San Diego County BOS sued by Briggs over attempt to rein in public comments

 Can Rules Enforce Civility without Limiting the Peoples Right to Address their Government - Summary

This post discusses a legal challenge to changes made by San Diego County Supervisors to their rules for public comments during meetings and the current litigation. Here's a summary of the key points:

1. In November 2022, San Diego County Supervisors imposed new rules on public comments after incidents of incivility and racist remarks during meetings.

2. The nonprofit Project for Open Government is suing the county, claiming these changes are unconstitutional.

3. The main points of contention are:
   - Allowing the chairperson to reprimand speakers for "discriminatory or harassing" remarks
   - Changes to how the Consent Calendar is handled, limiting public comment time
   - Potential infringement on free speech rights

4. The lawsuit highlights the challenge of maintaining order in public meetings while protecting First Amendment rights.

5. Experts cite the COVID-19 pandemic, economic issues, and political discourse as factors contributing to increased incivility in public meetings.

6. The document compares the new Board of Supervisors rules to Brown Act requirements, noting similarities and differences.

7. The court case could go to trial later in 2024.

8. Legal analysis suggests the court may uphold most of the new rules but might require some modifications, particularly regarding time limits and the definition of discriminatory or harassing remarks.

9. The overall issue reflects a broader struggle to balance public participation with efficient government operations in an increasingly contentious political environment. 

San Diego County sued over attempt to rein in public comments | KPBS Public Media

kpbs.org

Amita Sharma

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Published August 2, 2024 at 6:00 AM PDT

An attempt by San Diego County Supervisors to rein in the almost routine insults, racist statements and wild accusations made during public comments is being challenged in court.

Supervisors imposed new rules on public comments in November 2022 after incivility escalated during the pandemic. The alterations were made immediately after San Diegan Jason Robo referred to then-county public health officer Dr. Wilma Wooten, who’s Black, as a “f-ing Aunt Jemima.”

The nonprofit San Diego-based Project for Open Government is suing the county, alleging that the changes made in November 2022 were unconstitutional.

“I don't agree with the reprehensible and just repugnant comments by people at times,” said Project for Open Government President Mat Wahlstrom. “But they overreacted.”

Specifically, his watchdog group objects to a change that allows the chairperson of the board of supervisors to reprimand a member of the public if their statements are deemed “discriminatory or harassing.” The change was made to the county’s Rules of Procedure document, which outlines how supervisors should conduct public meetings,

“The problem is with the definition of discriminatory or harassing remarks,” said lawyer Cory Briggs, who represents Project for Open Government in its lawsuit against the county. “You are allowed to be critical of public officials and public employees. We can criticize the government strongly. This definition now allows one person, the chair of the board, to decide that he or she doesn't like the comments that are being made, and even if they're legally protected under this definition, can say, ‘Stop.’” 

Briggs frequently sues local municipalities and has been criticized for starting multiple nonprofits to file those lawsuits.

The county did not respond to requests for comment. But its document highlighting the changes does have a specific definition for discriminatory or harassing remarks. It says they are “legally protected speech in a board meeting that disparages an individual or group based on their perceived race, religion, sexual orientation, ethnicity, gender, disability or other hate speech but does not rise to the level of a criminal threat or inciting violence.”

Project for Open Government’s lawsuit against the county illustrates how tough it is to bring order to unruly meetings without trampling on free speech rights.

Public comments at supervisors’ meetings have grown more uncivil since 2021, a year into the pandemic, according to a KPBS analysis. Citizens openly mocked supervisors, swore at them and had routinely accused them of engaging in criminal conduct, such as murder and trafficking, and alleged they’re pushing a “satanic agenda.” The regular verbal assaults have chilled public policy discussions and dissuaded some San Diegans from attending because they are repelled by the nastiness and the possibility of being heckled for their views.

The tone and language is echoed at public government meetings across the county and the country. Experts blame COVID-19 vaccine mandates, the pandemic lockdown, the spiraling cost of living and a permission structure created by former President and current presidential candidate Donald Trump, who regularly attacks political rivals, women and people of color.

“I don’t want to blame Donald Trump for everything,” said constitutional scholar and UC Berkeley Law School Dean Erwin Chemerinsky, who has advised local governments on managing ugly public comments. “But I think Donald Trump has played a key role in changing the nature of discourse by making it acceptable to be transgressive in a way that we’ve never heard before in public, to say things that we’ve never heard in public. And I think people follow that example.”

Chemerinsky, who is not involved in the lawsuit against the county, said supervisors can clamp down on disruptive behavior by members of the public. For example, they can stop people from shouting over others who are speaking.

“If the public comment is getting out of hand, they can certainly limit the amount of time that they're going to devote to public comments,” Chemerinsky said. “But the difficulty is that they can't say we're going to have a civility code for how to speak. They can't say no profanities. They can't say no ethnic or racial slurs because that's protected by the First Amendment.”

David Loy of the First Amendment Coalition, who also isn’t a part of the lawsuit, said those Constitutional protections ensure that the government can’t crack down on dissenters.

“This is why we have a First Amendment to ensure that we do not allow the government to censor people based on their viewpoint,” Loy said. “And sometimes the price we pay for that is we have to tolerate speech that we don't like. We have to tolerate speech that we hate.”

Briggs said the case challenging the county’s rule change governing public comments at supervisors’ meetings could go to trial later this year.

San Diego County Board of Supervisors Rules for Public Comment

Here's a summary of the key rules for public comment at San Diego County Board of Supervisors meetings based on the current Rules of Procedure document after the changes:

1. Time limits:
   - Generally 2 minutes per speaker on agenda items not on Consent Calendar
   - 2 minutes total to comment on entire Consent Calendar
   - If 10+ speakers, Chairperson may limit to 1 minute each
   - Group presentations up to 10 minutes allowed for land use/adjudicatory matters only

2. Speaking procedures:
   - Must file a written Request to Speak form before public comment begins
   - Can't yield time to another person
   - Non-English speakers using translators get twice the allotted time

3. Non-Agenda Public Communication:
   - 20 minutes total at start of session
   - 2 minutes per speaker
   - Limited to first 10 speakers (5 in-person, 5 remote)
   - Additional speakers may be heard at end of session

4. Conduct rules:
   - No loud, threatening, profane or abusive language
   - No disruptive behavior
   - Chairperson may warn, limit time, or remove disruptive individuals
   - No large placards, banners, signs, flags, etc. allowed

5. Remote participation:
   - Option to address Board remotely via phone/internet available
   - Must follow same rules as in-person speakers

6. Presentations/videos:
   - Must bring own equipment or submit 24 hours in advance

The Chairperson has discretion to modify time limits and enforce conduct rules to maintain orderly meetings.

 Summary of Complaint

This document is a legal complaint filed by Project for Open Government (the plaintiff) against the County of San Diego (the defendant). The key points are:

1. The complaint challenges Resolution no. 21-174, which made changes to the San Diego County Board of Supervisors' (BOS) Rules of Procedure.

2. Two main causes of action are presented:

   a) Violation of Free-Speech Rights:

•    - The new rules allow the BOS Chairperson to admonish speakers for "discriminatory or harassing remarks," which the plaintiff argues includes legally protected speech.
•    - The definition of such remarks is claimed to be impermissibly vague.
•    - The plaintiff argues this change chills free speech at public meetings.

   b) Violation of Open-Government Laws:

•    - The new rules change how the Consent Calendar is handled in meetings.
•    - Public members can no longer request individual items be removed from the Consent Calendar for separate consideration.
•    - Speakers now have only 2 minutes to address all Consent Calendar items, rather than 2 minutes per item.
•    - The plaintiff argues these changes limit public participation and access to information.

3. The plaintiff seeks:

•    - Declaratory judgments that the new rules violate free speech rights and open government obligations.
•    - Injunctive relief to prohibit enforcement of the problematic rules.
•    - Attorney fees and other legal expenses.

4. The complaint was filed on December 15, 2021, by the Briggs Law Corporation on behalf of Project for Open Government.

Brown Act Requirements

Here are the key requirements of the Brown Act for public participation:

1. The public has the right to attend and participate in open meetings of local legislative bodies without having to register or provide information as a condition of attendance.
2. Every agenda for regular meetings must provide an opportunity for members of the public to directly address the legislative body on any item under the body's jurisdiction.
3. For items on the agenda, the public must be allowed to comment before or during the body's consideration of the item.
4. For items not on the agenda, the public can raise issues but no action may be taken. The body may briefly respond, provide information, or schedule the matter for a future meeting.
5. Bodies may adopt reasonable regulations on public testimony, including time limits for speakers. However, they cannot prohibit public criticism of the body's policies, procedures, programs, or services.
6. For special meetings, the public must be allowed to comment on items described in the notice before or during consideration.
7. The public has the right to record, broadcast or photograph meetings, as long as it does not disrupt proceedings.
8. The body cannot require fees or other conditions for attendance.
9. Facilities used for meetings must be accessible and non-discriminatory.
10. Agendas and other public records must be made available to the public without delay.

The overall intent is to ensure the public can attend meetings, comment on agenda items, raise issues, and have access to information, while allowing bodies to maintain orderly proceedings.

BOS Rules v Brown Act

Based on the summaries provided, here's a comparison of the San Diego County Board of Supervisors (BOS) Rules of Procedure for Public Comment to the Brown Act requirements:

Similarities:

1. Both allow public comment on agenda items and non-agenda items under the body's jurisdiction.
2. Both permit bodies to adopt reasonable regulations on public testimony, including time limits.
3. Both prohibit requiring registration or fees as a condition of attendance.
4. Both allow for the recording of meetings by the public.
5. Both require facilities to be accessible and non-discriminatory.

Differences:

1. Time Limits: The BOS Rules are more specific, generally allowing 2 minutes per speaker on agenda items and 2 minutes total for Consent Calendar items. The Brown Act doesn't specify time limits but allows bodies to set reasonable regulations.

2. Non-Agenda Public Communication: The BOS Rules allocate a specific 20-minute period at the beginning of sessions for this, with additional time at the end if needed. The Brown Act doesn't specify such a structure.

3. Remote Participation: The BOS Rules explicitly provide for remote public participation. The Brown Act doesn't specifically address this, likely due to its age.

4. Conduct Rules: The BOS Rules include more detailed conduct rules and procedures for dealing with disruptive behavior. The Brown Act is less specific on this point.

5. Group Presentations: The BOS Rules allow for 10-minute group presentations on land use or adjudicatory matters. The Brown Act doesn't specifically address group presentations.

6. Presentations/Videos: The BOS Rules have specific requirements for public presentations or videos. The Brown Act doesn't address this in detail.

7. Discriminatory/Harassing Remarks: The BOS Rules include specific procedures for handling potentially discriminatory or harassing public comments. The Brown Act doesn't address this specifically, though it does protect the public's right to criticize the body.

Overall, the San Diego County BOS Rules appear to be more detailed and specific than the Brown Act requirements, likely reflecting the Board's effort to implement the Act's principles in a way that fits their specific needs and circumstances. The BOS Rules seem to go beyond the minimum requirements of the Brown Act in several areas, particularly in structuring public comment periods and addressing potential issues that may arise during meetings.

Time Limits

The San Diego County Board of Supervisors' (BOS) time limitations for public comment seem quite restrictive, especially for complex or contentious issues. Let's analyze this aspect more closely:

1. BOS Rules: Generally allow 2 minutes per speaker on agenda items, and 2 minutes total for all Consent Calendar items. For very popular items, this can be reduced to 1 minute per speaker.

2. Brown Act: Does not specify time limits but allows bodies to adopt "reasonable regulations" for public comment, including time limits.

Potential issues with the BOS approach:

1. Complexity: Two minutes is often insufficient to fully explain or argue a complex issue, especially those involving technical, legal, or financial details.

2. Contentiousness: For highly debated topics, 1-2 minutes per speaker may not allow for a full exploration of different viewpoints.

3. Consent Calendar: Limiting comments to 2 minutes total for all Consent Calendar items could be problematic if there are multiple controversial items bundled together.

4. Fairness: The ability to reduce speaking time to 1 minute for popular topics might inadvertently penalize issues that generate high public interest.

5. Depth of public input: Such short time limits may lead to superficial comments rather than substantive input.

6. Potential Brown Act conflicts: While the Act allows for reasonable regulations, overly restrictive time limits could potentially be seen as inhibiting meaningful public participation.

It's worth noting that while these time limits seem stringent, they are likely designed to balance public input with meeting efficiency. However, for particularly complex or contentious issues, the BOS might consider:

1. Extending time limits for certain topics
2. Holding special meetings for major issues
3. Accepting written comments to supplement oral testimony
4. Using workshops or town halls for in-depth public discussions

These alternatives could help ensure more thorough public participation while still maintaining orderly meetings, better aligning with the spirit of the Brown Act's emphasis on public participation.

How is the Court Likely to Hold

Based on my understanding of the Brown Act and legal principles, the Court is likely to consider the following factors in its ruling:

1. Statutory Compliance: The Court will first assess whether the San Diego County Board of Supervisors' (BOS) rules comply with the minimum requirements of the Brown Act. From the summary provided, it appears that the BOS rules do meet these basic requirements.

2. Reasonableness Standard: The Brown Act allows legislative bodies to adopt "reasonable regulations" for public comment. The Court will likely apply this reasonableness standard to the BOS rules.

3. Balance of Interests: The Court will likely consider the balance between facilitating public participation and the government's interest in conducting efficient meetings.

4. Specific Challenges:

   a) Time Limits: While the BOS time limits are strict, courts have generally upheld time limits as long as they are applied consistently and allow for some meaningful participation. The Court may find these limits reasonable, especially if the BOS can demonstrate they are necessary for efficient meetings.

   b) Consent Calendar: The limitation on Consent Calendar comments might be scrutinized more closely, as it could potentially limit commentary on multiple items.

   c) Discriminatory/Harassing Remarks: The Court may look closely at these provisions to ensure they don't infringe on protected speech.

5. First Amendment Considerations: The Court will likely consider whether the rules unduly restrict free speech rights, particularly regarding content-based restrictions.

Likely Outcome:

The Court is likely to uphold most of the BOS rules as reasonable regulations under the Brown Act. However, they may require some modifications:

1. The Court might suggest more flexibility in time limits for complex issues or high-interest topics.

2. They may require clarification or modification of the rules regarding "discriminatory or harassing remarks" to ensure they don't infringe on protected speech.

3. The Court might recommend revisions to the Consent Calendar comment procedure to ensure adequate opportunity for public input on multiple items.

While the Briggs filing may not present strong legal arguments, it has highlighted potential issues with the BOS rules. The Court is likely to address these concerns while still largely upholding the BOS's authority to regulate its meetings.

The Court is unlikely to invalidate the rules entirely, but may require some adjustments to better balance public participation with meeting efficiency, in line with the spirit of the Brown Act.