Less than equal

By LANCE TAPLEY  |  October 2, 2009

AG versus commission staff

Mills herself would not directly say why she sent Martha Hallisey-Swift, an assistant AG, to make the argument she did, only tersely stating in an e-mail that “a prison is not a place of ‘public accommodation’ under the law.” Rowe, who was AG from 2001 to 2008, when Mills succeeded him, said in a statement issued by his campaign, “Any change recommended by the Office of the Attorney General in 2003 would have been a direct result of the Superior Court decision of November 2002 and not as a result of some sort of policy change in the office” — though the statement also said Rowe didn’t recollect the issue.

The late-2002 court decision to which Rowe referred was Napier v. Department of Corrections, in which Justice Atwood dismissed part of a discrimination claim by Maine State Prison inmates Philip Napier and David Mason against the prison because “a prison is not fully open to the public” and it “offers no services to the general public” and so isn’t a public accommodation.

But the human rights commission attorney, Gause — who had represented Napier and Mason while in private practice — argued that Atwood’s decision no longer had to be followed. He wrote a memo to executive director Ryan citing different precedents from those cited by Hallisey-Swift, including a 2007 decision by the Maine Supreme Judicial Court and a 2006 Vermont Supreme Court decision. Gause also used different logic from Atwood’s to arrive at the conclusion that government buildings like jails and prisons could be considered places of public accommodation even if all the public couldn’t circulate everywhere in them — as the public couldn’t, for example, in a courthouse, which in the law is given as an example of a place of public accommodation. And Gause noted that places of public accommodation are not limited to buildings where services are given to the general public. He cited country clubs as an example.

But in their brief discussion before their three-to-two decision, the commissioners didn’t deal much with legal arguments.

The dominating figure in the vote was the chairman, Vestal, of Plymouth, a 19-year commission veteran. He waved away “jailhouse lawyer” prisoner complaints with “It used to be they’d use cigarettes to buy testimony. I don’t know what they’re using now.”

Also thinking little of prisoner human-rights complaints in general was Commissioner Fredette, a Newport lawyer, who observed, “Once they get into jail they have not a lot to do,” so they file frivolous complaints. “If you don’t like a particular person, you can file a complaint.”

Two commissioners, Sallie Chandler, of Lebanon, and Joseph Perry, of Searsport, supported the staff’s position, but said little at the meeting. Commissioner Jadine O'Brien, of Portland, cast the deciding vote, saying she would defer to Vestal’s “personal expertise.”

Thus, the majority of the commissioners — all of them appointed by Democratic Governor John Baldacci — simply didn’t think prisoners deserved the human-rights protections the commission could have offered them.

“It’s inconceivable to me that the State of Maine can say to businesses that discrimination is illegal and then discriminate itself in its own operation,” comments Zachary Heiden, staff attorney for the Maine Civil Liberties Union. “I hope that’s not the law, but if it is, then that needs to be changed.”

Lance Tapley can be reached atlance.tapley@gmail.com.

Editor's Note: "Less than equal" misidentified a member of the Maine Human Rights Commission who cast the deciding vote in denying commission protection to inmates. It was Jadine O'Brien, not A. Mavourneen Thompson. Thompson has since been confirmed to the commission. She says would have considered the matter with an open mind had she been on the commission at the time of the vote.

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