Foothills Park Referendum: Considerations

My three previous blogs critiqued the lawsuit seeking to overturn the residents-only access policy for Foothills Park.(foot#1) Here I will explain various aspects and questions that I have been seeing.(foot#2)

—-Background—-

This section is to provide a summary for those who haven’t been following this issue and for answers to basic questions.

A proposal to have a pilot program to allow a limited amount of non-resident access was scheduled for City Council consideration last spring, but the demands of responding to COVID-19 caused that hearing to be postponed several times. On August 3, Council decided that the decision should be decided by the voters at the first opportunity: the municipal election of 2022. The Council also approved the pilot program if it were revenue-neutral. The advocates for the pilot had provided no budget or proposed source of funding, claiming that they expected only minimal costs, contrary to what Staff testimony indicated.(foot#3) The Council had just completed long, contentious deliberations and decisions on how to cut the budget, with the current Council majority pushing two-thirds of the cuts in services, especially teen programs, and moving forward on most capital projects (“Concrete over people”).

Filing details: The lawsuit was submitted on September 15 but paperwork defects resulted in the official filing date of September 23 in Santa Clara county. Because the lawsuit makes US Constitutional claims, it was moved to the US District Court on October 15 and assigned a case number of 5:20-cv-07251-EJD.

The plaintiffs are two Palo Alto residents and 8 other individuals. The NAACP (National Association of Colored People) of San Jose/Silicon Valley became the lead plaintiff. Co-counsels are the ACLU (American Civil Liberty Union) of Northern California and ^ Munger, Tolles & Olson, LLP^.

Council decision: In October, City Council had several closed sessions discussing the litigation. Such confidential discussions are permitted under California’s Brown Act (Open Government), but with the provision that the various portions of those discussions be publicly revealed when confidentiality is no longer warranted. The results of these closed meetings were formalized in a Staff Report laying out an ordinance to make the changes to the existing Foothills Park ordinance needed to satisfy one of the major demands of the plaintiffs. This was approved — with minor changes — during the public November 2 Council meeting. Council members Kou and Tanaka voted against these changes.(foot#4) The ordinance became official on November 16 when Council passed the “second reading”.

The ^ Settlement proposal^ is a modest improvement over the lawsuit. For example, the lawsuit seeks to prohibit all enforcement of the ordinance covering Foothills Park (^ page 26^, line 9) which would not only have allowed people to remain indefinitely in the Park — permanent and semi-permanent encampments — but would also prevent enforcement of various safety regulations, especially wildfire safety — no wood fires except in permitted locations, no smoking on the trails. This was reinforced by prohibiting placing any restrictions on non-residents by law or by regulation (^ page 26^, line 14-15). I don’t know whether this was utterly careless drafting by the plaintiffs, or was the result of the City negotiating that capability back into the ordinance.

While both the plaintiffs and the City have approved the settlement, there are two remaining steps. First, that the referendum does not get enough signatures to qualify for the ballot. Second, that a judge issues a permanent injunction against the City of Palo Alto in this regard. I not aware of any discussion on whether s/he might refuse. For example, the injunction would be stripping the rights of voters to make normal decisions, not just on admittance, but on admission fees and policies on reservations of facilities. On fees, the plaintiffs have dictated that residents fees cannot be given a discount of more than 25% off non-resident fees. Residents’ priority for reservations exists only during the first 25% of the reservation period. For example, if reservations for the campground could be made up to 24 weeks in advance, the residents-only period would be limited to the first 6 weeks.

Referendum timeline: An ordinance can be overturned by a referendum. The petition for that referendum needs to have valid signatures of 2581 registered Palo Alto voters — 6% of the registered voters in the last general municipal election — and must be submitted within 30 days of the final approval of the ordinance. If the City Clerk certifies the petition, an election on it must be held within 88 days unless the City Council repeals the ordinance.(foot#5)

—-The Lawsuit—-

The lawsuit (^ text^) has three parts:
1. Introduction and its statement of facts.
2. Causes of Action.
3. Prayer for Relief: What the plaintiffs are asking the Court to order.

Lawsuit section 1 (^ pp. 21-26^) states that the access limitations were implemented for racist reasons and their continuation is racist. It claims the limitations are segregation (Figure 7, ^ page 15^) despite no evidence that anyone has been denied access on a racial basis and on-going evidence that Palo Alto residents of all races are admitted.

The apparent reasoning behind this section includes:
• Guilt by association: It argues that there was racism in the region and in the US, so therefore racism was and is responsible for the ordinance.
• Collective guilt: That the actions of any member(s) of a race represent everyone of that race, even those others oppose those actions.
• Inter-generational Guilt That the attitudes and actions of members of a race many years ago reflect those of that race today. This lawsuit cites situations from the 1920s as relevant.
This reasoning arises first from “conflict theory” which was a basis of Marxism, which claimed that there were substantially static groups — where those groups were the workers and the capitalists — that are in a struggle for power and dominance. In current social theories, socioeconomic status is replaced by race, sex, and gender, for example, in “Critical Race Theory” and “Anti-racism”. Prominent presentations of Anti-racism claim that Whites are inherently and irredeemably racist. With the quasi-religious belief that struggles for power between the identity groups dominate society, perceiving racism in every decision comes easily. And ignoring evidence to the contrary is essential.(foot#6)
Off-topic: Discussion of those theories. They are mentioned here only for those seeking to understand the perspectives of the plaintiffs.

Lawsuit section 2 (^ pp 21-26^) (Causes of Action) is unrelated to the accusations of racism in the previous section. It makes claims of unconstitutional violations of
• California right to travel,
• freedom of speech, and
• freedom of assembly.

These legal claims have only a few, trivial legal citations and few fuzzy examples of what is meant.

Lawsuit section 3: (^ pg 26^): What the plaintiffs are asking the Court to order.
While giving a token nod to the Causes of Action, it would not permit what most people would consider legitimate and normal prohibitions, for example, holding a large assembly in an off-trail sensitive-habitat area.

—-Discussion—-

This is my own summary of what I am hearing from people opposing the settlement. Interestingly, one signature-gatherer for the referendum reported that multiple people were saying that they supported opening the Park, but not as a result of being bullied with spurious charges of racism.

–Lack of trust in what the public was being told–

We were told that the lawsuit would be expensive and that we would likely lose. One of those costs would be our lawyers. Another would be extensive legal discovery by the plaintiff. But this lawsuit concerned Constitutional law and would be mostly decided on legal precedent, not discoverable facts.

We were told that we would likely have to pay the plaintiffs’ legal costs which would likely be very expensive. There has been no explanation of the basis on which the City decided his likelihood. Although the details of the risk-assessment might warrant being confidential, a presentation of the basic facts underlying that assessment would have help residents decide whether it was reasonable or we were once again being failed by our attorneys.
Aside: Most of the attorneys listed on the lawsuit are associates at the prominent law firm and none of their bios list experience in Constitutional law, so we could wind up paying for their training in this area.

We were told that pursuing this lawsuit would result in negative publicity that would be harmful to Palo Alto and its residents. When I did a web search on “palo alto (racist OR racism)”, I found references to this lawsuit among the top results. The plaintiffs have run an aggressive media campaign to brand Palo Alto as racist, with articles in regional news outlets being republished by outlets throughout the country. Augmenting this is the ACLU chapter sending its press releases to other chapters that then send them to their local news outlets. By these actions, the plaintiffs and the ACLU have ensured a long-lasting association between Palo Alto and racism on the Internet. Question: How would yet another round of press releases and media interviews denouncing Palo Alto as racist make the situation worse??

We were told that we would almost certainly lose the lawsuit on First Amendment grounds. Yet when I read the court decisions commonly cited as declaring the park in question to be subject to freedom of speech and assembly, the enumeration of those qualifications did not match Foothills Park in the slightest. the descriptions of what qualified those parks to be were vastly different from Foothills Park. For example:
“In places which by long tradition or by government fiat have been devoted to assembly and debate , the rights of the State to limit expressive activity are sharply circumscribed. Such locations include streets and parks which have immemorially been held in trust for the use of the public and, time out of mind , have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Emphasis added)
and further down “…distributing literature or pamphlets in the parking lot, walkway or at a picnic table, participating in a silent vigil anywhere in the park, and soliciting signatures for a petition at the entrance to the park.”
“… candidates for public office have campaigned at Greenwich Point, and that both the Democratic and Republican parties and the National Association for the Advancement of Colored People have hosted gatherings there.”(foot#7) To my understanding, family picnic and camp-outs, wedding ceremonies, lectures on the natural world (at the Interpretative Center), and activities such as fishing, boating, and hiking don’t qualify as constituting a “public forum” (a commonly used legal term in these decisions). The lawsuit cited nothing other than the word “Park” that aligned with those precedents. Nor could I find such using a wide variety of web searches.

The other influential cases I found were for parks in downtown areas where speakers and demonstrators would have the opportunity to gather an audience from passersby as well as media coverage. One was a grassy mall across the street from the county government building complex. Several were for the National Mall in Washington DC (^ map^). Another was a Seattle park intertwined with museums, theaters, a stadium, and the Space Needle, effectively grassy surroundings for what would otherwise be urban sidewalks and streets (^ map^).

–Evidence of behind-closed-door decisions and maneuvering–

The Council decision of August 3
1. changed the name of the park to being a nature preserve, a designation that was used on Google Maps and others.
2. reduced the maximum punishment from being a misdemeanor (possible jail time)to an infraction (lesser maximum fine, no jail). Although staff reported that misdemeanor charges had been used in their memory, this was a major item in the plaintiffs’ publicity, reinforcing how evil we racist Palo Altans really are.
3. Encourage the next Council (2021-2022, 5 of 7 members are the same)to have a referendum on this issue during the next municipal election.
4. allowed for a pilot program.
Such a decision should have been placed on the Council agenda two weeks later for the “second reading” to make it official. However, this hadn’t happened 50 days later when the lawsuit was filed, nor had it happened 3 months later when the Council decided to settle.
Note:The Council agenda is controlled by the Mayor who was Adrian Fine. Fine was a vocal advocate for immediately opening the park and who denounced Council’s decision immediately after the meeting ended.
This “oversight” allowed the plaintiffs to continue having the misdemeanor claim in their publicity. It also allowed them to refer to Foothills Park, not Nature Preserve.

–You don’t surrender even small pieces of self-government and democracy–

It’s a slippery slope. The City had agreed to have a pilot program and to have a referendum, but the plaintiffs wanted everything and they wanted it immediately. The settlement requires a permanent injunction from the court taking away from the City and its voters important aspects of managing the park. In blocking the Council’s proposed referendum (in 2022), the ACLU, NAACP, and the plaintiffs are declaring that Palo Alto voters shouldn’t be trusted to make important decisions about governance. We shouldn’t risk this becoming a precedent.

In the August 3 Council meeting, both Alison Cormack and Adrian Fine opposed letting the voters decide what had become a controversial issue. Fine said “You don’t put civil rights to a vote”, although he didn’t say who he thought should.(foot#8)

–Self-promotion by the ACLU and NAACP is more important than people hard hit by COVID-19–

Where would the funding for an open park come from? In the August 3 meeting, Councilmember Alison Cormack proposed taking funding from the COVID Recovery budget. Cormack is another strong advocate for opening the Park immediately. That’s right. The ACLU, NAACP, the plaintiffs, Council member Cormack and lame-duck Fine all prioritized opening Foothills Park to non-resident over helping Palo Alto residents and businesses. What can you say about organizations and individuals that seek self-promotion without regard to its costs to others?

–Accepting humiliation by the plaintiffs–

You don’t meekly submit to bullies. If you do, you are only showing others that they can bully you again and again. On development projects, lawsuits, threats of lawsuits and supposed concern about potential lawsuits have too frequently prompted big giveaways to developers that are against the City’s interest, for example, losing affordable housing.

If you submit to spurious, easily contested claims of racism, your reputation means nothing to you and consequently, you become disreputable.

If you submit to financial bullying without aggressively resisting and seeking other recourse, you mark yourself as an easy mark (patsy, …).

Plaintiffs rubbing our noses in our humiliation: The demand for immediate full opening meant that the City would have no time to come up with and implement a plan for dealing with increased visitors. The plaintiffs should have been well aware of this before filing the lawsuit on September 15 because it had been discussed in recorded public video meetings on this topic in July and August.

Council will once again have to struggle with more budget cuts to find funding for Park repairs, replacements, and more frequent on-going maintenance.

The lawsuit was sloppily drafted (see my previous blogs), presumably because they expected their bullying to succeed and not to have to go before a court. My favorite example is that the park needed to be open to non-residents so that non-residents could go there to protest it not being open to non-residents. (^ pg 5^, lines 11-12). Yes, an inverse ^ Catch-22^.

—-Signing the petition—-

If you are interested in signing the petition or collecting signatures, information and forms are available at website ^ SaveFHP.info^.

—-Footnotes—-
1. Critiques of lawsuit: My previous blogs:
• “^ Foothills Park Pseudo-Lawsuit: Is the City going to cave-in & defame its residents as “racists”?^”, 2020-10-12
• “^ Democracy loses again at City Hall: “Pig in a poke” lawsuit settlement^”, 2020-10-27.
• “^ Lie down, Roll Over, Play Dead: City Attorney and Manager to Council – Unasked/Unanswered Questions^”, 2020-11-02.

2. Public comments and questions about the referendum:
“^ Residents launch referendum petition to keep ban on nonresidents at Foothills Park^”, Palo Alto Online, 2020-12-01.

3. Panel on costs and impacts held just before Council meeting:
“^ Open Foothills Park to all? The costs are high, panel says^”, Palo Alto Online, 2020-07-29.

4. Approval of settlement at Council meeting November 2:
• ^ Staff Report^.
• ^ City Attorney Memo of November 2^ – update to Staff Report.
• ^ Staff Presentation (slides)^.
• ^ Action Minutes^.

5. Rules for referendums in the Palo Alto City Municipal Code:
^ Section 3. Referendum.^

6. Plaintiffs ignoring evidence to the contrary:
“^ Foothills Park Pseudo-Lawsuit: Is the City going to cave-in & defame its residents as “racists”?^”

7. Parks and First Amendment:
The quotes are from the lawsuit Leydon v. Town of Greenwich (2001) in the Supreme Court of Connecticut, ^ text of court decision^.
There are multiple commentaries on this case by law students and others, for example, “^ Can Towns Restrict Public Park Access to Residents and their Guests?^” (PDF).
This case is not a formal legal precedent outside the state courts of Connecticut, but its reasoning can be cited elsewhere.
Note: This decision seems overly broad because it includes “sitting or walking on the beach in a T-shirt that expresses a particular political view or religious conviction” as an expressive activity — part of free speech — deserving protected status for the wearer.

8. Opposing letting the voters decide:
Search for “civil” in article “^ City to expand access to Foothills Park through one-year pilot program: Council supports permits for nonresidents, looks to send issue to the voters in 2022^”, Palo Alto Weekly, 2020-08-07.

—-
An ^ abbreviated index by topic and chronologically^ is available.

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