Retaliatory City of St. Augustine Beach public comment restriction proposal is unconstitutional;

Freedom lovers, come speak out at St. Augustine Beach City Hall, 6 PM, April 3, 2017.

-----Original Message-----
From: Ed Slavin
To: jpwilson ; mroyle
Sent: Sun, Apr 2, 2017 9:13 pm
Subject: Retaliatory City of St. Augustine Beach public comment restriction proposal is unconstitutional; Request No. 2017-167 re; Public comment procedure research, drafts, and marked-up proposal showing all changes --

Dear Messrs. Royle and Wilson:

A. The First Amendment requires "breathing space." Democracy is not a "spectator sport."  In the words of The Washington Post's new motto, "Democracy dies in darkness." You are, respectively, the City Manager and City Attorney of the City of St. Augustine Beach.  Your SAB meeting public comment proposal, as amended, would violate the First, Ninth and Fourteenth Amendments to the United States Constitution.  It is abhorrent.  It is "viewpoint discrimination," just like SAB's aborted plan to file all police officers because ten reported alleged misconduct.  The proposal is misguided and one-sided.  It is unscholarly and unseemly.  It is expressly directed against some six people who say things Commissioners don't want to hear.  This is irrefragable, by binding oral admissions of Commissioner Sherman Gary Snodgrass and Mayor Richard Burtt O'Brien. The resolution is contaminated by retaliatory anti-dissent animus. Please cease and desist from all efforts to chill citizens' free speech rights.  Our twin itty-bitty Northeast Florida cities' namesake, Saint Augustine, said, "An unjust law is no law at all."

B. Please respond in writing by 4 PM on Monday April 3, 2017, the day of the 6 PM monthly meeting where you have placed this on the agenda:

1. There are no markings of any kind on your latest flawed proposal governing public comment in government meetings.  There are no underlines and no strikeouts. There is nothing indicating what is currently in effect, what was in the earlier draft, and what is new language.  Please send me by e-mail ASAP an electronic copy, complete with underlines, cross-outs and metadata, pursuant to F.S. 119 and F.S. 119.0171 and my request no 2017-167 of March 30, 2017.

2.  St. Augustine Beach Commissioners and residents anticipated, and we previously discussed, your complying with the standard of care and performing actual legal and factual research -- where is it?  Please provide all responsive documents from your offices, homes, cars and City Hall.  If none exists, please explain why.  

3.  Please perform your "due diligence," comply with the applicable standard of care, perform legal and factual research and kindly provide copies of cases, law review articles. Attorney General opinions and a spreadsheet comparing procedures elsewhere.  You will kindly recall the discussion on the need for comparisons of other jurisdictions.  Without adequate comparisons to or "lessons learned" from other cities and counties, are we "flying blind" without a parachute?   The draft ignores the requirement that the First Amendment must have "breathing space," as the U.S. Supreme Court has repeatedly and emphatically held.  See David L, Hudson, Jr., "First Amendment Freedoms Need Breathing Space," Newseum Institute (2016)  http://www.newseuminstitute.org/2016/12/22/first-amendment-freedoms-need-breathing-space/

4.  Columnist Steve Cottrell wrote an emphatic March 27, 2017 St. Augustine Record column opposing your scheme, inter alia listing other states' laws.  Mr. Cottrell is a former California mountain town elected official.  His words deserve inclusion in the administrative record. Please provide the column as a supplement to the agenda packet, with handouts for residents.

5. On March 22, 2017 Folio Weekly dropped a proverbial "brickbat" on your  proposal.  Please include it a part of the public record.  Please also include disclosure of all ex parte contacts with staff and Commissioners.  

6.  Unadorned by any legal analysis or critical thinking, your latest flawed proposal leaves in place several objectionable provisions in current rules, including one barring City employees from appearing as "spectators" at Commission meetings without permission of the City Manager or Police Chief.  Please expressly reject this unconstitutional rule as a First Amendment violation.   Do you agree that democracy is not a spectator sport?

7.  "Petitions" require respect from our leaders and are empowered by the First Amendment Petition Clause.  

The Supreme Court has described the right to petition as "among the most precious of the liberties safeguarded by the Bill of Rights" and "intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press." United Mine Workers, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967). It is "cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of expression." McDonald v. Smith, 472 U.S. at 482.

White v. Lee, 227 F.3d 1214 (9th Cir. 2000).  

But section 7 of your latest proposal disrespects our Petition Clause rights.  It actually gives the City Manager unbridled discretion to determine whether he will permit Commissioners to discuss a citizen petition.  Why?  Is this an unconstitutional "standardless delegation?"  See Cafe Erotica v. St. Johns County, 360 F.3d 1274 (11th Cir. 2004).  The City Manager has a legal, ethical and moral duty to share petitions with Commissioners, without interference, allowing Commissioners to discuss and debate them, without exercising quasi-veto power outside the powers conferred in the City Charter.  Drafting and submitting unexplained language that would allow the CIty Manager to receive a petition and veto public discussion of it is contrary to the genius of a free people.  As our cities' patron, Saint Augustine himself said, "An unjust law is no law at all."

8. Where is the City of St. Augustine Beach's legal research and sophisticated analysis on anything involving public comment?  Where is its research on First Amendment law? Where is its research on "viewpoint discrimination?"  On the "void for vagueness" doctrine?  It appears that Section 10 of your latest proposal is void for vagueness, replete with undefined terms that could invoke criminal penalties as a trap for the unwary and tool of oppresion, including cliches by the carload, trite tropes and judgmental sophistry:  "Irrelevant repetitive personal impertinent or slanderous"; "otherwise disrupting a meeting"; "terminology or gestures that cause a disruptive environment for public officials in the discharge of their duties or cause a disruptive environment hostile to the participation of other members of the public";  and "shouting, noisemaking, issuing threats, harassing or intimidating members of the public, interfering with the duties of elected or appointed officials and city staff during a public meeting, or otherwise interrupting or disrupting the proceedings."    Your latest feisty, fustian, Faustian proposed resolution is freighted with animus, is void for vagueness, and is both unprofessional and unconstitutional.   See Papachristou v. City of Jacksonville,   456 U.S. 156  (1972), holding Jacksonville Ordinance Code 26-57 unconstitutional.  It "provided at the time of these arrests and convictions as follows 'Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.'"  As United States Court of Appeals for the Eleventh Circuit Judges Julie Carnes and William Pryor explained last year: 

The vagueness doctrine states that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). As the decisions of the Supreme Court make clear, the vagueness doctrine applies only to laws that regulate private conduct—laws that define crimes, e.g., City of Chicago v. Morales, 527 U.S. 41 (1999); Kolender v. Lawson, 461 U.S. 352 (1983); Colautti v. Franklin, 439 U.S. 379 (1979); Smith v. Goguen, 415 U.S. 566 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Winters v. New York, 333 U.S. 507 (1948); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Cline v. Frink Dairy Co., 274 U.S. 445 (1927); United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216 (1914); laws that fix sentences, e.g., Johnson v. United States, 135 S. Ct. 2551 (2015); laws that restrict speech, e.g., FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964); Cramp v. Bd. of Pub. Instruction of Orange Cty., 368 U.S. 278 (1961); and laws that regulate businesses, e.g., A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233 (1925). 

The vagueness doctrine reflects two “connected but discrete” concerns: notice and arbitrary enforcement. Fox Television Stations, 132 S. Ct. at 2317. Notice means that a law does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Arbitrary enforcement means that a law leaves government actors “free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 402–03 (1966).  

United States v. Matchett,  802 F.3d 1185 (11th Cir. 2015), en banc reh'g denied (2016) Judge Julie Carnes and William Pryor conncurence slip op. at 9-10:, http://media.ca11.uscourts.gov/opinions/pub/files/201410396.ord.pdf, ;

9. Your latest proposal lacks grounding in law or facts.  It is unadorned by any reasoned, mature understanding and appreciation of the purpose of city meetings.  It is anti-historical and antithetical to the democratic values of the Founders of our Nation. It disrespects our veterans who defended our freedoms.  It lacks gravitas, self-respect and self-insight.  It offers no legitimate governmental purpose.  It brandishes disrespect for our First, Ninth and Fourteenth Amendments.  It flies in the face of th First Amendment and Florida's Declaration of Rights and laws commanding our right to open government and public comment.   Not a "working instrument of government," this latest void for vagueness proposal appears to be a meaningless "collection of English words."  United States v. Dotterweich, 320 U.S. 277 (1943).  Messrs. Wilson and Royle, this is not one of your better efforts.  As my grandmother would say, "drop the oyster and leave the wharf."

10. Your latest proposal would repeal sub silentio undefined unknown unknowable undefined portions of the City's 1989, 2002, 2005 and 2016 resolutions on meeting procedures.  It would do so without thought, without justification or excuse, violating citizens' reliance interest on settled procedures and our right to fair notice of what the rules are. Failing to discuss what you repeal, your effort is unadorned by explanations.  The few rote incantations in the stray "whereas" clauses do not support the proposal.   Also, do I understand correctly that a resolution "does not have the force and effect of law," in the words of Ms. Isabelle Lopez, St. Augustine City Attorney)?  Please explain.

11. Your latest proposal does not direct the City Clerk to summarize and include public comment in her minutes. Why are public comments no longer being summarized in minutes? Who decided to omit them, and why?  What research led to this ukase?  Please answer on the record.  In fact, the minutes of the very last meeting record no thoughts from the "half dozen people" whom Commissioner Sherman Gary Snodgrass held up to obloquy, ridicule and whistleblower-shaming, as if he still were clothed with the power of a  nuclear powerplant utility HR manager extirpating differing engineering views, hiding behind corporate law firms.  The irony is striking.  Did anyone notice that St. Augustine Beach City Hall omitted the substance of public comment from minutes on a proposal to restrict public moment rights?  Do you have any idea how badly this looks in they eyes of the citizenry?  How ironic and insulting.

12. Please withdraw this unAmerican proposal, a disorganized mess that is an invitation to federal civil rights investigations and litigation.  It is void for vagueness and a violation of the First, Ninth and Fourteenth Amendments, a stench in the nostrils of our Nation, one whose only effect is to:

A.  Threaten to criminalize dissent, with a vague provision that dissenters "may be removed for disrupting a public assembly pursuant to chapter 871. 01"; see Celli v. City of St. Augustine, 214 F. Supp. 2d 1255 (M.D. Fla. 2000)($23,500 damages upheld for four hour First Amendment violation in suppressing "St. Aug Dog" newspaper on St. George Street);  Laird v. Tatum, 408 U.S. 1, 12-13 (1972) ("[G]overnmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights."); American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 402 (1950) ("[T]he fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect `discouragements' undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions, or taxes.").  What is the effect of F.S. 768.695 on any F.S. 871.01 police report of protected activity resulting in exclusion by the Mayor of St. Augustine Beach from a public meeting?  Have you researched it?B. Chill, coerce and intimidate citizens' right to speak their minds and have government officials conduct themselves in a civil, courteous, decorous fashion, without fear or favor of Mayor O'Brien and other developers, FPL or political factions like the St. Augustine Beach Civic Association.

C.  Increase mistrust in government when the City of St. Augustine Beach has attacked free speech, and Mayor Richard O'Brien testified that Police Chief Robert Hardwick told him to seek an injunction against citizen Thomas Fr. Reynolds, Jr., an effort that was rejected by Circuit Court Judge Howard O'McGillin at a December 7, 2016 hearing. 

D.  Attempt to divert attention from questions about possible fraud, waste, abuse, misfeasance, malfeasance, nonfeasance and mismanagement.  What is Mayor O'Brien trying to conceal but his own family business property's alleged water pollution crimes and other unethical, illegal or wasteful practices in St. Augustine Beach?

Thank you.

With kindest regards, I am,

Sincerely yours,

Ed Slavin

904-377-4998

www.cleanupcityofstaugustine.blogspot.com

www.edslavin.com

-----Original Message-----
From: Jim Wilson <jpwilson@cityofsab.org>
To: Ed Slavin <easlavin@aol.com>
Sent: Fri, Mar 31, 2017 2:05 pm
Subject: Re: Request No. 2017-167: Public comment procedure research, drafts, and marked-up proposal showing all changes

The only draft is on the commission agenda for Monday's meeting.  Otherwise, there are no documents responsive to your request.  

---

From: Ed Slavin <easlavin@aol.com>
Sent: Friday, March 31, 2017 10:35:32 AM
To: Jim Wilson; Max Royle
Cc: Comm Kostka; thomasfreynolds@yahoo.com
Subject: Request No. 2017-167: Public comment procedure research, drafts, and marked-up proposal showing all changes

 

Dear Messrs. Wilson and Royle: 

Please send me all all City of St. Augustine Beach public comment procedure research, drafts, and marked-up proposals showing the existence and origin of all proposed changes in the proposal.  

Please include a spreadsheet of procedures elsewhere and documents on Florida League of Cities contacts, documents and suggestions.  Please place all of this information on the City's website.
Thank you.

With kindest regards, I am,

Sincerely yours,

Ed Slavin

904-377-4998

www.cleanupcityofstaugustine.blogspot.com

www.edslavin.com