HCN: IS CITY COMMISSION LOOKING TO SETTLE VISUAL ARTISTS' LAWSUIT?

Saint Augustine said, "An unjust law is no law at all." Our Nation's Oldest City's unjust laws criminalize art and music in our historic downtown, a stench in the nostrils of our Nation.

I think the visual artists will prevail, whether in a jury trial or in a global settlement, remembering the sage advice of Yale Law Professor Owen Fiss in his article, "Against Settlement," 93 Yale Law Journal 1073 (1984) here.
Some cases, like Bates v. City of St. Augustine (Bates II) or Brown v. Board of Education, are freighted with so much public interest, that they are best tried, so there is a public record and court decisions. Professor Fiss writes in pertinent part:

I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets. Settlement is for me the civil analogue of plea bargaining: Consent is often coerced; the bargain may be struck by someone without authority; the absence of a trial and judgment renders subsequent judicial involvement troublesome; and although dockets are trimmed, justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised….

JUSTICE RATHER THAN PEACE
The dispute-resolution story makes settlement appear as a perfect sub- stitute for judgment, as we just saw, by trivializing the remedial dimen- sions of a lawsuit, and also by reducing the social function of the lawsuit
to one of resolving private disputes: In that story, settlement appears to achieve exactly the same purpose as judgment-peace between the par- ties-but at considerably less expense to society. The two quarreling neighbors turn to a court in order to resolve their dispute, and society makes courts available because it wants to aid in the achievement of their private ends or to secure the peace.
In my view, however, the purpose of adjudication should be understood in broader terms. Adjudication uses public resources, and employs not strangers chosen by the parties but public officials chosen by a process in which the public participates. These officials, like members of the legisla- tive and executive branches, possess a power that has been defined and conferred by public law, not by private agreement. Their job is not to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes: to interpret those values and to bring reality into accord with them. This duty is not discharged when the parties settle.
In our political system, courts are reactive institutions. They do not search out interpretive occasions, but instead wait for others to bring mat- ters to their attention. They also rely for the most part on others to inves- tigate and present the law and facts. A settlement will thereby deprive a court of the occasion, and perhaps even the ability, to render an interpre- tation. A court cannot proceed (or not proceed very far) in the face of a settlement. To be against settlement is not to urge that parties be "forced" to litigate, since that would interfere with their autonomy and distort the adjudicative process; the parties will be inclined to make the court believe that their bargain is justice. To be against settlement is only to suggest that when the parties settle, society gets less than what appears, and for a price it does not know it is paying. Parties might settle while leaving jus- tice undone. The settlement of a school suit might secure the peace, but not racial equality. Although the parties are prepared to live under the terms they bargained for, and although such peaceful coexistence may be a necessary precondition of justice,3 5 and itself a state of affairs to be val- ued, it is not justice itself. To settle for something means to accept less
than some ideal.
I recognize that judges often announce settlements not with a sense of
frustration or disappointment, as my account of adjudication might sug- gest, but with a sigh of relief. But this sigh should be seen for precisely what it is: It is not a recognition that a job is done, nor an acknowledg- ment that a job need not be done because justice has been secured. It is instead based on another sentiment altogether, namely, that another case has been "moved along," which is true whether or not justice has been done or even needs to be done. Or the sigh might be based on the fact that the agony of judgment has been avoided.

…. To conceive of the civil lawsuit in public terms as America does might be unique. I am willing to assume that no other country-including Japan, Bok's new paragon"'-has a case like Brown v. Board of Educa- tion44 in which the judicial power is used to eradicate the caste structure. I am willing to assume that no other country conceives of law and uses law in quite the way we do. But this should be a source of pride rather than shame. What is unique is not the problem, that we live short of our ideals, but that we alone among the nations of the world seem willing to do something about it. Adjudication American-style is not a reflection of our combativeness but rather a tribute to our inventiveness and perhaps even more to our commitment.


What do you reckon?

Six-month extension to wrap up mediation with artists

January 23, 2017 Government

BRUCE BATES

With the passing of the first deadline for mediation between the four artists who are challenging city ordinances that restrict their use of public spaces, the City of St Augustine reported to Historic City News that the court has approved a six-month extension to wrap up mediation before proceeding to jury trial.

As no settlement was reached in the time allowed, the artists forged ahead with the case. United States District Judge Brian J. Davis ordered the jury trial set for the term commencing on January 2, 2018 at 9:00 a.m. in Courtroom 12-C of the U.S. Courthouse located at 300 North Hogan Street in Jacksonville.

The city says the extension allows the mediation to continue until July of this year. If the parties cannot reach a mediated settlement by that deadline, the case will proceed to trial during January 2018 as previously published by Historic City News.

Per the complaint, the court struck down a version of a city ordinance that had content-based restrictions for artists in 2000. Then, in 2009, a federal judge granted the artists a preliminary injunction against rules that kept visual artists from displaying and selling work in the Plaza.

This is the second time local artists Bruce Bates, Elena Hecht, and Kate Merrick have gone to federal court, as plaintiffs, to obtain an order allowing them to use public places to create, display and sell expressive art like painting, photography, and sculpture. This time they are joined by Helena Sala.

The city says the extension was requested because any mediated settlement will involve legislative action, and thus requires more time than typically might be needed to accomplish a settlement.

City Attorney Isabelle Lopez is not defending the city in this lawsuit, the city is represented by two defense lawyers from the MARKS GRAY law firm in Jacksonville, hired by the insurance trust of the Florida League of Cities.

The city advised local reporters that both sides recognized that expending resources to meet the initial deadlines would distract from the productive mediation efforts.