Council was reportedly briefed on the legal aspects in one closed session (September 28) and made the decision to settle in another (October 19). The ^Staff report^ for this important decision is a mere four pages, and fails to address these questions.
Can the people be trusted in a democracy?
This lawsuit seeks to overturn a Council decision made after extensive public discussions, and to block an expected referendum of the voters, and to block other future actions by both the Council and the voters. If the Council settles this lawsuit, they are declaring that the voters cannot be trusted, and that such decisions should be made by a self-appointed elite -- the plaintiffs, only two of whom are even Palo Alto residents.
Has the City considered how many freedom-of-speech lawsuits will be enabled by settling this lawsuit?
With Foothills Preserve becoming a free speech area, the City is much less able to have rules about usage because such rules will not stand up to challenges if they are merely reasonable and in the public interest. Instead, they are regarded as unconstitutional restrictions on free speech and a wide range of other expressive behaviors unless the City can prove that the rules "serve a compelling government interest" (crucial legal wording). For example, in ^Berger v. City of Seattle 2009 (US Court of Appeals, 9th Circuit^, the court invalidated a rule because Seattle didn't prove this while acknowledging that the plaintiff failed to show the rule harming free speech activities.
The answer: an untold, unpredictable number.
What are the precedents from other nature preserves in regulating "expressive activities"?
"Free speech" includes much, much more than political speech. Court decisions have expanded it to include a wide range of "expressive activities", including musicians, visual artists, and street performers. It also allows people to be approached and verbally engaged, with the expectation that a person not willing to be so "engaged" will respond by leaving the area. It also limits the government's ability to set appropriate noise levels.
Because the lawsuit designates the whole Preserve as subject to free-speech protections, what ability would the City have to regulate "expressive activities" along the nature trails?
What is the impact on the Preserve of having the nature trails declared "public thoroughfares" ? (Third Cause of Action, paragraph 73 on ^pg 23^).
My web search for "public thoroughfare" turned up many legal definitions that differed widely over the many jurisdictions. Similarly when I added "trail" and then "hiking trail". In many cases, "hiking trail" was illustrated with a broad path, often paved, that was suitable for bunched-up groups. Many referenced "vehicles". I have no idea what the relevant definition would be for the Preserve. Does the City?
Under this designation, to what extent, if any, could the City restrict the trails to just pedestrians (hikers)? Allow/exclude bicycles? Exclude mopeds, motorcycles, and other large motorized vehicles? Exclude small motorized vehicles, such as Segway scooters, the single-wheeled skateboards/hoverboards whose advertising shows them on forest trails? (Example videos: ^Onewheel @1:00^ and ^XR @1:00^)
Surrendering self-government: Is it legal?
The settlement tentatively requires the City to have the court apply a permanent injunction prohibiting the City from changing what the City eventually agrees to in the settlement. Can the City legally do this? Recognize that the August 3 Council decision initially specified that a referendum would be held in 2022, but was told that the current City Council (2019-20) cannot bind the next one (2021-2022), and that they could only direct Staff to bring this issue before the next Council. So can they legally bind future Councils to not do something?
What else could a current Council bind a future Council to not do? Would this not allow the majority of one Council to use a lawsuit from allies to make permanent a decision that would have been modifiable by the will of the voters as expressed in future elections?
Meaningless concessions by plaintiffs
The Staff Report claims that the settlement would allow the City to adjust attendance levels as needed to protect the Preserve. Does the Staff not realize that this is meaningless? These plaintiffs, or any other plaintiffs, could file a new lawsuit demanding that the City prove whatever the specific number "serve a compelling government interest."
Conflicts of interest in City Hall?
After Council makes a decision, it doesn't become official until Council approves the "second reading". In the interim, Staff draws the official version of the Council decision, and Council is able to check that that drafting represents what they agreed to. In rare cases, new information becomes available that show the decision to be unwise, and voting down the second reading is simpler and faster than going through the whole process of having hearings to revoke that decision.
Normally, the second reading follows a Council decision by about four weeks. However, in the case of the Council's August 3 decision, no second reading had occurred when the lawsuit was formally filed over 7 weeks later. Nor has it been on the agenda in the almost 6 weeks since then.
Have the City Hall opponents of the Council decision maneuvered to prevent this from happening?
Conflicts of interest for our outside lawyers?
The City Attorney hired an outside law firm to defend the City in this case. City Council only inadvertently discovered that this law firm does considerable work for the NAACP, one of the plaintiffs against the City. Has the City Attorney and City Council explored whether this potential conflict-of-interest might have affected that firm's recommendation that the City settle?
During the August 3 Council meeting, Staff identified a number of upgrades, repairs, and deferred maintenance that would be needed to support just 50 more vehicles per day for the pilot program. The lawsuit seeks to increase the limit to 1000 people per day. Because of the severe budget cuts, there was no funding available for even the pilot program.
"Council Member Cormack did not believe the Pilot Program could be revenue neutral. The Council set aside $744,000 in a COVID-19 Uncertainty Reserve, which was possibly to be used to fund Community Services programs." (^Final Minutes, page 19^).
If the lawsuit is settled, what will be the capital costs and increased maintenance costs? Where will that funding come from?
Countermeasures (part 1)
The biggest reason given for the City to settle would be the expense of defending the case, especially if the City loses and the judge decides that the City should pay the plaintiffs expenses.
This ignores that the institutional plaintiffs -- the ACLU and NAACP -- have considerable financial exposure in this case: the donations that support them. The plaintiffs are attempting to force the City to settle with an ongoing publicity campaign of unsupported claims of racism, apparently derived from Critical Race Theory.
Suppose the City threatened to counter with its own publicity campaign, with press releases having titles similar to "ACLU and NAACP attempting to block voter referendum using false claims of racism"? November and December are peak times for tax-deductible contributions and the economics of COVID and special tax rules pose added difficulties.
Countermeasures (part 2)
Another reason given for settling is that the plaintiffs' lawyers would bleed the City with demands for depositions and records in an attempt to find something that they could spin into allegations of racism. However, as the Staff Report notes, the claimed racism of the City, its employees, and its residents is absent from the stated Causes of Action.
Wouldn't the City be able to block such harassment with a court motion pointing out the irrelevance?
The ^Staff report, page 5^ states "Adoption of this Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15301 (Existing Facilities) ..."
but when I look up that section, its opening paragraph states
"The key consideration is whether the project involves negligible or no expansion of use."
But the very intent of the lawsuit is to greatly expand the use, both in the number of visitors and the range of activities by those visitors.
Bicyclists on Page Mill Road between I-280 and Skyline Blvd (CA-35) could be expected to have their safety considerably impacted by increased traffic to the Preserve. Such impacts are the reason that CEQA reviews are conducted.
The City has been successfully sued for a variety of inadequate and faulty CEQA reviews. Does City Hall think they won't be sued for such an obvious violation of CEQA requirements?
Verdict first, then the evidence
Council is being asked to approve a settlement of the lawsuit before the terms of the settlement have been finalized. I don't know the legal details of California's Open Meetings Act -- commonly referred to as the (Ralph M.) Brown Act -- or the City's own ordinances on government transparency, but this seems to be a violation of the intent of those laws. Would there be a violation here, and what would be the consequences?
Isn't Palo Alto just declaring itself to be a patsy for frivolous lawsuits?
This lawsuit has two marginally related parts slapped together. The first part is a public relations document alleging Palo Alto's racism, loaded with deceptions and false statements (commission and omission). The second part is a series of related claims of unconstitutional situations, with negligible citation of the considerable body of legal precedent covering the many disparate situations and many aspects of those situations. If the City is willing to roll over and settle such a flagrantly "deficient" lawsuit, won't this attract lots of frivolous lawsuits from lawyers with some slack time and hopes of "getting lucky"?
----Contact City Council or attend the virtual meeting----
To send an email on this matter to all members of City Council, address it to [email protected] (capitalization is irrelevant). It is requested that you have a subject line identifying the agenda item, in this case, "Nov 2, Item 6, Foothills Nature Preserve" should be more than enough.
If you want to attend the virtual meeting, either to just listen or speak on this agenda item, instructions can be found at the top of the ^Agenda^.
----Previous blogs on this topic----
• ^Democracy loses again at City Hall: "Pig in a poke" lawsuit settlement^, 2020-10-27.
• ^Foothills Park Pseudo-Lawsuit: Is the City going to cave-in & defame its residents as "racists"?^, 2020-10-12.
• ^Foothills Park: City does NOT want to hear from most of you^, 2020-07-27.
• ^Foothills Park controversy back to Council yet-again on Tuesday: Why, oh, why?^, 2020-06-21.
An ^abbreviated index by topic and chronologically^ is available.
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