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A citizen may have a right to address a public body, but that free speech right cannot be transferred to an attorney or other representative, a Northern District of New York federal judge has ruled. Judge David N. Hurd’s ruling on an issue of vicarious exercise of a constitutional right came in the case of a teacher who was denied tenure and then retained an attorney to address the school board on her behalf at a public meeting. When the attorney was not allowed to speak, the client — through the attorney — sued. But Judge Hurd said the teacher’s free speech rights were not implicated because it was not she who was denied an opportunity to speak. Prestopnik v. Whelan, 5:02-CV-1130, involves a teacher in New York’s Greater Johnstown School District who was not recommended for tenure. Jan S. Prestopnik hired attorney Elmer Robert Keach III of Albany, N.Y., to speak on her behalf at a meeting of the Board of Education. However, the district refused to allow Keach to speak during the public session of the meeting and invited him to write a letter to the board if he wanted to address the denial of tenure. Prestopnik sued, alleging a violation of her First Amendment rights. The question before Hurd was whether the free speech rights of Prestopnik were implicated when her attorney was refused a chance to address the school board on her behalf. Judge Hurd found no authority for the proposition that a constitutional right can be delegated or exercised vicariously. He also distinguished this matter from one where representation by counsel or surrogate was necessary — such as a situation where an individual is physically unable to speak for himself or herself, or the right to counsel is implicated by the nature of the proceedings. “Considerations of agency and constitutional law compel the conclusion that there is no First Amendment right to appear through an agency (including a licensed attorney) at a regularly scheduled, non-adversarial board meeting at which no action was going to be taken with respect to plaintiff’s property rights,” Hurd wrote. “Because the board meeting at issue here did not involve binding determinations affecting plaintiff’s legal rights, there was no need, or right, for her to be represented by counsel.” Hurd also cited “prudential considerations” in support of his decision. “Suppose, for example, a large group of individuals hired a ‘spokesman’ (whether an attorney or not) to speak on their behalf on the steps of Capitol Hill (a traditional public forum),” Judge Hurd wrote. “Under plaintiff’s argument, if the spokesman was not permitted to speak, every individual in the group that retained the spokesman would have suffered a constitutional injury regardless of the fact that no member of the group was personally precluded from speaking.” However, while Judge Hurd said Prestopnik had no constitutional claim, he suggested that Keach, the “only person who may have sustained constitutional injury in the present case,” may. Keach said he will appeal. He also said he will sue. “I will sue the school board myself since that is apparently the only remedy I have,” Keach said Friday. The district was represented by Patrick J. Fitzgerald of Girvin & Ferlazzo in Albany.

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