Wednesday, June 25, 2008

BUT THEN SINCE IT IS NOT THEIR MONEY THEY ARE SPENDING, BUT THE TAXPAYERS, CAN WE EXPECT THEM TO BE SMART

Judge Ben Euresti will have the honor of deciding the constitutionality of the city ordinances I claim to be impermissible prior restraint or void for vagueness. At the end of this piece I have copied the entire ordinance as it relates to conduct in the event anyone wants to read the entire thing.

Before I get into the parts which I believe to violate the Texas Constitution, I want to discuss the issue of disorderly conduct. This is an area wherein Jim Goza really needs to sit Pat Almighty down and give him a hard lesson in the law. The rule actually says: "disrupt the orderly conduct of business by the commission."

The city either needs to include a definition within the ordinance as to what "disrupt orderly business" means or adopt the legal definition for "disorderly conduct." What Jim Goza fails to understand is the difference between punishing speech which leads to disorderly conduct, and prohibiting speech in advance which could lead to disorderly conduct.

Article I, section 8 of the Texas Constitution, provides: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege, and no law shall ever be passed curtailing the liberty of speech or of the press."
The city can shut someone down if their speech tends to lead to disorderly conduct. They simply cannot prohibit specific speech in advance.

The two relevant parts of the legal definition for disorderly conduct are as follows:

§ 42.01. DISORDERLY CONDUCT.

(a) A person commits an offense if he intentionally or knowingly:
(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

The key word in both is AND. It is not enough to use abusive language - language has to also tend to incite an immediate breach of the piece. The City either needs to define "disrupt orderly business" or adopt the legal definition of disorderly conduct. Otherwise Pat Almighty can make the standard his personal random and arbitrary tool for silencing speech. This will not only get the city sued, but Pat Almighty personally for violating the speaker’s right to speak.

There is also an interesting oddity in the ordinance. The ordinance provides for speakers to give written statements to be included in the official record, if they so choose. This is fine. My question is, can the written statement be stricken because it addresses Pat Almighty or a commissioners directly?

Another interesting oddity is the appearance of two conflicting provisions related to exhibits used by people making presentation to the City Commission.

c. Placards, banners, or signs are not be permitted in the commission chambers or in any other room in which the city commission conducts a meeting. Included in this prohibition are various hats, caps, visors, and t-shirts, which may represent sentiments as alluded to, regarding placards, banners and/or signs.

d. Exhibits, displays, and visual aids used in connection with presentations to the city commission, are permitted

My question is, does the City Commission consider words of their citizens to be presentations? If so then it would seem to me that I could bring a poster with pictures of potholes for examples, and use it as an exhibit to demonstrate the incompetence of the Public Works Department when it comes to repairs. Is this what they intended or is it yet another example of a poorly drafted ordinance?

By previous post I discussed why the subject ordinances are unconstitutional. In Texas prior restraint is absolutely barred. When preparing the lawsuit it occurred to me that the judge may not even have to enjoin the city from enforcement. It seems on technical grounds the judge can find that the self-executing provision within Article I, Section 29 already makes it a legal nullity and that it does not exist in the first instance, and therefore no injunction is needed. This would be a very powerful ruling in favor of Article I, Section 29.

For now I am challenging 2 sections: "f. All remarks and questions shall be made to the mayor and city commission as a whole, and not to individual commission members." This is a clear statement prohibiting speech. It is silly beyond comprehension. In substantive effect what is the difference between. "Pat Almighty I think you are a two bit bully," and "why is this City Commission doing nothing about the fact Pat Almighty is a two bit bully?" The latter addresses the commission as a whole. The difference is a thin skinned mayor city commission acting like children, who are prepared to use taxpayers money to defend their childlike conduct.

I am also challenging the language from (2)(d) which is as follows: "The mayor has the responsibility and duty to rule a speaker out of order if the comments made are of a personal nature, or in any other manner disrupt the orderly conduct of business by the commission."

I already discussed the disorderly conduct problem. Again the ordinance provides for a direct prohibition of a type language before it occurs. This is prior restraint and unconstitutional. Secondly, what does personal mean? It is so vague that the city is sure to get in trouble with Pat Almighty making the decision.

In my mind personal would be, "have you ever cheated on your wife mayor?" It has nothing to do with city business. But his conduct as mayor has everything to do with city business. So is a comment - "why are you a two-bit bully in the manner in which you conduct these meetings?" personal or to his professional conduct as mayor. Regardless of what personal means - it is still prior restraint and unconstitutional in Texas.

Smart money would have the City Commission suspend these provisions after advice of counsel at the next City Commission meeting. Smart money would have them accept my offer to abate the lawsuit, subject to the provisions being suspended, until the ordinance can be rewritten in a fashion which does not offend the Texas Constitution. But then since it is not their money they are spending, but the taxpayers, can we expect them to be smart.

Sec. 2-26. Meetings and agendas

(d) Public input during meetings.

(1) Conduct.

a. Conversations between or among audience members should be conducted outside the meeting room. Attendees should refrain from conversations while commission is in session.

b. Cell phones. Attendees must refrain from the operation and use of cellular telephones, pagers, etc. or any mechanical devices that may disrupt city commission proceedings.

c. Placards, banners, or signs are not be permitted in the commission chambers or in any other room in which the city commission conducts a meeting. Included in this prohibition are various hats, caps, visors, and t-shirts, which may represent sentiments as alluded to, regarding placards, banners and/or signs.

d. Exhibits, displays, and visual aids used in connection with presentations to the city commission, are permitted.

e. Only city commission members and city staff may approach the dais. If a handout needs to be presented to the commission, it should be given to the city secretary (or her staff), who will make the distribution. It is preferable that the item to be distributed be given to the city secretary prior to meeting time. A copy of the item should be made available for the city secretary's official record.

f. All remarks and questions shall be made to the mayor and city commission as a whole, and not to individual commission members.

(2) Public comment.

a. Any person who wishes to address the city commission must register with the city secretary 15 minutes prior to the start of any regularly scheduled commission meeting by submitting a completed public comment form. This form must be used by citizens and filled out completely in order to address the city commission.

b. In accordance with the Texas Open Meetings Act, the commission cannot take action on or discuss any subject brought up during public comment. However, the mayor, or any member of the city commission, may add the issue to a future commission agenda or refer it to the proper city department for action. Commission members shall be allowed to respond to comments when they deem it necessary.

c. The total public comment portion of the agenda shall be limited to 15 minutes. Groups coming to address the commission must select a representative in order to conserve speaking time and reduce repetitive or redundant comments. A majority vote/consensus of commission may extend this time.

Should any person wish to address the city commission regarding a particular agenda item, he must wait until the appropriate agenda item is called and read by the city secretary. At this point, the mayor may acknowledge the request for commentary or question.

Once acknowledged by the mayor, each person shall come to the designated microphone, and state his name and address and restrict his/her comments to the subject being announced. The mayor or city commission may allow the speaker to exceed the three-minute time limit if the information presented is of value to the discussion and does not unduly prolong the meeting. As deemed necessary, a majority of the commission may allow a speaker to continue after the mayor has announced the end of the speaker's time.

d. If a speaker's comments will be longer than three minutes, the commission encourages that written remarks be prepared and provided to each member through the city secretary, with one copy made available to the city secretary for her official record.

The mayor has the responsibility and duty to rule a speaker out of order if the comments made are of a personal nature, or in any other manner disrupt the orderly conduct of business by the commission.

If the mayor does not act promptly, any member of the city commission may require the mayor to immediately rule the speaker out of order.

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