Tuesday, November 23, 2010

Commissioner Kim Baskett Verdict in Facer-Norse Song Trial

Citizen complainant, Sean Reilly, on April 27, 2010 outside of the Santa Cruz County building, awaiting one of dozens of court appearances he made as a witness against Robert Norse, Robert "Blindbear" Facer, and blog editor, Becky Johnson. Photo by Becky Johnson.

Transcript of the Baskett Sentencing Hearing

Verdict by Commissioner Kim Baskett

Robert Facer, Robert Norse v. City of Santa Cruz

re: unreasonably disturbing noise citation January 6, 2010

Tuesday Sept 21 2010

(transcribed from audio by Robert Norse and Becky Johnson)

We are here today for the ruling in the Robert Facer, Robert Norse matter in which they've been cited under a municipal code of the city of Santa Cruz for violation of the noise ordinance. And 9.36.020 is the unreasonably disturbing noise ordinance.

The citation was signed by Mr. Reilly, who's present in court. Mr. Norse is present in court. Mr. Facer, represented by counsel, Ed Frey, is present in court. I wanted to assure all of you that I've given the case law as well as the facts a great deal of consideration. And I've spent a long time personally looking at these issues. I know that it's really important to all of you that these issues be resolved once and for all.

Present now in the courtroom is the city attorney as well, Mr. Arellano, and also Mr. Frey's assistant, Ray Glock-Grueneich.

All right. So, one of the most essential points being made by the defense for himself, Mr. Norse and Mr. Frey for his client Mr. Facer is that the ordinance is so vague that it defies an ordinary person's ability to understand what is required under the law.

I spent a long time looking at noise ordinances across the United States and in various communities,

and looking at the legal authorities. And I find that specifically this ordinance is not void for vagueness because of the terms that are being used unreasonably disturbing and using the ordinary sensitiveness or person with ordinary sensitiveness that I find that it is not void for vagueness

What I want to say specifically is that in my hearing of the testimony I find that there is an unwillingness, there was an unwillingness, I think, to accept anything but a decibel reading as a criteria-- something certain-- That there is no requirement anywhere that simply because there (?) to take a decibel reading that governmental entities have to default to a decibel reading.

They have the ability to decide whether they're going to use a descriptive ordinance or a combination of decibel readings, or all decibel readings. And they have it within their purview to decide how they will do their enforcement. So just because there is a physical means of measuring noise, it does not dictate--specifically according to case law—that they must use a decibel meter.

This is next thing that I want to say and point out to people that are present in the courtroom that have been so interested in the free speech rights of those who are singing and playing on the mall, and which has risen to an issue of Constitutional importance in this case because these particular singers were protesting the political environment in the City of Santa Cruz, especially the downtown area on Pacific Garden Mall. That their first amendment free speech rights were seemingly implicated or curtailed. What appeared to them to be erratic enforcement of this statute.

They mentioned that after this ticket was enforced against them, they felt that their free speech rights were chilled they didn't want to go down and engage in that activity on the mall—no singing behavior--they were afraid they were going to get a second citation.

I have to say to you straightforwardly that the evidence before me at trial was that before this trial was heard, that activity was engaged in again. So these particular defendants, it seemed to me when I heard the evidence, didn't have...it didn't have a chilling effect on their ability to go ahead and to perform the same activity on the mall.

I want to say and point out that the First Amendment to the Constitution, the United States constitution as well as the California Constitution does provide freedom of speech, but it's not curtailed. And the effort that I made to point out the Koekaa case which is already in our record with the case cites-- I won't belabor it here, because I have other cases that I need to hear--was that what I wanted to hear argument about was to what extent does a person wishing to engage in their free speech right get to dictate the manner of conveying their message.

And what I did find specifically is you don't get the best most ideal way of conveying your message as long as there are alternative channels left open to you. And I find specifically that day there were channels left open to still have the message with regard to the plight of the homeless left open to people who were willing to hear.

I also want to say that I'm convinced that in great part the effort to send that message that day was to reach someone inside Bookshop Santa Cruz. And thus necessarily it should have been clear in the minds of the protesters that they were going to be reaching residents. And frankly it's not disputed that the government has an interest in protecting the quiet repose of persons in their homes.

And so that's the juxtaposition of the tension here. To what extent does Mr. Reilly have the ability to say “enough is enough”? And I'm finding that the case is made here. And that both Mr. Facer and Mr. Norse, because they were engaged as members of HUFF in planning this demonstration are guilty of violating the quiet repose of this gentleman.

I was asked to consider that a day sleeper is not a person of ordinary sensitiveness, and I'm not deciding this case on the basis of the fact that he was trying to fall asleep. We must remember that I heard that he kept his windows closed; he turned on his air; he put on white noise. It is not a requirement, I find, in the case law that a person in their home has to be subject to free speech. In other words, there are a number of cases that regulate that protected activity, your ability to speak out on political issues. But the person in their home doesn't have to be subject to that.

So those--the proximity to the residents--is something that I took into consideration. And I did pay heed to the case which said that you couldn't keep peddlers--or whatever you want to term them. People who wanted to ring the doorbell—and convey their ideas about religion etc. to the individual homes. And the court in that particular case referred to by Mr. Norse, said no it is sufficient for the homeowner to put on the front of their residence a warning that they don't want to be disturbed.

We don't need to curtail the ability of the person who is going door to door to talk about the religious beliefs. We don't need to curtail their freedom.

But in this circumstance, you have in this building 124 single resident occupancies. This building has been here for decades— I myself have been here running a business since 1976 Pacific Ave. That building predated our building. It did get damaged during the earthquake and after the earthquake there was a huge homeless problem. And our homeless person has probably doubled and tripled since then.

But I find and -- said in during trial--that I find it highly ironic that people who are protecting the rights of those who cannot sleep at night because they are disturbed constantly by ordinances that basically require them to move along are thinking that it's okay to disturb people who are in low or very low income housing.

Only124 units, and it's one of the few handful of units in this county for people of low or very low-income housing.

So I'm deciding in this circumstance...those are some of the reasons that I'm taking to articulate to you that there was no vagueness, that these folks anticipated that they would likely get cited, and that was the testimony before me. There was no political speech going on because Mr. Kuspa had already decided “good grief, we're singing let it snow; I'm not even singing with the group and I'm going to start looking at the table”.

They were not asked...they were not told to stop all forms of educating the public. They could still pamphlet, interview, take signatures on a petition. Their tabling process was fine.

It was just that they couldn't continue to make noise which frankly, folks, included musical instruments and amplification, even though I heard testimony that it wasn't over-loud. I could not credit that testimony. The evidence revealed to me that that noise was heard from some distance away by various different accounts. And really this gentleman only lives about 20' up and over from where the singing was taking place.

So. Therefore I am finding both defendants guilty because they caused, permitted, suffered, allowed, that to occur by their organization, participation of their organization in the event.

I note that in this courtroom, the fine is $445. And I often listen to persons wishing to make an explanation

and allow volunteer service to be conducted...I don't want to necessarily curtail that opportunity if there's someone that wishes to speak about that.

Last time I offered volunteer service in a case such as this, it was declined because that couldn't be recouped if the decision of the bench officer—myself here—was overturned on appeal, which...I'm anticipating this definitely will be appealed. That's why I, we have the recording system.

Is there any expression from your client, Mr. Frey, or from you, Mr. Norse, about the fine amount?

Frey: No, your honor, we will pay the fine.

Baskett: And you, Mr. Norse?

Norse: In a previous case, which was also an infraction ... she understood that potentially required community service, not on a unreasonably disturbing noise charge, but on something else, She was willing to suspend that pending an appeal, which was eventually lost. And I did community service. I wonder if that's a possibility in this case.

Baskett: You're asking the court to render judgment and suspend imposition of the fine until the resolution of the appeal?

Norse: Right I want to do community service, cause that's what I eventually did. She sentenced me to community service and then said she suspended that pending appeal. That's what eventually happened.

Baskett: Okay, they might have a better way to keep track of that upstairs. They take notes and if you look at their minute orders, it's really clear. We don't What I would suggest is that I will go ahead and grant your request and consider that it's one for suspending imposition of the fine and then if indeed the appeal is lost, then you can just come in and ask for volunteer service. And then you'll have thirty days to go sign up. Is that...?

Norse: That's fine.

Baskett: All right. So that will be ordered. And I see Mr. Frey, I see you're asking your client something. Did you want me to waive..?

Frey: Yes, we want that same treatment, your honor.

Baskett: Okay. So what we'll do is we'll impose the fine of $445. And then we'll suspend the fine, imposition, until such time as the appeal is decided. And then that at that time, once the court gets the resolution on the appeal, the fine will be imposed. You'll have some time frame in which to come back and just ask for a conversion to volunteer service.

Norse: We'll also, ask your honor.if I had anything to say regarding the fine itself.

Baskett: Okay

Norse: Your honor may recall during the testimony that though you ruled that in fact you felt that we could anticipate that there might be concerns about the residents—and in fact, we'd never had such concerns before in terms of them being presented to us They weren't presented to us in this case. In other words, no one informed us until the moment when Officer Schoenfield arrived. So we didn't really have... The only advance warning we had was her arrival and then we stopped what we were doing. So given that as a consideration, we weren't intending to disturb anyone. And in fact, I think actually we tried to be relatively sensitive to that as I pointed out in my testimony You disagreed with that, perhaps. But that would be one of my reasons for asking that either the fine be reduced or waived, whatever you eel would be appropriate.

Baskett: Okay, well I understand what you're saying. I'm specifically finding, and I thought I made it clear that the testimony that I heard was testimony from Mr. Facer that there was discussion at HUFF, that you actually believed that you were going to be cited when you were out there.

I think that you intended that to occur by the activity that occurred when the officer approached. To wit, when the officer approached, what I heard was a cacophony of noise And I heard testimony from Free that it even occasioned someone to open up windows and shouting that ensued. In other words, my impression from your own witnesses' testimony was that the noise level increased dramatically upon the contact with the cop...officer. Nevertheless, be that as it may, I will reduce the fine amounts to $250 apiece, suspend their imposition until the conclusion of the appeal. Thirty days after the appeal is finalized, the fines will be due subject to either one of your or both coming into court asking for volunteer service, at which time, I guarantee you, I will allow.

Norse: Thanks

Baskett: So then this matter is completed, I appreciate all of your time.