuals mentioned elsewhere in this report, we have provided pro bono assistance to many organizations around the country during the first six months of 2012, including:

One of the core values at DWT is commitment to public service.

Sam Bayard (NYC)

Robert Corn-Revere (Chair · WDC)

Duffy Carolan (SFO)

Eric L. Dahlin (PDX)

Stephen C. Ellis (SEA)

Rhys Farren (BELL)

Jennifer Toland Frewer (WDC)

Mark Gabel (SFO)

Alan Galloway (PDX)

Boris Gaviria (BELL)

Emilio Gonzalez (LA)

Elizabeth Hodes (ANCH)

Melissa Mordy (SEA)

Julie Orr (Pro Bono Coordinator · SEA)

Linda Steinman (NYC)

Robert K. Stewart (ANCH)

Aleah Yung (LA)

Pro Bono and Public Service Committee

Contact UsInformation about our pro bono policy is available on our Web site at dwt.com/probono or by contacting:

Julie Orr (Pro Bono Coordinator · SEA) 206.757.8586 julieorr@dwt.com

Milwaukie Pioneer Cemetery Association Mt. Hood Cultural Center and Museum Mt. Zion/Female Union Band Historic Memorial ParkMujeres of The Northwest Museum of Performance and Design Naral Pro-Choice Oregon Naukati West New School Free Press Nirp North American Gay Amateur Athletics Northern Virginia Cash Coalition Northwest Christian Community Foundation Northwest Film Forum NYC Family Court Volunteer Attorney ProgramOffice of the Mayor of the City of New York Old Dominion Cotillion Olympia Food Co-Op One America Open Doors for Multicultural Families Oregon Coast Community Action Oregon Lions Sight and Hearing Foundation Oregon Appellate Pro Bono ProjectOregon Women’s Lacrosse Umpires Association Out & Equal Workplace Advocates Overlake School Pacific Musicworks Pacific Northwest Agribusiness Executive SeminarPacific Northwest Lesbian Archives Partners in Health Performing Arts Center Eastside Planned Parenthood Orange and San Bernadino Counties Poder Popup MuseumPortland Boathouse Portland Center Stage Portland Children’s Museum Portland Fruit Tree Project Portland Jazz Festival Program for Infants and Children PSU Business Outreach Public Law Library of King CountyRaoul Wallenberg Website Real Change Refit Remodeling for Independence Together Renton Area Youth Services Reporters Committee for Freedom of the Press Riverside Golf & Country Club Sahara Reporters San Francisco Urban Forest Foundation Seattle Art Museum Seattle Children’s Museum

Seattle Goodwill Seattle Playwrights’ Alliance Seattle Repertory Theatre Seattle Works Second Chance Legal ClinicSeldovia Public Library Senior Citizens’ Tax Exemption Slake Media Southeast Youth and Family Services Southside Coalition of Community Health Centers Special Olympics Oregon St. Andrew’s Legal Clinic Stand for Children Student Press Law Center Susan G. Komen Foundation Tax AnalystsTeatro Zinzanni Technical Assistance for Community ServiceTiny Toones Together Center Tuality Healthcare Foundation United Way of Anchorage University of Washington Entrepreneurial Law ClinicUniversity Presbyterian Church Villa Academy Vontundra VSA Arts of Washington Washington Assistive Technology Foundation Washington Appleseed Washington Biotechnology & Biomedical Association Washington Green SchoolsWashington (DC) Legal Clinic for The Homeless Washington Mennonite Fellowship Washington Public Affairs Network Washington Sichuan Friendship Association Washington State Bar Association Washington State Farmers Market Association Washington State Hospital Association We The People At Grant High School Wellspring Family Services The Wings of Freedom Project Within Reach Woman Vision Wonderheads Yes Men The Young Storytellers Foundation Your House Boxing & Community Club

DWT Pro bono summer 2012 // 15

Anchorage. Bellevue. Los Angeles. New York. Portland. San Francisco. Seattle. Shanghai. Washington, D.C. | dwt.com/probono