City hires big city attorney to fight Nazi-Salute Case

NOTE TO READER: Robert Norse and his attorney, Kate Wells, have always been willing to settle this case for reasonable changes in the Rules of Decorum at City Council meetings and, as the years have dragged by, and for legal costs to continue fighting it have added up, attorney's fees and costs. Today is no different than any other day. But the City, under the leadership of John Barisone, appears to know no limits on the minutia on which they'll litigate or to the nth degree they will drag it out. It should need no explaining that the legal fees they will run up benefit themselves. Below is today's SENTINEL article by J.M. Brown dated May 6, 2011. ---ed

NOTE TO READER: There is an online poll running with the article, so be sure to log on and vote.
At this time 305 people have "voted" and Norse is slightly ahead of City Council with 50.49% of the vote.
City Council 48.85% and Other 0.66% (2 votes). --Becky Johnson of HUFF

Santa Cruz to appeal Nazi salute case to Supreme Court: Lawyers still seeking settlement with Robert Norse

By J.M. BROWN

Posted: 05/05/2011 11:00:00 PM PDT

found online at: http://www.santacruzsentinel.com/ci_18006114

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.

ONLINE POLL:

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

Santa Cruz City Council
Robert Norse
Other:

9th Circuit Court reverses itself in Nazi Salute case

SENTINEL photo by Schmuel Thaler with the following caption "(Sleeping Ban opponent Robert Norse has been targeting Bookshop Santa Cruz in his protests)" possibly a reference to Norse's recent conviction for singing a song on a busy sidewalk near Bookshop Santa Cruz. Norse was convicted of "unreasonably disturbing noise" and was fined $250.

NOTE TO READER: As the videographer of the snippet of the City Council meeting where Robert Norse issued his "Nazi" salute, I know a thing or two about what else happened at that meeting. And unlike the statement issued by Mayor Ryan Coonerty in today's SENTINEL, Norse in no way orchestrated a disruption of the meeting. Nor can Norse be held accountable for the reactions and over-reactions of offended City Councilmembers. The City Attorney's office recently claimed they'd spent $114,000.00 defending Christopher Krohn, Tim Fitzmaurice, and Scott Kennedy from Norse's lawsuit. And that was BEFORE City Attorney George Kovacevich went to Southern California to have his hat handed to him on a platter by the en banc panel of the 9th Circuit Court. After over eight years, the court has ruled that Norse can have his day in court after all. ---Becky Johnson, Editor

http://www.santacruzsentinel.com/localnews/ci_16872299

Appellate panel rules Norse suit can go forward: Lower court will have to reconsider Nazi salute case

By J.M. BROWN

Posted: 12/16/2010 01:30:01 AM PST

SANTA CRUZ -- An 11-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday unanimously agreed a trial judge should reconsider Robert Norse's free-speech lawsuit against the city of Santa Cruz.

Norse, a longtime City Council agitator and advocate for the rights of homeless people, claims his free speech protections were violated when he was ejected from a City Council meeting in 2002 after raising a Nazi salute. Norse was arrested for disrupting the meeting and refusing to leave, although the charges were later dropped.

Norse said he abhors the Nazis' views and only used the gesture to protest then-Mayor Christopher Krohn cutting off a speaker critical of the council. The city, which has spent more than $100,000 fighting Norse, has since argued the salute was part of an organized attempt to disrupt the meeting.

After watching a five-minute clip of the salute and arrest, 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 in June and reinstated Norse's suit Wednesday.

The ruling said U.S. District Court Judge Ronald Whyte in San Jose should have heard more evidence after giving Norse's lawyers just two days to prepare for a hearing that would have determined whether the case would go forward. The en banc panel's ruling indicated that city officials kicked Norse out because they disliked his views.

However, the en banc panel dismissed the arresting officer, Sgt. Loran "Butch" Baker, from the suit against city officials. The ruling said Baker followed proper procedures when Krohn complained Norse was disrupting the meeting and refused orders to leave.

The city's current mayor, Ryan Coonerty, said Norse was properly removed from the meeting not because of the Nazi salute, but because of the overall disturbance he caused.

"There is a pattern of disruptive behavior that is at issue here," Coonerty said. "And we hope the court in San Jose will recognize that we can't have a functioning democratic processes when you have somebody who is constantly disrupting the meeting."

Norse was pleased with the ruling, saying, "Any reasonable person looking at the video cannot conclude there was a disruption. There is an arrogance on behalf of the council in their determination to intimidate their critics. It's not about the Nazi salute. It's about the public's ability to engage in ordinary free speech behavior."

Norse, who lives in Felton and Santa Cruz, still frequently attends council meetings, calling for a repeal of the overnight camping ban and measures taken by the council in recent years against aggressive panhandling.

The Associated Press contributed to this report.

9th Circuit Court hears arguments on "Nazi Salute" case

Photo of Robert Norse speaking at a City Council meeting on a different occasion dressed in his bathrobe with his Teddy Bear, which he wears in deference to homeless people who must do things out of doors, housed people would choose to do in a bathrobe.


by Becky Johnson
July 15, 2009

Santa Cruz, Ca. --- What Robert Norse called "a fascist salute" and what Councilmember Tim Fitzmaurice called "a Nazi Salute" has wended its way for a second time to the 9th Circuit Court of Appeals in San Francisco, CA.

Here is the 40-minute audio statements by Attorneys for the plaintiff, David Beauvais of Berkeley, Ca. and his co-counsel, Attorney Kate Wells of Santa Cruz, Ca. City Attorney, George Kovacevich appears on behalf of the City of Santa Cruz.

The two tapes referred to are the normal City Council video that is made at each meeting. There were two of these. One for the meeting in 2002 where Mayor Christopher Krohn ejected Robert Norse for a brief, silent, hand gesture. The second meeting in 2004, Mayor Scott Kennedy ejected and arrested Robert Norse for "whispering." I was at both meetings and filmed with my own camera. The justices also saw my footage which shows that the Sgt. of Arms, Loran "Butchie" Baker saw the "Nazi Salute" directly and took no action to stop Norse's behavior nor to arrest or eject him, although he had the power to do so. The tape also shows Baker telling Norse he doesn't know what charge he is being arrested under, and he goes and talks to the City Attorney who listens and then responds and then Baker returns to Norse to tell him he is being arrested for misdemeanor "disrupting a public meeting".

"We've already spent more time on this case than we did with the Exxon Valdez." --Circuit Court Justice in her conclusions on this "Nazi Salute" case.

Robert Norse who was born Robert Kahn is Jewish.

http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000003646

Designed Out of Existence:

Or why the Santa Cruz
Medical Marijuana ordinance
doesn't work

by Becky Johnson
22 Jun 2004

MARCH 22 2009 UPDATE:

While I predicted that no marijuana distribution center would open under this ordinance, five years after it was passed, Lisa Molyneaux of Boulder Creek, Ca. successfully opened Greenway. She had to receive a variance to open it in the location in Harvey West Industrial Park which is too near a park, according to this ordinance. About a year later, another distribution center also opened. HUFF has passed a resolution to reduce the distance buffer from parks, schools, micro-breweries, etc. from 600 feet to 300 ft., allow one dispensary to open in the downtown area, and remove the requirement that all staff must be patients themselves.

Despite City Measure C passing in 1994, despite State Prop 215 passing in 1996, Despite a local medical marijuana ordinance passed in 2000, and besides a 9th circuit court decision that found that the drug laws are not meant to apply to medical uses for cannabis, no distribution center has been open in the City of Santa Cruz since 2000. Critics say the law is fatally flawed and must be reformed before any distribution centers can open. This article explains why.

Santa Cruz, Ca. -- It is 2004, eight years after the passage of Proposition 215, the Medical Marijuana Compassionate use Act. An elderly woman walks with a cane down near the levee. She carries cash with her. Her hip joint aches with every movement, her knees also pain her and both her ankles are swollen. She meets her connection and they both look furtively around before they exchange cash for a small plastic baggy of the only medication she has found that helps her to endure her pain without knocking her into a stuporous non-productive state.

Why can't this woman go into a clinic or health care center and pick up her medication? Why must she sneak around furtively in some back alley getting questionable quality cannabis when the citizens of Santa Cruz voted overwhelmingly (73% in favor) of legalizing the use of medical marijuana?

In 2000, Both WAMM( Women and Men's Alliance for Medical Marijuana) and the Santa Cruz Cannabis Pharmaceuticals were operating with nearly an open-door policy in the downtown area of Santa Cruz. An earlier club, the Santa Cruz Cannabis Buyers Club had operated since 1994 under a city advisory measure which allowed the use under a medical necessity defense, and as an experiment to see if people could benefit from the use of marijuana for a variety of medical conditions. The City of Santa Cruz, along with San Francisco, Oakland, Berkeley, and San Jose had all publicly declared their open support for the possession , use, and presumably distribution of medical marijuana to those who say they are helped by it. Mike and Valerie Corral are from the Santa Cruz area. WAMM serves 250 patients but has a waiting list five time that long. Certainly Santa Cruz is a very marijuana friendly area politically.

CITY COUNCIL PASSES A MEDICAL MARIJUANA ORDINANCE

All this came to a screeching halt when, not the Feds, but the progressive liberal city councilmembers passed an Municipal Ordinance Chapt. 6.90 to regulate the dispensing of medical marijuana to patients. Upon passage, the Santa Cruz Cannabis Pharmaceuticals had to close their location in a business district on Seabright Ave.

They relocated to another location, only to have the Santa Cruz City Council meet again, and on the word of City Councilmember Michael Hernandez, declared the new location illegal as the non-profit organization a block away was "intended to be a school." The Club never opened and those involved lost thousands of dollars they had invested. WAMM continued to operate, but outside of the City Limits. WAMM never got a use permit from the City . No new dispensary has opened since.

So what was in this ordinance anyway?

Lots and lots of restrictions. Rather than conform with the spirit of Proposition 215 which treats medical marijuana users as patients treating illnesses, the ordinance was written with a decidedly criminal law stance. The dispensary could not be located where other pharmacists, clinics, and professional offices are located. The dispensary must be in the industrial zone of the city or in its agrarian outskirts. All staff members are required by law to be medical marijuana patients, but they are prohibited from taking their medication while on the premises.

They are prohibited by the ordinance from making a profit (though may charge to cover reasonable expenses) and must regularly submit their books to inspection by the authorities to ensure no one is profiting. (a side note: Valerie Corral has never presented her books to any public authority to obtain their permission to continue operation). The facility may not open near a school. It may not open near a micro-brewery either. "Why is that?" mused Mike Torpey of Santa Cruz. "They don't they want the competition?"

When Kate Wells, the attorney for the Santa Cruz Cannabis Pharmaceuticals went to the planning board, they insisted on 14 sets of architectural drawings of their plans to remodel a former restaurant for a dispensary. To open, a dispensary must get permission from the planning department and the zoning department as well as conform to the city ordinance restrictions.

One provision even allowed for any neighbor's objection to prevent the issuance of a use permit. With the costs of renting a place with first, last, and security deposits, remodeling and designing for wheelchair access, the risk of complying with all the myriad restrictions only to have them nixed by a NIMBYesque neighbor at the finish line greatly reduces the viability of such an enterprise succeeding before it ever opens.

"It sounds like the police department wrote this rather than a medical adviser," said Kate Wells, now in retirement from the medical marijuana business. "The whole tone of the ordinance treats the person like a criminal suspect rather than what he really is, a sick person taking a medication that gives him/her relief."

She points out there is provision which requires the proprietor to prevent loitering within 50 feet of the premises. "How am I going to do that?" she asks. "Am I supposed to go up to some guy and tell him he can't stand on a public sidewalk 50 feet away from the borders of my business?"

We are all used to laws which prevent discrimination against clients. But this law extends to the members in order "to assure that association members, be they qualified patients, primary caregivers or cultivators, are not discriminated against, and do not themselves discriminate, on the basis of race, color, creed, religion, national origin, ancestry, disability, marital status, sex, gender, sexual orientation, height, weight or physical characteristic." So if one client called another client a "fatso" the use permit could be yanked?

The ordinance also requires that the association not discriminate against those who have no means to pay. What other private business or service REQUIRES that the service be provided free of charge to those who can't afford it?

Any member of the organization is prohibited from obtaining service from any other provider-regardless of whether they are traveling or the kind of assistance they need is not provided by the local organization. This is unnecessary micro-management that cannot be enforced by the provider organization. But a violation can result in the use permit being revoked. "As an attorney, and having consulted with another attorney who specializes in obtaining permits through planning and zoning departments, I would advise against any client of mine investing in opening a medical marijuana dispensary in the City of Santa Cruz because the financial risks are too great, and the assurances of continued operation are not there." She says that parts of the language are too fuzzy and vague for them to mean anything. "Basically they could turn you down just because they don't like you."

She speaks from personal experience here.

BARISONE-DESIGNED OUT OF EXISTENCE

Perhaps the biggest problem is that it's impossible to obtain the permit before seeking a site. To obtain the permit, you need to have already secured the site. To secure the site, you would need to have already made a substantial investment. "No one is going to be able to make that kind of financial investment, jump through all those hoops, if the balance rests on getting the okay of some cranky neighbor."

City Attorney John Barisone who drafted the ordinance during Mayor Keith Sugar's tenure often bends to the will of what the police want. In 2000, that would have been Police Chief Steve Belcher. Smart money says it was Belcher who pushed for many of the restrictions in a backroom setting where all other marijuana advocates were excluded. Corral later profusely thanked the council for passing the ordinance. Kate Wells had a different take. "I think the worst part of the ordinance is the way it treats people. They are not treating medical marijuana users like sick patients receiving treatments. Instead they are still treating them like criminals."

"People who are obtaining marijuana due to their severe pain or other debilitating condition should not be further victimized by the city by being made to lurk in the dark in industrial areas to get their medicine. They should be able to walk into the facility, head held high, with no sign of shame or embarrassment. The city sets the tone for the community and the city ordinance enables those bigots who oppose medical marijuana to feel comfortable in their bigotry. The ordinance actually invites these bigots to come forward and complain. If the city made it clear that it would stand behind the providers and the patients, these bigots would not have any voice."

The ordinance also requires that "to facilitate the lawful and reasonable law enforcement investigations called for by this section, the medical marijuana provider association shall provide the city's police department with a twenty-four-hour contact phone number which can be called to verify the status of the person under investigation." So the provider must pay for a 24-hr on call staffer who has been cleared to be privy to confidential records but must reveal them to any police officer who wishes to call night or day.

Will anyone jump through this many hoops and open a distribution center in Santa Cruz? Don't hold your breath.