Judge Restores Newspapers
to City Property
to City Property
By Kim Lefner
Despite three council members’ attempt to ban the Community Common Sense from city-owned property, an OC Superior Court Judge recently ordered that newspapers be temporarily restored pending a full hearing on the matter.
“The people have the right to read and access newspapers on public property,” stated OC Superior Court Judge James Di Cesare in response to an application for a Temporary Retraining Order filed by attorney Wayne Tate who is representing the Community Common Sense (“CCS”). The judge directed the attorney representing the city, Philip Kohn of Rutan & Tucker, to work out a mutually agreed upon location with CCS for placement of its news racks or, said Judge Di Cesare, “I’ll do it for you.”
The judge also ordered the City to allow CCS to place its publication in the Seniors Reading Room at the Community Center, where several members of city staff had been observed throwing it in the trash while leaving copies of other publications on tables and in display racks.
“Our constitutional rights of free speech, free press and the right to distribute the press were upheld, and [the CCS’] actions were vindicated,“ said attorney Tate after the hearing.
The city made a number of claims about why news racks would no longer be allowed in front of City Hall and the Community Center where they had stood for many years. Councilman (now Mayor) Sam Allevato commented that if everyone is allowed to place their news racks there, “pornography” might proliferate in those locations. “Public safety” and “littering” were also offered as reasons for banning news racks.
But according to attorney Tate, “Their reasons defy logic. Where was their supposed concern about any of these issues during the many years that other publications stood in news racks at those locations? It wasn’t until the CCS placed its news racks next to two others that they raised any of these alleged concerns.”
In fact, according to Council member Roy Byrnes (who voted against the ban), within four days of CCS placing its news racks alongside two others, Council members Sam Allevato, Larry Kramer and John Taylor voted behind closed doors to ban news racks on city property. The public was initially unaware of the ban as the vote was not reported out in open session as required by law. City Attorney Hans Van Ligten later claimed that was because “there was no reportable action” taken during the closed door meeting. However, just two weeks after the meeting, the CCS received a letter from Van Ligten ordering the removal of its news racks, so clearly action was taken.
Van Ligten went a step further in a follow up letter to CCS in which he stated the CCS was prohibited from placing its publication “on any city property” under threat of criminal prosecution. Van Ligten ended the letter with; “There is no misunderstanding on the part of Sheriff personnel and City employees. The understanding is that such conduct is illegal and will subject CCS and its members to legal repercussions.”
“This court action was totally avoidable,” said Tate. “The city council members who voted for the ban were given plenty of time to work out a solution. We offered three reasonable proposals to settle the issue outside of court, but the city rejected all of them, so they left us no choice but to ask the court to intervene,” Tate added.
Judge Di Cesare’s order is temporary until a more permanent solution can be determined. The CCS’ next court date is scheduled for February 27.