SANTA CRUZ -- The city of Santa Cruz plans to appeal its loss in the Robert Norse free-speech case to the U.S. Supreme Court next month unless a settlement can be reached with the longtime government critic, officials confirmed Thursday.

The city has hired a high-powered Supreme Court expert to file the appeal if an agreement isn't reached with Norse, who filed suit in federal court nearly a decade ago alleging the city violated his First Amendment rights by ejecting him from a 2002 City Council meeting. The 63-year-old activist was arrested after refusing an order to leave the meeting, which city officials said he disrupted by raising a mock Nazi salute.

A rare panel of the 9th U.S. Circuit Court of Appeals ruled unanimously in December that a trial judge should reconsider the case, indicating they believe city officials silenced Norse because they disliked his criticism. The case, which has garnered national attention, has never gone to trial.

City officials have met with Norse and his lawyers recently to negotiate a settlement, one that could lead to a loosening of restrictions on public commentary during council meetings and a financial payout for Norse. But an agreement has been elusive, and council members directed the city attorney in closed session last week to pursue the Supreme Court appeal.

George Kovacevich, an attorney with the city's firm, supports the appeal even though there's a slim chance the high court, which typically hears less than 5 percent of petitions, agrees to take the case. To accept the lower court's decision could mean a costly trial for a case the city has spent $148,000 to defend -- a cost that will grow if the city loses and has to pay Norse's legal fees.

"At least now we have a shot, arguably, albeit a small one," Kovacevich said. "Certain rulings are reversed, and then that would not bind the city up in a trial."

Kovacevich said the city has hired Richard Ruda, former chief counsel of the State and Local Legal Center in Washington, to prepare a writ of petition to the high court. The deadline to file is June 6.

Ruda, whose office is in the tony Washington suburb of Chevy Chase, Md., declined to comment on the case when reached by phone Thursday. He also declined to discuss his previous appearances before the Supreme Court, though his website says he is "uniquely qualified to assist state and municipal attorneys and officials with questions about Supreme Court doctrine, practice and procedure."

The Supreme Court Institute at Georgetown University's Law School, for which Ruda has served as an advisory board member, reports that the Yale University and Harvard Law School graduate has filed briefs with the high court on behalf of state and local governments and conducted practice runs for lawyers preparing arguments before the nation's top justices.

Kovacevich said he didn't have details Thursday on Ruda's fees. He said Ruda has consulted with the city for about a month.

As part of a potential agreement to withdraw his suit, Norse said he expects the council to change its rules regarding public participation -- including expanding a two-minute time limit for general commentary and dispensing with a rule against booing speakers. He has vigorously fought against a gradual tightening of such restrictions, which his speeches to the council, as well as a host of tirades by other gadflies, have engendered.

"I want a clear declaration that people are not disruptive who engage in technical violations, such as not turning in a card to speak, or not facing the City Council when they speak, or if they make a silent gesture from the side of the room," Norse said Thursday.

Mayor Ryan Coonerty, who began enforcing the two-minute rule last year, said he would consider adopting clearer definitions of what constitutes a disruption of council meetings.

But, he said, "I don't think protected First Amendment speech includes disrupting public meetings. Robert is proposing letting people be booed when they speak to their city government. I fundamentally disagree."

Coonerty said a Supreme Court appeal is worth the taxpayers' investment, and the city will have to pay Norse's legal fees if it loses.

"There are costs no matter what," he said. "Ten years later, this case has never been tried in a courtroom."

Norse said he does not support Nazi views and only made the gesture during the 2002 council meeting to protest then-Mayor Christopher Krohn cutting off another speaker. Krohn determined Norse was being disruptive, demanded he leave and ordered his arrest when Norse refused.

After watching a five-minute video clip of the incident, a federal trial judge dismissed Norse's suit in 2007 and a three-judge panel of the 9th Circuit upheld that decision. But a rare en banc panel of the appeals court agreed to rehear the case and revived the suit in December.

A longtime homeless advocate, Norse has needled the council for years, opposing crackdowns on the city's overnight camping ban and panhandling. He criticized the council for placing what he says are controversial matters on its consent agenda and agreeing to discuss those matters only if council members agree to transfer them to the regular part of the meetings.


You be the judge in the Salute vs. the City case. Who is right?