County government named in civil suit

The complaint alleges free speech restraints by legislature

Posted

Editors note: This story was updated on April 3, 2019 to include the audio from the Tompkins County Public Safety meeting on May 18, 2017.

Are your First Amendment rights being violated by county government? That’s the argument of a lawsuit filed in federal court against the Tompkins County legislature by an area resident and activist.


Late last year, Dryden resident Joanne Cipolla-Dennis filed a civil suit against the county legislature citing, among other things, “unconstitutional prior restraint” due to the rules that residents must adhere to while speaking during public comment periods of government meetings. Before speaking at a county meeting, residents are required to fill out a form, or “blue card,” that lays out the rules they agree to during public comment, including: three minute time limit; not raising their voice; not using lewd, obscene, profane, slanderous or libelous language or speak in a manner that would tend to incite a breach of the peace; not to speak about County personnel matters (including comments about the job performance of County employees, other than elected officials); after three minutes they will leave the microphone and yield the floor; and if they cause a disruption and are asked to leave they will.


The suit argues that four of these rules (not raising your voice, not using lewd language, not speaking about personnel matters, and agreeing to leave if asked) are unconstitutional under the First Amendment. Further, the suit argues that the form itself, and requiring residents to sign their name to it, is a violation of the Open Meetings Law and is an unconstitutional prior restraint.
The County of Tompkins, along with current Chair of the Legislature Martha Robertson, former Chair of the Legislature and current member Michael Lane, current member Rich John, and former members Peter Stein and Jim Dennis are all named in the suit in both their individual and official capacities.


Cipolla-Dennis has been heavily involved in local activist circles for environmental and LGBTQA rights, among others, for many years and has spoken to the legislature on numerous occasions in this capacity. In both January and February of 2014, before the current rules were enacted, she claims that she was told to stop speaking by members of the legislature while voicing concerns about a former Ithaca Police Department officer, Stephen Moracco, who was accused of using unnecessary roughness with a county resident who is gay. Her suit argues that the Legislature “lacks standing to preclude public discussion about ‘County personnel matters’ and ‘comments about the job performance of named County employees.’”


The rules of public comment were added to the Rules of the Legislature in June 2014 and were read to the full legislature and adopted in July 2014. According to her suite, three years later, in May of 2017, Cipolla-Dennis went to a County Public Safety Committee (hyperlinked to the May 18 Public Safety Committee minutes) (Audio of the meeting can be found here in two parts: Part 1, Part 2) meeting and refused to fill out a “blue card” and sign her name to it in order to speak during public comment. She was told by the chair of the committee, Rich John, that she could not speak unless she followed the policy. When Cipolla-Dennis refused to stop reading a prepared statement the meeting was adjourned and law enforcement officials were called to remove her from the chamber. The suit argues that by adjourning the meeting and calling the police, the members of the committee violated Cipolla-Dennis’ First Amendment right, and the threat of arrest has kept her from speaking before the legislature again.


It is her belief that she was being targeted in that May meeting because she is openly gay. While advocating on behalf of environmental causes and “straightening up” her appearance, Cipolla-Dennis said she was allowed to speak uninterrupted.


Now, with this lawsuit, Cipolla-Dennis wants the court to declare the Legislature Policy illegal and unconstitutional, prohibit the legislature from enforcing the policy, prohibit the defendants in the lawsuit from “intimidating, threatening and preventing Cipolla-Dennis from attending and speaking at County Legislature meetings and exercising her First Amendment rights,” award compensatory damages from all defendants and punitive damages from the individuals named in the lawsuit, and award reasonable legal fees and costs. Ideally, she would like a public apology from the legislature.


Cipolla-Dennis said she is willing to take this to court and does not want to settle. She feels that the way she was treated by the legislature, and the rules that it has in the public comment policy, will have a negative effect on groups like the gay community and other marginalized groups voicing their own concerns.


“When I began to go to the public safety meetings and talk about public safety and the fact that I had discovered that a police officer was still employed –[who] had targeted a lesbian, hurt her very badly, and that wasn’t looked at as a hate crime – that piqued my interest,” Cipolla-Dennis said. “So, I began to do what responsible American citizens do, they go to their elected officials who have power over public safety, in particular, to change those things. To make it a safe place for everybody to thrive, and I wasn’t finding that.”


When she spoke to members of the legislature, including her representative Martha Robertson, Cipolla-Dennis said she did not feel heard or understood when she expressed her concerns. When contacted for this story, Robertson said she could not comment on pending litigation.


After speaking with members of the legislature Cipolla-Dennis said she felt targeted. She stopped attending meetings at the legislature and feared retaliation from law enforcement.


“I was very, very traumatized on May 18 when they called the police on me,” she said. “That was the day that they– for the last time – refused to let me speak. And it was an assumption that I was going to say something that they didn’t like.”


Since the last legislature election, Cipolla-Dennis was hoping to see changes made to the blue cards with help from the new legislators but has been disappointed. It wasn’t until she was working on his campaign for District Attorney that Cipolla-Dennis spoke with Ed Kopko, who is representing her in this case, who told her that it was his belief that what the county was doing was unconstitutional. A year after the last election of the full legislature she filed the suit with his help.


Legislator Rich John, in response to a request for comment for this story, had this to say, “I believe that public comment is essential to helping the Legislature understand issues better. We really do want to hear what people think. But like any public body, we have to have a process to make sure we take turns and are respectful to one another, especially when we may disagree about something.”


After the initial filing, the county filed for a dismissal of the complaint, arguing that “the complaint clearly fails to state any legally cognizable claim.”
Kopko filed the response to the dismissal, which included making a motion for partial summary judgment (asking for a judgment in their favor) on March 5. The county response was put in on March 8. The case has a return date of March 22 but it is unknown if the judge in charge of the case will hear arguments from both sides or make a judgment based on the submitted materials. Both sides will be alerted to the judge’s decision within the next few weeks.


County Attorney Jonathan Woods said it is the county’s opinion that the legislature has the right to set reasonable rules on public comment.


“Those [rules] do not discriminate based on the content of what people are saying,” Woods said. “In other words, you can’t say ‘People can only speak for something’ or ‘People can only speak against something.’ You can limit the subjects on which people can speak.”


The rules set by the Tompkins County Legislature, Woods said, were far more generous than many other legislatures, some of which restrict public comment to only what is on the set agenda.

Correction: An earlier version of this story erroniously referenced the county blue cards as follows: not to speak about County personnel matters (including comments about the job performance of County employees, other elected officials). It has been corrected: not to speak about County personnel matters (including comments about the job performance of County employees, other than elected officials). We apologize for the error.

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VeraScroggins

thanks, to Joanne and Kopko for filing this suit. the restrictions of the blue card do sound overly restrictive and not appropriate considering our Constitutional rights and the Sunshine Law.

We need not be afraid of public comments and allow for free exchange of comments at public meetings.

My county in Pa. has a three minute limit but no sign-in sheet or card or topic limit. All the best with your lawsuit. And may more Freedom reign.

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