Democracy loses again at City Hall: "Pig in a poke" lawsuit settlement | A Pragmatist's Take | Douglas Moran | Palo Alto Online |

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Democracy loses again at City Hall: "Pig in a poke" lawsuit settlement

Uploaded: Oct 27, 2020
City Hall is again subverting the democratic process by settling a lawsuit filed by two Palo Alto residents and 8 others who are incensed that City Council did not give their virtue signaling/activism priority over responding to COVID.(foot#1)

After losing a 5-2 vote on this issue at the August 3 Council meeting, Mayor Adrian Fine when to the media: "Fine chafed at the idea of sending the issue to a vote and predicted that the measure would not pass. 'You don't put civil rights to a vote,' Fine said."(foot#2)

In two closed (confidential) sessions (9/28 and 10/19), City Council decided to settle the lawsuit by essentially giving the plaintiffs what they wanted. Now that the decision has effectively been made, the City Council will allow the public to speak at the November 2 Council meeting, after which Council will officially vote on what they decided behind closed doors. The timing of this meeting strongly suggests that public input is irrelevant -- nothing more than a legal formality.

The ^Staff report^ is 4 pages with an appendix. It gives no useful information on why the City has decided to settle. In fact, if you look at the many flaws and absurdities in the lawsuit, it is hard to believe that this lawsuit was not a pretext for some in City Hall to overturn the will of the people.

Disclaimer: I am not a lawyer.

----Who approves a settlement before finalizing the details? City Hall----

"... staff is in discussions with Plaintiffs' counsel regarding a full settlement of the lawsuit, with terms that will be finalized and made available to the public before a second reading of the ordinance is presented to Council." -- ^Staff report^, pg 3, middle of next-to-last paragraph.
The "second reading" is almost always a mere formality that provides a chance for Council to confirm that what Staff has written up is what they voted for, and it provides an escape hatch if they believe it was a bad decision. Second readings are typically bundled with 10-30 other items on the Consent Calendar where they are all approved on a single vote without discussion.

The second reading is scheduled for 14 days after the Council approves the settlement based upon incomplete knowledge of what will be in it. This is extraordinarily fast. For example, the Council vote on August 3 is not yet scheduled for its second reading. Or could City Hall have been deliberately "slow-walking" it?

I have little expectation of the Staff report other than it being issued so close to the Council meeting that it will preclude any significant media coverage or public discussion.

----The City Attorney can't be this inept: Constitutional right to travel inside the Preserve?----

The City Attorney as made a string of "mistakes" that have cost the City dearly: Over $50 million in replacement costs for the 75 affordable housing units lost in the President Hotel debacle, unenforceable requirements for grocery stories in developments ($1.8 million in uncollectable penalties).

Even with that, it is impossible to believe that City Hall judges itself incapable of hiring a law firm that could successfully defend against the lawsuit's "First Cause of Action" (¶61 - ¶66, ^pg 21^): That the US Constitutional Right of freedom of inter-state travel extends to hiking trails in the Preserve. These trails are repeatedly mentioned in ¶38 (^pg 10^) and incorporated into this Cause of Action in ¶60 (^pg 21^).(foot#3)

The first legal citation is to United States v. Wheeler (1920) which addressed the forceful removal of about 2000 striking workers from their homes in Arizona to New Mexico. The Supreme Court decision was that the federal government had no authority to punish those responsible, with that power residing in the states.
Just how is this applicable to the Preserve?

The second legal citation is ^Papachristou v. City of Jacksonville (1972)^ where the US Supreme Court overturned a vagrancy law. The two parts of the provided quote "Wandering or strolling ... are historically part of the amenities of life as we have known them." come from different paragraphs and are unrelated.
It took me only a single, simple web search and then a text search for "amenities" to find this deception. Was City Council informed of this in their closed session?

----A nature preserve is not a "park" in the Freedom of Speech sense----

The lawsuit cites ^Berger v. City of Seattle 2009 (US Court of Appeals, 9th Circuit)^.(foot#4) It revolved around restrictions on street performers in the ^Seattle Center^, a downtown campus contained multiple museums, theaters, sports complexes, and the Space Needle (^map^). Among these facilities is a substantial amount of traditional downtown park - lawns, trees, and gardens. The City's regulations were a response to territorial conflicts between the street performers and to complaints about harassment of others with particular attention to "captive audiences", such as people waiting in line to get into a museum or theater.

The ^Conclusion^ reveals that the underlying assumption of this decision on what is a "park" does not apply to Foothills Preserve: "In other words, while some -- among them, the dissenters in this case -- might prefer a 'Truman Show' version of pristine placidity in our public parks, our First Amendment jurisprudence rests on a very different vision."

A case that is routinely cited in these discussions is ^Warren v. Fairfax County (1999) in the US Court of Appeals, 4th Circuit^. The decision describes the park as "Stretching in front of the Fairfax County Government Center Complex is a large grassy mall, approximately thirty yards wide and spanning about 200 yards". Not just vastly different from a nature preserve, but a prime location to hold a demonstration.

Another of these cases is ^Leydon v. Town of Greenwich (2001)^ in the Supreme Court of Connecticut (state court, not US). This decision crucially depends on a Connecticut state law. In the various discussions mentioning it, I have not seen any reference to a similar California law.

I will delve below into more details -- such as natural trails becoming area for the wide range of "expressive activities" encompassed by the legal term "Freedom of Speech".

----A bad-faith lawsuit----

^My previous blog^(foot#5) step through the many, many instances of deceptive and misleading statements and inconsistencies in the "Introduction" (^pg 2^) and the "Further Factual Allegations" (^starting on pg 8^).

For example, at the end of the Third Cause of Action (^pg 23^ ¶75) the lawsuit states "By limiting the use of the Park to Palo Alto residents and threatening non-residents with criminal prosecution, ..." I hold that this is a bald-faced lie. From the August 3 Council meeting, the plaintiffs knew, or should have known, that violations were dealt with using the equivalent of parking tickets, not criminal prosecution, and that at that meeting Council amended the ordinance to eliminate even that possibility. That change should have become fully official -- with a second reading (above) -- before the lawsuit was filed (50 days later), and yet that simple bit of paperwork by Staff has yet to be done. What, oh what, could have caused this extraordinary delay?

The City Council had my blog's analysis more than a week before the second closed meeting, and the City Attorney had it slightly longer. Was there a discussion of why such a flawed lawsuit would not be dismissed as being in bad faith?
Irrelevant? I have been told by several lawyers that judges tend to be very "generous" with even outright lies in lawsuits, one saying that falsehoods and deceptions were not just tolerated but to be expected.

Aside: The plaintiffs' inattention to basic details is also demonstrated by the initial filing being rejected because of errors listing the plaintiffs.(foot#6)

----Is the lawsuit about racism or freedom of speech?----

Footnote 2 on ^pg 2 of the Staff Report^ states
"While the lawsuit includes extensive discussion of the racially discriminatory environment of the 1960's during which time the ordinance was adopted, the lawsuit does not claim that the ordinance is unconstitutional because it discriminates based on race or violates plaintiffs' rights to equal protection of the laws. The suit is primarily a First Amendment case. Plaintiffs claim that the ordinance restricting non-resident access unconstitutionally curtails their First Amendment rights to gather in the Nature Preserve in order to protest that the ordinance is racist."
This statement makes no sense. If you read the lawsuit's "^Introduction^" and the "^Further Factual Allegations^", it is all about how racist Palo Alto is and always has been. The public relations campaign by the plaintiffs and allied advocates have been racism, racism, racism.

"Through the grapevine" I have heard that one of the reasons that City Council voted -- in closed session -- to settle was reputational damage, that is, that the plaintiffs would continue to pound Palo Alto in the media as being racist. While many people have learned that "racist" is nothing more than an empty, generic accusation that the Left/Woke hurl at those that disagree with them, there are still many who still see it as a very serious accusation.

Another reason coming through the grapevine supposedly from at least one Councilmember who voted to settle is the threat of astronomical costs if we go to court. With the accusation of racism in play, the plaintiffs' lawyers could demand massive discovery of emails, (electronic) documents, ... Those lawyers might also demand interviews with City officials, city staff, residents ... hoping to find something that could be presented as "racist" in the media, despite its irrelevance to the plaintiffs' legal causes of action. This would cost the plaintiffs nothing -- the lawyers are from a large law firm -- ^Munger, Tolles & Olson LLP^ -- and are working pro bono but may have their fees paid by Palo Alto if we lose in court.

Yes, this sounds crazy, but a cynic would point out that the primary purpose of the legal system is the enrichment of lawyers and that justice is only an occasional, unintended side-effect.

If, as the footnote claims, racial discrimination and equal protection are not part of this lawsuit, why was the ^NAACP^ chosen to be the lead plaintiff?

----Does City Hall understand what they are agreeing to? I don't think so----

When an area is judged subject to free speech protections, it becomes much harder to regulate behavior, and any regulations are subject to strict scrutiny by courts in expensive lawsuits. Recognize that "free speech" has been expanded to cover a very broad range of "expressive activities".

For example, are tourists and residents complaining about being harassed by street performers while they wait in long lines to enter a facility? Many judges favor the "rights" of the harassing performers, saying that the people being harassed should simply leave the line, dismissing that they are giving up on getting into the facility and forfeiting the time already spent waiting in line. Or that the city should hire enough police officers to handle the situation. Oh wait, since it is an "expressive activity", the judges may decide that police officers are not qualified to make a judgment about that activity.

In the Third Cause of Action in the lawsuit, ¶73 (^pg 23^) states "The Park is a public forum. ... It also contains a network of paths that are public thoroughfares." This seems to put the entire Preserve under free-speech jurisprudence, with the hiking and nature trails being given the same status as not just the paved pathways in Rinconada, Mitchell and other Palo Alto urban parks, but of sidewalks and streets. This status would preclude many of the rules that one would expect to be appropriate for a nature trail.

Back to footnote 2 on ^pg 2 of the Staff Report^: "Plaintiffs claim that the ordinance restricting non-resident access unconstitutionally curtails their First Amendment rights to gather in the Nature Preserve in order to protest that the ordinance is racist."
This is a variant of ^Catch-22^ (a paradox). If the non-resident plaintiffs are allowed into the Preserve to protest, then their protest is moot/irrelevant/... To want to be able to protest this, they must be prohibited from entering the Preserve.
What this tells me is that what the plaintiffs want is far, far broader than the very limited motivations that they state in the lawsuit. So what are they trying to sneak by City Hall and residents?

The settlement prohibits Palo Alto from giving preferential treatment to residents except in reservations for the picnic and camping areas. Residents who want to go to the Preserve for other purposes may find themselves turned away after the long drive up there because the Preserve is at its limit. If the increased number of visitors is putting too much wear-and-tear on the Preserve, there will be resistance to lowering the limit because that will mean more residents being turned away.

----Criteria on restrictions on Free Speech----

You will find many different lists of criteria for rules being permissible under free-speech jurisprudence. ^Pg 2 of the Staff Report^ gives a very common set:
1. content-neutral,
2. tailored to serve a significant government interest, and
3. leave open ample alternative channels for communication.

Content-neutral: I have heard no claims that the current rules are not content-neutral.

Significant government interest: Purchasing the land served to protect it from becoming a housing development, and promising a residents-only access policy is reported to have been crucial to getting the support for the bond measure to fund this. Protecting the foothills from development (Green Foothills) has been a government priority in this region for decades, with multiple taxes and bond measures to support this policy. In response to this, the lawsuit states "None of the purported interests advanced by the City as justifications for the residents-only restriction is significant enough ..." (^pg 23^ ¶74).

Alternate channels: In the Berger v. City of Seattle case, the City designated 16 areas for street performers. The Court rejected Berger's claim that the areas were unsuitable or often unavailable for lack of sufficient evidence, but also similarly rejected the City's claim. Since the burden of proof was on the City, the Court decided for Berger on this aspect. Note that they didn't reject this as being too few.

Palo Alto has 35 other parks and at least two plazas -- Lytton and MLK (at City Hall) -- that are used for rallies and demonstrations. Plaintiffs claim that their desire to use the Preserve as the venue for their demonstration is an impermissible restriction. Established law is to the contrary: In the presence of suitable alternatives, one may demand a particular one. In addition, the record of the discussion of this issue demonstrates that the plaintiffs were not lacking in alternative channels of communication.

Historic use is often cited as showing that activities similar to the desired one are already occurring at the venue. However, the plaintiffs provide no evidence that the Preserve was used for demonstrations before the lawsuit was raised. The closest they come are "weddings,other celebrations, and free public music concerts" (^pg 9^ ¶26) and "meetings, weddings, seminars, reunions, recreational programs and other assemblies" (^pg 13^ ¶34).

----Reputational Damage----

While fear of reputational damage is cited as a reason for Palo Alto to settle, what about the risk of reputational damage to the plaintiffs and their lawyers? I have no knowledge in this particular area, so I am thinking simply as a counter-puncher.

ACLU: Most supporters of the ACLU are unaware that their politics have shifted dramatically to the Left in recent years, after a leadership change. The ACLU no longer supports freedom of speech. It does support speech rights for groups and viewpoints its leadership supports, but to be said to support freedom of speech, you must support speech rights for those you disagree with. The issue of racism in this lawsuit could publicize that the ACLU no longer opposes racial discrimination. It has no problem with discrimination against some racial groups -- for example, Asian-Americans apply to Harvard -- while supporting discrimination favoring other racial groups.

As we have repeatedly seen, news about Palo Alto is picked up by the regional media and may get the attention of the national media if some clever writer spots a way to spin it to be click-bait, typically "You wouldn't believe those crazy Californians!" From there, it can become red meat for commentators. The ACLU may not have considered it yet, but imagine one of their leaders being interviewed by Fox News' Tucker Carlson and being asked an improved version of "Why is the ACLU going to court to prevent citizens from voting on a major issue affecting their city, and instead seeking to have the court impose the views of a tiny group on the much larger community? Do you have any qualms that your clients are staging a publicity campaign based upon false charges of racism? Just when did the ACLU decide that democracy was a bad thing?"

I suspect that reputational damage is not an issue for the law firm of ^Munger, Tolles & Olson^. Since it advertises itself as working with the ACLU, I presume it has already had to confront the issue of a client making unsupported claims of racism.

----Summary: So many questions; so few answers----

I see no sign that City Hall has taken the first step in addressing this issue, that of showing an appreciation of the complexities. Do we have leaders who expect to be long gone before the bills become due, or before the proverbial feces hit the rotating blades?

I don't believe that City Hall has given Councilmember anywhere near enough to make an informed decision. And they haven't even started to give the public the information that they need to provide input to Councilmembers.



----Footnotes----
1. Should have had priority over COVID response:
Heading in the lawsuit: "Even this limited attempt to open the Park was met by delay, avoidance, and opposition. By June 2020, more than six months after the PRC had passed its formal recommendation, the Council had still not addressed the issue." ... ^pg 18^ ¶52:
It was scheduled for Council action in April and got bumped by the response to COVID. It was then placed on the agenda for the end of June, when the Council was having two meetings a week, plus extra committee meetings. It got bumped to the first meeting after the August break, where a decision was made.

2. Fine statement after losing 5-2 vote:
"^Palo Alto moves to expand access to 'residents-only' Foothills Park: City Council supports pilot program that would allow nonresidents to buy passes to preserve; looks to send issue to the voters in 2022^".

3. US Constitutional Right of Travel/Movement
This has its basis in the Privileges and Immunities Clause: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."The courts have decided that this includes/implies that states may not impede travel between states. Court decisions have also rejected various state-residency requirements, such as requiring someone to be a resident of the state for at least a year before being eligible for social welfare benefits, such as welfare. The underlying philosophy seems to be to prohibit things that would prevent someone from relocating out of or into a different state, or that would inhibit travel between states for purposes such as business. It does not prohibit the state from having unequal treatment of non-residents in other matters, such as hunting licenses.

4. Berger v. City of Seattle (2009):
If you want to read the decision itself, be aware that the US District Court decision was overturned by a three-judge panel of the Circuit Court, which was appealed to the full Circuit Court where the panel's decision was largely overturned.
For a presentation of the issues, I found the (overturned) ^decision of the panel (2008)^to be much better than the ^final decision (2009)^.

5. My previous blog:
"^Foothills Park Pseudo-Lawsuit: Is the City going to cave-in & defame its residents as "racists"?^, 2020-10-12".

6. Errors in listing the plaintiffs:
If you want to double-check this, go to the ^Public Portal for the Superior Court of California, County of Santa Clara^, enter the lawsuit's Case Number "20CV370681" and go to the "Events" tab, and look down to 9/15: "Clerk Rejection Letter: En# 4930893 RE: Summons - Plaintiff name listed must match as it appears on the complaint and all plaintiff's must be listed.".
This listing is closed because the lawsuit has been moved to the US District Court.


----
An ^abbreviated index by topic and chronologically^ is available.


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----Boilerplate on Commenting----
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I am particularly strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", do not be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.
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Comments

 +   3 people like this
Posted by Alex, a resident of Barron Park,
on Oct 27, 2020 at 2:45 pm

Alex is a registered user.

[[insult]] Surprisingly enough, the ACLU does support free speech! [[insult]]

[[Blogger: Assertion without explanation of the policy statement from the ACLU president announcing the change.]]


 +   8 people like this
Posted by mjh, a resident of College Terrace,
on Oct 27, 2020 at 4:40 pm

mjh is a registered user.

When Foothill Park was acquired it was a spectacular acquisition because at that time public access to the Santa Cruz mountains was limited to the county and state parks. However, since then a plethora of nature preserves within easy reach of Palo Alto have opened up, thanks to the ongoing efforts of the Mid Peninsula Open Space District.

Instead of a hasty knee jerk reaction to this lawsuit, this is an opportunity for the council to take a big step back and take a long hard look at what it would cost going forward to keep Foothill Park open. Especially in light of the $40 million in cuts to the city budget and the impact this has had on city services and the Fire Department.

The question should be, how does this increased cost stack up against our other high priorities and competing needs that have just been severly cut? Can the additional cost to keep it open be justified going forward? Taking into account opening the park to non-residents will likely result in less value for residents with weekend access limited and picnic tables in even higher demand than now.

Also keeping in mind Palo Alto pays to maintain three other nature preserves with unrestricted access, as well as numerous city parks that are enjoyed by our neighbors.


 +   12 people like this
Posted by rita vrhel, a resident of Crescent Park,
on Oct 27, 2020 at 7:34 pm

rita vrhel is a registered user.

Thank you Doug,...excellent as always. I am so upset about the Democratic process, City Council meeting, being side stepped. City Council had a plan, but then the lawsuit, likley waiting in the wings if those who wanted the Preserve open did not win.

And how can one settle a lawsuit and not know or care top share the terms of settlement? This makes no sense, but appears to be one more opportunity for the City Manager, City Attorney and some Staff to continue to "run" Palo Alto with no regard to resident's wishes.

I believe we should fight the lawsuit an sue for "reputational" damages. The City has to stop folding at every lawsuit filed or guess what? more flimsy lawsuits will follow.

Don't get my way; file a lawsuit and the City will fold. Or maybe only when the lawsuit supports their stance in the first place?


 +   9 people like this
Posted by Sunshine, a resident of Barron Park,
on Oct 28, 2020 at 5:01 pm

Sunshine is a registered user.

Excellent article Doug. This lawsuit is stupid. It is an example of yet another frivolous suit to win attention for the plaintiffs.
Perhaps we should just close Foothills Preserve to all until sometime after the pandemic. Now is definitely NOT the time to discuss such a frivolous item. Covid is far more important as it concerns the health of everyone. Once that issue is settled then would be the time to hold an election regarding the demands presented here.
They are using a time-honored tactic of throwing anything they can into the issue until something sticks. There is no racism at issue here.


 +   4 people like this
Posted by Rainer, a resident of Mayfield,
on Oct 28, 2020 at 7:57 pm

Rainer is a registered user.

The pivotal person in the City Administration costing us a lot of money, and much what makes Palo Alto enjoyable, is the City Attorney Counselor, Molly Stump (why do I want to write Trump here?).

Do we have to go to the Ballot Process, to fire her?
Do we have to go the the ballot Process to reverse the sneaky way the City Council Web Link allowed to happen to give up on what a majority of the population (according to many polls) wanted for the Foothill Preserve.

The $50 Million lost in the Hotel President case is in particular aggravating. A threat of a law suit by a developer in particular is hollow. Because as soon there is a law suit between a developer and the Policy Setting entity (the City of Palo Alto) financing goes away. Any Real Estate Lawyer knows this.

That $50M needs to be added to the other large sums lost in the past, some enumerated by Doug Moran, the City lost in the past due to the City Attorney. Web Link

If it would have been up to the City Attorney, we would would have lost Buena Vista as well, as low income housing.

Shame on the City Counselors that the, except for the clear sighted and knowledgeable Lydia Kou, folded to the unprofessional laziness of Molly Stump.

I wonder: is is the citizens of Palo Alto who pay her salary? Or who does?

So instead of the fearful mouse we have now as a City Attorney we should get an outside tiger of a Real Estate Lawyer, who goes for what the City wants, and not what Molly Stump wants: avoiding a law suit at all cost, so that she can continue to sit in her office and do: nothing.



 +   3 people like this
Posted by Douglas Moran, a Palo Alto Online blogger,
on Oct 28, 2020 at 8:10 pm

Douglas Moran is a registered user.

> "Do we have to go to the Ballot Process, to fire her?"

The City Attorney is one of four "Council Appointed Officers" (for search, also use "CAO"), the others being the City Manager, the City Clerk, and the City Auditor (now outsourced).

The Council hires and fires the CAOs and they, in turn, hire and fire the staff that reports to them, although the choice of some high-level managers may be brought before Council.

Council recently conducted the performance reviews for the CAOs.


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