January 13, 2011
Cal Note: SCTo73906 infraction
Note to reader: This is my personal account of the hearing written shortly afterward from my notes. Much of it is my best attempt at a transcript of what I heard said intermingled with a few clarifying comments. ---Becky Johnson
Santa Cruz, Ca. -- In the appeal of my conviction for singing on Pacific Ave. last January 6th, I thought that singing a few songs in the Free Speech Zone in the middle of the afternoon in my normal, unamplified voice would be protected free speech. I was wrong.
This is a case where the City acted to prevent the disturbance of the sleep of a 31-yr-old man napping in the middle of the day inside his own apartment located on a busy, urban corridor. The City had to have concluded I was guilty in order to send in a City attorney to argue for my prosecution, since the charge was based solely on the complaint of one citizen. I went before a three-judge appeals panel consisting of Judge Paul Burdick, Judge Timothy Volkmann, and Judge Ariadne Symons. Symons had replaced Judge Jeff Almquist, because he could not be expected to rule impartially on his own verdict. Symons is considered impartial.
Representing the People of California was City Attorney Caio Arrellano, paid for by the City Attorney's office. My attorney was Ed Frey. In court, observing the proceedings were Robert Norse of Free Radio Santa Cruz, Steve Pleich, former and future city council candidate, Linda Lemaster, Ailene Smith, Free, and two reporters from City on a Hill Press.
Judge Paul Burdick announced that no recording would be allowed in court "because any such request must be made in writing five days prior to the hearing." I'm not aware of any such rule. I'd always understood that whether to make a recording or not depended on the discretion of the judge. Burdick then announced that they had no such equipment immediately available to make a recording. Robert Norse, jumped up from the audience, and offered to make a personal recording. Burdick quickly denied him.
This mirrored my original trial last April where I HAD gone through the process ahead of time and secured the agreement with the court that an official recording would be made of the proceedings. In that case, Almquist reversed that order and refused to allow any official recording to be made. Refused two motions to make a recording for broadcast purposes and a 2nd recording request to make a personal recording. Almquist made sure that NO recording of the proceedings would be made.
During our attempts to make a settled statement on my case (since a transcript was NOT an option thanks to Almquist!) , Almquist insisted that citizen complainant, Sean Reilly, had identified me as the person who he saw singing. He didn't. He testified that "she has pretty hair" and that "I saw her running around with a videocamera so I knew she was one of the group."
When Ed Frey asked Sean Reilly under oath whether he had been physically annoyed by my singing, he answered "No." Yet Almquist ruled that I was guilty "BECAUSE Reilly had been physically annoyed" when he couldn't take his nap. Almquist never ruled on whether I had been singing for a too prolonged period of time. No wonder.
Almquist had heard six eyewitnesses testify to impeach Reilly's testimony that "we had been playing since 11AM" a period of "about four hours." Ed Frey had introduced hard copy of a notice HUFF had placed on Indybay on January 5th stating that our demo would not begin until 1:30PM. Lloyd Ellis testified that he saw Joe Schultz hand a pot of soup to Robert Norse around 1:30PM and no one else in our group was there, and no one was singing. Tony Kuspa had testified that he arrived at 1:45PM and the only person there from our group at that time was Robert Norse. I arrived later. Coral Brune and Free (his legal name) testified that they arrived together at 2PM and I was not yet there. Robert "Blindbear" Facer testified that he arrived shortly after 2PM and I was not yet there. All of us testified that our music was not especially loud and certainly not unreasonable.
There is NO WAY that Almquist could not have had reasonable doubt about the statements that Reilly made in court that "the same people had been playing music since 11AM". Reilly also testified that he "heard a guitar". No one in our group played a guitar at any point. Yet Almquist had found me guilty, believing Reilly over 7 eyewitnesses, and fined me $250 for having made "an unreasonably disturbing noise."
Now I was appealing to a higher court.
Ariadne Symons led the panel by claiming that "the panel has carefully considered" all the briefs, cases cited, and "had done their own research." Frey asked for a tentative decision and Symons said "no."
Frey began by pointing out that in the City's brief, at one point Arrellano had quoted the ordinance with semicolons in the appropriate place, but that later on, when trying to make a different point, quoted it differently.
"The City Attorney can't have it both ways,"Frey argued. "A plain reading of the ordinance with proper placement of punctuation shows that unreasonable noises must be physically disturbing and physically annoying to persons of ordinary sensitivity."
"The point I'm making is that ordinance is so vague that the prosecutor varies from one version to another in the brief in front of you. We don't have any evidence a person of ordinary sensitiveness was disturbed."
Judge Paul Burdick was the first to respond. "Your notion that if someone sleeps during the day they are not a person of ordinary sensitiveness--well--we reject that. They ARE a person of ordinary sensitiveness. We had considerable pre-trial discussion on this."
Ed Frey continued. "The court must consider that Ms. Johnson had to understand the ordinance in order to follow it. The police officer walked by five minutes earlier and did nothing. When asked to say how loud is too loud, she refused to say."
Ariadne Symons then spoke. "Mr. Reilly testified that the other residents were disturbed. THEY were unreasonably disturbed. He was not the only one." Symons was willing to believe the imagined testimony of a neighbor who didn't testify over that of 7 witnesses who all testified that yes, we sang, but it wasn't three or four hours, it wasn't continuous, it wasn't prolonged, and it wasn't done in any attempt to disturb any tenant from napping."
Judge Timothy Volkmann spoke for the first time. "What is it you intend to argue? Reasonableness? Location? Time of day?"
"The entire context," Frey responded.
Volkmann: "The singers were in an area where they could potentially affect people where they live."
Frey: " I could argue a whole line of cases which support the concept that if you can't go to the marketplace in your own town and, to quote one of our forefathers, "make ourselves heard above the din" then, we don't have any freedom of speech at all." And I ask all three of you justices that if you can't sing on a public sidewalk on Pacific Ave., then where is it that you CAN go and sing songs that protest political injustice?"
Ariadne Symon was reassuring. "Of course singing hasn't been outlawed on Pacific Ave. Perhaps if they walked down the street and didn't sing in just one place, there wouldn't be a problem. Of course, the way Pacific Ave. is designed, there are offices and residences on the second floor up and down the avenue."
Frey: "A strong line of cases argue that a person sleeping in their own home can be protected from commercial intrusion into their privacy, but they are not protected against intrusion by political or religious contacts. Besides my client was making reasonable noise, not blaring over a microphone."
"Are there no cases which found that a restriction on singing is valid?" Symons asked, looking like the cat that ate the canary. "Magden vs. Womens Health Clinic ordered protesters outside an abortion clinic from "singing, whistling, shouting...."
Frey: "Your honor, we didn't have an operating room here. This was on a busy, shopping mall in the middle of the afternoon. I ask again, where else are they to go and express themselves except on the mall? Where is it that we are allowed to express our first amendment rights?"
"Certainly you have your first amendment rights to freedom of speech, peaceable assembly, and the right to redress government grievances. But we must also balance that versus the right of the residents to the quiet enjoyment of one's home," Burdick explained. "It's well understood that the entire 2nd story is occupied by people by people who live there; people like Ms. Johnson."
"In Ire vs Boon in PC 415, which is a misdemeanor for disturbing the peace, the court ruled that the noise section wasn't written to prohibit all loud noises. Only those that met one of two conditions. It must either be speech that causes a clear and present danger of imminent violence---such as shouting "fire" in a crowded theater and there is no fire. Clearly this was not the case with Ms. Johnson."
"The second condition is that the noise must be purported to be used as a guise to disturb and annoy a person. There is no evidence before the court to suggest that Ms. Johnson was singing in an attempt to annoy or harm Mr. Reilly."
"That is not the law we are considering here today," Symons coldly responded.
Frey: "So the State of California has to comply with this strict test of whether they get to say a noise is unreasonably disturbing or not and the City of Santa Cruz just gets to get away with it?"
Without prompting, Judge Timothy Volkmann addressed an issue not made. "We're not complaining about the CONTENT of her speech. But the right of an individual to speak has to be balanced against the right of an individual to the quiet enjoyment of their home."
I shook my head at this statement by Volkmann. How could Sean Reilly be disturbed for "Three and a half to four hours" by my singing and NOT hear any of the lyrics? Officer Lauren Schoenfield had had the same amnesia problem. Neither of them 'heard' any of the lyrics to our songs. How could that be reasonable? Either they heard us and were annoyed or didn't hear us loud enough to even distinguish any words. But in this court, neither Reilly nor Schoenfield hear any of our lyrics to this case was ONLY about how loud or long our NOISE was.
But Frey was prepared for this. "Brown clearly cover loud noise, even shouting. However, it requires proof of malice which is missing here. "
Ignoring this argument, Burdick insisted "We're obligated to construe the limitations of the applicant. In my view, this does not infringe on freedom of speech as long as it does not impinge..."
"It's a sad day if you can't go to marketplace in your town and speak because you can not be sure that you speech will not be physically annoying to anyone," Frey concluded, clearly angered.
City Attorney Caio Arrellano then took the podium. "About the Kovac case. In affirming the conviction for noise in the case of amplified sound, the court rejected that the appellant had no obligation to consider a citizens right to the quiet repose in his own home. Sorry about the semi-colon..."
"We don't need to hear anything more on that matter," Symons reassured him.
Arrellano continued. "There is some confusion in Inrie vs Brown and its use of 'loud and unreasonable noise.' A city can condemn noise that is "harsh" or "unreasonable" to persons of ordinary sensitiveness."
Symons: "Our panel has spent a great deal of discussion and independent research for this very important case. The issues involves are likewise very important, and involve our basic freedoms. Any limitation of 1st amendment rights to freedom of speech must be specific and narrowly tailored. If we were speaking of an area that was purely commercial that would be one thing. Certainly Pacific Ave. is one of those regular areas where we engage in commerce. But it is not purely commercial. Actually, it is residential as well."
"In Ferndale 2008, a federal case involving a completely commercial intersection, but where a longterm resident lived in that area as well. The court found we have both a right and an obligation to protect both the interests of the residents and the freedoms of speech so that a person does not have a fundamental right to speak in any place, at any time, or in any manner."
"Madison in Geader vs Rockford, their noise ordinance was upheld claiming that speech, even political speech is not limitless in a place where people live. It is not a pure right, but a tempered right. As in this case,where the record shows that they were singing for three hours straight, the trial court found that the speech was prolonged as it was in this case. "
"You say ask where it is that we can have our rights? Well perhaps if the singers had traveled and not sung in one place for three hours. Or if they chose to sing in a City park away from residences, then we would have a different set of facts to consider, in that potential case."
"So I the panel finds that the ordinance is constitutional as applied. The appeal is denied."
Frey: "I have one additional important question. Can this panel certify this case to appeal it to the next court of appeal?"
"You've exhausted your appeal, " Volkkmann added.
"We rarely do that," Symons answered. I was surprised too. I was under the impression that in the case of an infraction, I was allowed only one level of appeal by law. But Ed had found that this was not necessarily the case.
"We'll take that matter under advisement and rule on it later," Burdick concluded.