Lie down, Roll Over, Play Dead: City Attorney and Manager to Council - Unasked/Unanswered Questions | A Pragmatist's Take | Douglas Moran | Palo Alto Online |

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Lie down, Roll Over, Play Dead: City Attorney and Manager to Council - Unasked/Unanswered Questions

Uploaded: Nov 2, 2020
Tonight, City Council is being asked to settle a lawsuit on Foothills Park for which there are too many major unanswered questions for them to make such a decision. It is some of these questions that are the subject of this blog. If you want more details, my previous blogs -- listed below -- may help.

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?

CEQA exempt?
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 (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.

----Warning on Comments Disappearing during Submission----
If you are writing a long comment, do not write it inside the comment box below, but rather write it elsewhere and copy-and-paste it into here. Every now and then, a comment will disappear during the SUBMIT process.
Details: This has happened to me and to others, but it has not been reliably reproducible. It happens between the submission of the CAPTCHA and the redisplay of the page that should have your comment added. I have suspicions that it involves the browser's security and ad-blocking settings and ads whose coding includes suspicious actions.

----Boilerplate on Commenting----
The ^Guidelines^ for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

I am particularly strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", do not be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.
A slur is not an argument. Neither are other forms of vilification of other participants.

If you behave like a ^Troll^, do not waste your time protesting when you get treated like one.
What is it worth to you?


Posted by rita vrhel, a resident of Crescent Park,
on Nov 2, 2020 at 11:23 am

rita vrhel is a registered user.

thanks again Doug..... serious reading and more information than the City Attorney or Manager feels the residents of Palo Alto need to know.

wonder who knew this "Lawsuit" was coming and so did not bother to have the second reading on the democratic city council decision on foothills Preserve? If I remember correctly the mayor and City Manager schedule the agenda.. it has been Adrian's goal to open the preserve for months..maybe he should recuse himself in the voting? Glad to see him leaving town and off the Council..

Posted by Balance, a resident of Charleston Meadows,
on Nov 2, 2020 at 3:24 pm

Balance is a registered user.

All the council needs to do is to wait. The upcoming countrywide after-the-elections upheaval will change the perspectives of Palo Alto citizens, and of Palo Alto City council, a lot.

If the result of the upcoming hostilities - media, legal, and physical - will be that the Trump's camp wins, the BLM movement will be likely deemed dangerous by the federal government, and forcibly squashed.

If the Biden's camp wins, the BLM will be no longer needed, and will shrink dramatically due to the funding being cut off. In any case, the BLM-themed lawsuits are bound to have a limited shelf life.

Driving on Page Mill is very dangerous already, especially for bicyclists: just ask doctors at Stanford Medical Center Trauma. Letting in significantly more visitors is bound to maim and kill more Palo Altans.

That's what the City Council better be thinking about now: how to preserve health and lives of Palo Altans. This mission may have seemed abstract a year ago, but these days it became much more difficult to execute.

Posted by Lee Forrest, a resident of Crescent Park,
on Nov 2, 2020 at 7:48 pm

Lee Forrest is a registered user.

>"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 --"

^ Surprise...the City of Palo Alto governance has become an oligarchy.

Posted by Douglas Moran, a Palo Alto Online blogger,
on Nov 2, 2020 at 8:11 pm

Douglas Moran is a registered user.

@Lee Forrest "...has become..."
That implies a recent development.
My experience with Palo Alto politics goes back only to the mid-1990s, but I don't remember a time it wasn't an oligarchy, often quite openly.

In the early 2000s, I remember the oligarchy's outrage that the Internet decreasing the hold of those who were located in the University Avenue downtown and could easily arrange face-to-face meetings during mid-day. This outrage went so far as to surface in a State of the City speech.

Posted by Balance, a resident of Charleston Meadows,
on Nov 2, 2020 at 11:02 pm

Balance is a registered user.

Not surprised by the Council vote tonight. Of course they have more pressing considerations than the wishes of the Palo Alto voters majority. This is not a sarcasm, but rather a sobering reminder of how the real politics works.

Surprised by majority of the Council not recognizing the implication of the injunction, and thus voting againsts inserting the safeguard against it, wisely proposed by DuBois and supported by Tanaka and Kou.

Here's what's at stake. Palo Alto - a community - half a century ago decided to restrict access to a piece of land and a property situated there, which this community owns and maintains. This year, another collective entity challenged that right on rather dubious grounds.

What are other examples of communities? A gated community of neighbors. A sports club. A social circle. A family.

If there is an injunction, it will create a court precedent, upon which any community of bullies could then claim a right of access to a land and property owned and maintained by another community, on the grounds that the bullies would like to exercise their constitutional rights of free assembly and free speech there.

You think this is far-fetched? Remember the couple of citizens from St. Louis, who insisted on the right of their family to restrict access to the property they own? And where it landed them?

Web Link

I consider the Foothill Park lawsuit a part of the systematic attack on the traditional property rights. A prelude to a some kind of socialist revolution in the United States.

Even if such revolution turns out to be inescapable, I agree with Mr. DuBois that we better make the inevitable changes wisely, gradually, and on our own terms. Or we'll soon enough have gang members insisting on having their meetups in our backyards.

If the non-residents really wanted to just open up the park, they'd work with the council to proceed with the Pilot plan, which was indeed a wise and gradual way to do this, and which would have a lot more support from Palo Altans.

Instead, they continued pressing on for a court precedent eroding the communal property rights. If Palo Alto allows them to bite off this finger, it'll make it easier for them to bite the whole arm off the US.

Posted by Ardan Michael Blum, a resident of Downtown North,
on Nov 3, 2020 at 10:28 am

Ardan Michael Blum is a registered user.

On many levels this is an extremely powerful article. Thank you for the insight.

Posted by Mike, a resident of Green Acres,
on Nov 3, 2020 at 1:05 pm

Mike is a registered user.

We are there!

Posted by mjh, a resident of College Terrace,
on Nov 3, 2020 at 2:32 pm

mjh is a registered user.

Thank you for such a cogent and thoughtful analysis of the many issues the council majority has chosen to ignore. Once again residents are faced with a council action taken in haste at the behest of the city's legal counsel and city manager without the inconvenience of due diligence the public deserves.

Posted by Resident 1-Adobe Meadows, a resident of Adobe-Meadow,
on Nov 4, 2020 at 10:32 am

Resident 1-Adobe Meadows is a registered user.

I truly wonder about the management of this city which we pay for. Our attorney had to call in other attorneys? We have been talking about FHP for years now. A lot of the city is very conversant on all of the aspects of this situation. Why not the city attorney? The City Manager is a transplant from San Jose. Is he taking direction from San Jose and the county as to city issues? The "mayor' is a transplant from another country and is trying to work his way up the chain of command of state politics?
Is everyone "in charge' taking direction from somewhere else?

For the amount of press we get in national papers we should have a power house city manager and city attorney.

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