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MRSC In Focus › Council/Commission Advisor November 2009
 
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MRSC has joined with Carl Neu, Director of the Center for the Future of Local Governance, P. Stephen DiJulio, Attorney, Foster Pepper PLLC, and Ann Macfarlane, Professional Registered Parliamentarian, Jurassic Parliament, to bring you the "Council/Commission Advisor." The Council/Commission Advisor will feature a new article each month with timely information and advice you can use.*


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Council Meeting Conduct and Citizen Rights under the First Amendment

November 2009

By Steve DiJulio, Attorney
Foster Pepper PLLC

A Nazi salute, and other disruptive behavior, prompted the Mayor of the City of Santa Cruz, California to eject a citizen from the City Council chambers. This 2002 incident did not stop the citizen. In 2004, he again attended a Santa Cruz City Council meeting, this time engaging in a “parade” about the Council chambers protesting certain City Council actions. Again, the citizen was removed. Believing his First Amendment rights had been violated by the Mayor and Council’s actions, he sued the City.1 But he lost.

The decision in the Santa Cruz case is a recent example of situations in which citizen’s claim the “right” to speak before a city or county council or board of county commissioners. That claimed right arises out of the protections in both the federal and state constitutions (commonly referred to as “First Amendment” or “free speech” rights).2

While the First Amendment’s guarantee of the freedom of expression is strong, it is not absolute. Over the years, three categories of government property or activities have been distinguished in order to delineate a government’s ability to limit public expression. Those categories are:

  • the traditional public forum;
  • a designated public forum;
  • and, a nonpublic forum.3

A traditional public forum is property that has long been devoted to assembly and debate such as a street corner or a public park. A designated public forum is an area or time that the government purposefully has provided to the public for expressive activity. A nonpublic forum is not “by tradition or designation a forum for public communication.”4 This column focuses on the common public comment period at meetings as a “designated public forum,” as provided by many municipal governing bodies. Additionally, the column addresses those portions of public meetings that are nonpublic forums.

Designated Public Forum

A common example of a designated public forum is the Bothell City Council’s regular agenda spot for “visitors:”

During this portion of the meeting, the Mayor will invite citizens to talk with the Council about topics that are not scheduled for public testimony on the evening’s agenda. Speakers will limit their presentation to three minutes, unless a longer period is permitted by Council. No speaker may convey or donate his or her time for speaking to another speaker. If many people wish to speak to a particular issue, Council may limit the total amount of time dedicated to that single issue.5

Similarly, the Thurston County Board of Commissioners has adopted Guidelines for Public Comments at its regular public meetings as follows:

  • Speakers are limited to a total of three minutes to address the Board. No exceptions are made unless prior approval of the Board has been obtained.
  • Meeting attendees cannot “donate” their speaking time to another person unless prior approval has been obtained.
  • The Board reserves the right to restrict a person’s opportunity to address the meeting for good cause consistent with the purpose of these guidelines.

The Thurston County guidelines also include specific examples of inappropriate comments (e.g., comments that are inflammatory, hateful, defamatory or discriminatory). The examples from Bothell and Thurston County are common. Many governing bodies (councils) maintain such rules for a “designated public forum” such as a public comment period at their regular meetings. And, issues seldom arise in the application of those rules to speakers at public meetings. However, there are occasional conflicts between a council and citizens whose conduct may be viewed as disruptive to that council.

Discretion to Presiding Officer

In the Santa Cruz case, the Ninth Circuit Court of Appeals (the court that reviews cases decided by the federal courts in Washington) repeated the well-settled law that “gives great discretion to presiding officers in enforcing reasonable rules for the orderly conduct of meetings.” The court further acknowledged its long recognition that First Amendment rights of expression are more limited during a meeting than in a public forum (such as a street corner).6 In an earlier case, the Ninth Circuit stated that a city council “does not violate the First Amendment when it restricts public speakers to the subject at hand,” and that a chair of a meeting may stop a speaker “if his speech becomes irrelevant or repetitious.”7 In the Santa Cruz case, the court found that the City elected officials did not violate the citizen’s constitutional rights when they evicted the citizen from the City Council chambers.

Another federal court found similarly when the Mayor of Key West, Florida had a citizen removed from a City Commission meeting because the citizen failed to speak on the item presented on the agenda, and was disruptive to the meeting. The trial court held that the Mayor had violated the citizen’s constitutional rights and awarded the citizen damages. The Court of Appeals reversed. The appellate court found that the Mayor had not acted based upon the citizen’s comment, but because of the citizen’s disruptive behavior, possible threat of violence, and the disrespectful questioning of the Mayor’s authority.8

Time Limits

In another recent case, the City of Aurora, Illinois, was sued for limiting the time made available at a Council meeting to a business owner. The business owner wanted to protest delays in a City public works project that had impacted negatively the owner’s business. In rejecting the claim, the court found, as other courts have regularly determined, that a time limit for public participation at a council meeting is a reasonable time, place and manner restriction. It is narrowly tailored and serves a significant interest.9 Time limits serve “a significant government interest in conserving time and in ensuring that others ha[ve] an opportunity to speak.”10

Nonpublic Forum

Not all council meetings, and not all parts of council meetings, are designated public forums. In fact most of a council meeting agenda is set aside as nonpublic forums for discussions among the members of legislative authority (and staff, exclusively). Certainly, public hearings and public comment periods are designated public forums, subject to the limitations discussed in the above section. However, the working portion of a regular council meeting and workshops, are nonpublic forums. This is also discussed in the case involving the City of Aurora, Illinois. A further challenge was brought in that case when the Mayor refused to recognize the business owner and refused him an opportunity to speak at one of the Council’s study sessions. The court noted that the specific meeting was to allow city council members to discuss matters among themselves, as well as with specific parties to a proposed agreement. Those other parties had been specifically invited by the Council to speak.

Because the city did not allow for public participation at the meeting, and because the only parties allowed to speak, other than council members, were invited by the city council, the…meeting was a non public forum.11

This issue also arises from time to time when a council invites certain parties to participate in portions of a meeting, including executive sessions, and excludes general public discussion of the topic. Again, this is within the discretion of the council, and within its ability to designate time, place and manner restrictions on government communication. As one court noted: “Meetings of a public body do not become free-for-alls simply because the body goes beyond what one member of the public believes (even correctly) to be the body’s proper purview”.12

Summary

A city or county governing body has a significant government interest in effectively conducting its business. Consequently, the typical first amendment concern about “content-oriented control of speech cannot be imported into the Council chambers intact.13 A speaker may not be stopped from speaking because the moderator disagrees with the speaker’s viewpoint. But, the presiding officer (e.g., Mayor or Chair of the Board) may certainly stop a speaker if the speech becomes irrelevant, repetitious, or disruptive, including exceeding limits previously established by the council for public comment. And, the presiding officer can remind the speaker that there always remains the opportunity for a citizen to submit written comment to the council.

Of course, consistent enforcement of a council rule of procedure will serve well in the face of challenges to the exercise of those rules. A record of consistent management of the rules (such as adhering to the three minute limitation) will provide a city or county with a foundation for demonstrating that its conduct is not discriminatory and non-content based in the face of a claim of First Amendment violations.



1 Norse v. City of Santa Cruz, __F.3d__, 2009 WL 3582694 (9th Cir., November 3, 2009).

2 Of course, First Amendment rights extend beyond speech (e.g., religion, press, assembly).

3 Ark. Educ. Television Comm’n. v. Forbes, 523 U.S. 666, 677-78, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998).

4 Perry Educ. Ass’n. v. Perry Local Educator’s Assn., 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 1024 (1983).

5 See Bothell City Council Protocol Manual at 46 (4/17/07).

6 White v. City of Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990).

7 Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266 (9th Cir. 1995).

8 Jones v. Heyman, 888 F.2d 1328 (11th Cir., 1989).

9 La Rana Enterprises v. City of Aurora, 630 F.Supp. 2d 912 (N.D. Illinois, June 24, 2009).

10 Wright v. Anthony, 733 F.2d 575, 577 (8th Cir., 1984) (congressman’s enforcement of 5-minute rule at public hearing on social security reform).

11 La Rana Enterprises, citing Ark. Educ. Television Comm’n., 523 U.S. at 679.

12 Kindt v. Santa Monica Rent Control Bd., 67 F.3d at 272.

13 White v. City of Norwalk, 900 F.2d at 1425.


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P. Stephen DiJulio, a partner at Foster Pepper & Shefelman PLLC, focuses on litigation involving state and local governments, and land use and environmental law. Particular experience includes representation of jurisdictions on eminent domain, utilities (water, wastewater, storm water, solid waste systems), local improvement districts, facility siting and contractor litigation. More.

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Carl Neu, author and consultant, is recognized nationally as an authority on, and an experienced practitioner of, the theory and application of governance and leadership to city councils and county boards, local government managers, and community leaders. More.

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Ann G. Macfarlane is a Professional Registered Parliamentarian. She created Jurassic Parliament to make parliamentary procedure easy to learn and memorable. She provides training on leadership, meeting management, parliamentary procedure and organizational development across the U.S.

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*The Articles appearing in the "Council/Commission" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research and Services Center.

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