Advisor Newsflash

On March 12, 2010, the Ninth Circuit Court of Appeals ordered en banc rehearing on Norse v. City of Santa Cruz, et al., Docket No. 07-15814 (9th Cir. 2009), discussed in the Winter 2009 edition of the Advisor. As a result, the Norse case cannot be cited as law at the present time.

Dealing with Disruptions at Public Meetings

By Craig A. Steele

The line between forcefully expressing one's views at a government meeting and disrupting the public's business is a fine one. Public officials in every jurisdiction have experienced those one or two regular meeting participants who seem to revel in cozying up to that fine line, and even trying to move it from time to time. While one person may need to shout and pound a table to make a particularly emotional but legitimate point in a debate, another might throw an entire meeting into disarray with a simple, yet highly-charged, silent gesture. The former is likely protected by the First Amendment, but the latter is not under a recent published decision of the United States Court of Appeals for the Ninth Circuit.

Norse v. City of Santa Cruz, et al., Docket No. 07-15814 (9th Cir. 2009) is the Ninth Circuit's most recent attempt to provide guidance to presiding officers at public meetings about how to find that fine line between expression and disruption. The court has long-held that presiding officers have great discretion in enforcing reasonable rules for the orderly conduct of meetings. Kindt v. Santa Monica Rent Control Board, 67 F.3d 266, 269 (9th Cir. 1995) ("Kindt"). Public officials may lawfully restrict speech in a public meeting that could not be restricted by the government if delivered by a speaker in the more traditional public forum of a street corner. In meetings, public officials can require speakers to follow simple rules of decorum, stick to specified subject matter, be relevant and deliver comments in a specified order and method. White v. City of Norwalk, 900 F.2d 1421, 1425-26 (9th Cir. 1990) ("White"). While such restrictions cannot be used to suppress any particular view, public officials must have the means to accomplish their business in an orderly fashion.

Thus, in reliance on White and Kindt and the authority of the Brown Act, most public agencies enforce reasonable rules regarding public participation at meetings. (See, Government Code Section 54954.3(b).) It has been a long-accepted practice to enforce time limits on public comments, to require speakers to speak on specified subjects only, and to avoid conduct that actually disrupts the orderly process of public meetings. The law provides a certain measure of "teeth" to make rules against disrupting meetings real and enforceable. (See, e.g., Government Code Section 54957.9; Penal Code Section 403.) Most public agencies would require an actual physical disruption of a meeting by a member of the public – words or demonstrations that actually bring the meeting to a stop – before ejecting a disruptive member of the public.

The most frequent disruption of a public meeting is one that is audible; a speaker who refuses to stop when his or her time limit expires, or an audience member who shouts from the gallery, for example. But in Norse, the Ninth Circuit rather surprisingly held that a silent, demonstrative gesture that interrupted the meeting by offending a member of the City Council was a disruption that warranted ejection. In a long-running dispute, Plaintiff Robert Norse was ejected from two Santa Cruz City Council meetings in 2002 and 2004 when the Mayor found that his conduct disrupted the meetings. He sued the City and City Council members, alleging that the ejections and his subsequent arrests violated his First Amendment rights. The constitutionality of Norse's 2004 ejection was not in doubt. He was ejected from a council meeting after he paraded around the council chambers during a meeting flashing a Nazi salute, clearly bringing the meeting to a halt.

In the 2002 incident, Norse was ejected from a City Council meeting after he stood in the back of the room and flashed a silent Nazi salute, seemingly in protest of the Mayor's ruling that another speaker had exceeded the time limit. Although the Mayor did not see the salute, another Council member was offended and commented on the gesture and asked that Norse be removed. Norse was subsequently ejected and arrested for disrupting the public meeting.

The Ninth Circuit found that Norse had constitutionally been ejected because his action, although silent, could reasonably have been interpreted as intended to support and further the disruption that had already taken place when the previous speaker refused to leave the podium. The court held that public officials "are not required to condone conduct fostering disruption of the meeting." The court further held that each of the public officials involved and the arresting police officers were entitled to qualified immunity from liability because they acted in the reasonable belief that Norse violated valid rules of decorum.

(Video of the 2002 Norse incident is available on-line. The video is a helpful illustration of the dispassionate and professional way that an obviously prepared Mayor handled a difficult situation.)

Public officials, and especially presiding officers, can take away four helpful points from Norse and the court's restatement of the rules from White and Kindt:

1. It is critical that every public agency have in place reasonable rules for the conduct of its public meetings. Actions taken to prevent disruptions without the support of clear rules may be viewed as arbitrary.
2. People can disrupt a public meeting through words or conduct. Even a gesture that has the effect of interrupting the flow of a meeting, even temporarily, may constitute a disruption.
3. A meeting disruption must actually stop the meeting. If the disruption continues after the chair issues a warning, it is critical that the chair then call a brief recess. This provides some time to defuse the situation, and it demonstrates that the orderly conduct of the meeting actually was stopped for some period.
4. The message or subject matter of the disruption is irrelevant. Speech or conduct cannot be regulated based on its content. A demonstration in support of a City Council action is just as disruptive as a protest.

FOR ADVICE FROM RW&G ON PUBLIC MEETINGS AND THE RALPH M. BROWN ACT, PLEASE CONTACT CRAIG A. STEELE OR ANY OF THE ATTORNEYS IN THE FIRM’S PUBLIC LAW DEPARTMENT

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