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City Council Won't Settle; Will Now Spend Thousands More in Fitzmaurice "Hissy Fit" Case
by Robert Norse
Sunday May 8th, 2011 9:50 PM
So far the Santa Cruz City Council won't settle the 9-year long legal battle in the Norse v. City of Santa Cruz (mock-Nazi salute) case; it hasn't even made a counter-offer. Instead in two closed sessions it authorized more thousands to be spent on an East Coast legal firm to prepare an unlikely appeal to the U.S. Supreme Court. Their hope is to overturn an 11-member en banc panel decision which found I have a right to take three Mayors to trial for repressive behavior at City Council. Apparently City authorities want to recover a Mayor's right to exclude a member of the public as former Mayor Fitzmaurice did in March 2002 in what two judges called Fitzmaurice's "hissy fit".
The issue is City Council's power to use the threat of arrest for characterizing the Mayor's behavior as Nazi-like--even in the absence of an actual disruption of the meeting. My "crime" (for which I was arrested but never charged) was raising my left arm briefly in a "don't act like a bunch of fascists gesture" that the Mayor didn't notice and the Sgt. at Arms ignored. Nine years ago in March of 2002.

Last December, a rare 11-member panel of the 9th Circuit Court of Appeals overruled a three-judge panel. They ordered I was entitled to have a long-delayed trial. For the second time higher courts told Judge Whyte, a federal judge sitting in San Jose, to try my long-delayed lawsuit against three Mayors for false arrest at City Council. The arrest came after I made a silent "mock-Nazi" salute that no one but Councilmember Tim Fitzmaurice noticed at the time.

A video of the two-second incident made by activist Becky Johnson can be viewed at .

The case has already reportedly cost the City Attorney's office around $150,000. I had originally asked them to simply change the Council rules to reflect a citizen's First Amendment right to register a dissenting opinion, pay minimal attorney fees, and pay punitive and compensatory damages for the false arrest. City Attorney Barisone and a succession of City Council's under City Manager Dick Wilson and now Martin Bernal have chosen a more costly course.

The intent seems to be maintaining the power to frighten critics into sitting in Council with their hands folded and their mouths shut and fitting all their remarks into increasingly short public comment periods without "indecorous" language.

The 9th Circuit Court's opinion and my notes on their December decision can be found at .

Further news coverage of the decision: & .

The New York Times posted an editorial supporting the decision ("Speech, Cranky and Free" at ).

Video of Arguments Before the 9th:

Audio of Arguments before the 9th:

My civil liberties attorneys Kate Wells and David Beauvais declined to appeal past the 9th Circuit Court decision though we looked for further clarifications (which weren't forthcoming).

City attorney George Kovacevitch badly bungled the City's already weak arguments when he spoke before the 9th Circuit Court last summer, absurdly arguing that the public should not be allowed to hold up signs or expressive any negative sentiments like booing. The judges responded with raking cross-examination (see and hear the session above).

I spoke to the City Council in closed session in early April and sent them a follow-up statement at their next Closed Session. I was hopeful they might actually be interested in making some meaningful changes in the Council rules rather than drag us all through the courts again in the midst of the City's budget crisis.

However at last month's settlement conference and after, the City Attorney's office resisted any meaningful changes in the Council's repressive rules. Instead Barisone's bunch persuaded the City Council to throw more money at this case when they discussed it in closed session (though the details remain unknown as City Council hides this discussion from the public).

My settlement offer was that Oral Communications be restored to three minutes, placed again at a regular evening session, allowed on a first-come, first-serve basis (instead of sending activists to the back of the line--which violates the Public Meetings Act anyway), and adopting the Board of Supervisor's policy of everyone to speak, even it meant extending the time of the meeting. I also wanted elimination of the so-called "decorum" rules instituted by "Hissy Fit" Fitzmaurice when he was Mayor in 2001, which empower Council members to interrupt and attempt to censor speakers, who speak candidly or harshly.

Most important, I wanted it made crystal clear that a violation of a Council rule cannot be used to threaten eviction or arrest unless it materially disrupts the meeting--a key part of the 9th Circuit Court decision. I gave a speech on this issue which I'll probably reprint below. As far as I'm concerned, the 9th made it clear that it's already the law that the Council has to stop threatening and arresting unless there's a real disruption, but this needs to be made explicit in the Council's rules and, more important, injunctively required for the Council's future conduct.

In addition I asked for some damages for false arrest to discourage this from happening to the next critic. And attorneys fees (which have mounted up hugely over the last 9 years and will continue to mount in the hundreds of thousands of dollars) so the next victim will get an attorney.

I had hoped that those Council members who had spoken out during the 2008 election campaign for more public comment time and greater government transparency might use this offered settlement to push for a liberalizing of the rules. No dice. Tony Madrigal didn't return calls. Katherine Beiers gave me three minutes on the phone and said she would be unwilling to introduce any changes in the Council rules, in spite of her campaign rhetoric.

Instead, the City Attorney's office asked for an extension of time to appeal the the 9th Circuit Court's decision to the U.S. Supreme Court. As I understand it only 5% of the cases so presented actually get heard. More money being spend to defend more arbitrary power.
According to yesterday's Sentinel article, the City has hired Richard Ruda, former chief counsel of the State and Local Legal Center in Washington--presumably a high-powered (and probably high-priced) Maryland attorney to defend the indefensible (see

It's not clear but the City may be packing together with other cities under the aegis of the League of California Cities to overrule earlier court decisions to limit public input in city councils across the country. Currently the courts require an actual disruption before the Council can haul you out and lock you up. They can't claim a "rule violation" and exclude you (unless you believe their bluster and leave).

Yesterday I made a Public Records Act request of the City Attorney's office to determine how much money they're spending on Ruda and the appeal. They're supposed to reply within ten days.

Mayor Ryan Coonerty--quoted in the Sentinel as a supporter of this dog-and-pony show--presents himself as a constitutional lawyer and teacher. However his actions speak differently. Coonerty has unilaterally decreed increasingly repressive rules at City Council to screen out dissenters. Starting last December, he cut back public access, reducing Oral Communications to two minutes per speaker, even when there are only a few speakers.

He further segregated Oral Communications in a bizarre isolation chamber "special session" of City Council first at 5:30 PM then at 5 PM--a procedure unprecedented at other city councils ("Standing Up to Bullying at City Council" at ). He eliminated the right of the public to speak individually on most agenda items, unless a member of the Council "pulls" the item ("Coonerty Uses New Consent Agenda Gag Rule" at

He has refused to reveal his public meetings schedule, disclose the lobbyists who have spoken with him, or to keep a promise for a public interview on Free Radio Santa Cruz.

Throughout the downtown area he initiated a new anti-loitering law-- the Parking Lot Panic Law (which he terms the "Parking Lots and Garages Trespass Law") --which makes sitting in your own vehicle in a space you've paid in any city-run parking garage or lot a crime. The Coonerty law also makes it illegal to socialize there, to distribute political literature, or do anything other than walk on through or park your vehicle (. Coonerty's police are running ACLU petitioners out of the Trader Jo's parking lot in violation of the state Pruneyard decision and the First Amendment.

It's not surprising he wants to defend the repressive procedures he's decreed at City Council tooth and nail.

Two Sentinel Op-Ed pieces I wrote further define the issues and the value of this lawsuit for the community:

"Court's decision brings back the First Amendment to Santa Cruz"

"City Council silencing dissenting voices"

The Council's response was the latest in a long line of actions designed to specifically shut me up because of the specifics of my criticisms (having to do with the criminalization of the homeless). The devices used by the City Council have become increasing baroque and byzantine.

Selectively giving me less time to speak than other speakers, creating new rules that limited any speech during the important Consent Agenda, limiting that speech further by requiring speakers get "permission" of a Council member to discuss an item on that agenda, walking out on me during my presentation and then having a police officer force me out of the meeting when I attempted to continue, assailing me by name from the podium without allowing a right of reply, preventing me from bringing in visual aids, criminalizing signs I held up from the side of the room as "distracting", turning off my microphone during Oral Communications to stop me from discussing the illegal police arrest of a homeless man, interrupting me when I attempted to refer to offending Council members and police officers by name at the public microphone, allowing a police officer to physically assault me in a meeting with no arrest announced....

For those who think this is a wasteful and/or repressive expenditure of City money in a time of alleged financial crisis,
E-mail Mayor Coonerty at rcoonerty [at]
or Let the entire City Council at citycouncil [at]
or Write the Sentinel (info at

Let me know your experiences with the City Council and what rules you feel need to be changed.

My attorneys, sympathetic activists, PeaceCamp2010 defendants, and I are talking about offering to drop some of the financial demands in return for dropping the Sleeping and Blanket Bans, setting up Campgrounds, and dropping all past citations.

This would include exempting homeless people without shelter (in a city that has essentially no walk-in shelter most of the year) from criminal prosecution for sleeping in "forbidden zones" (such as City Hall, the Library, the Pogonip, the Levee--whatever area the City chooses to fence off next to drive away homeless people).

This discussion is on-going.
Listed below are the latest comments about this post.
These comments are submitted anonymously by website visitors.
Court Turned Down City's Pointless AppealRobert NorseWednesday Nov 9th, 2011 6:02 PM
Late SeptemberRobert NorseThursday Sep 1st, 2011 7:00 AM
Another choiceMattThursday Jun 30th, 2011 5:50 PM
Another VoiceRon Pomerantz (posted by Norse) Sunday Jun 26th, 2011 11:27 PM
Umm, ya part 2MattThursday May 19th, 2011 3:39 PM
Krohn, Fitzmaurice, and KennedyInterestingTuesday May 17th, 2011 8:48 AM
Offering a settlement is NOT "extortion"Becky JohnsonTuesday May 17th, 2011 7:58 AM
SettlementGeneThursday May 12th, 2011 12:36 PM
It's All City Attorney Barisone's Faultfire himWednesday May 11th, 2011 10:50 PM
Umm, yaMattWednesday May 11th, 2011 12:16 PM