The Keene Sentinel’s Kyle Jarvis reports on “the City” and their newfound desire to mediate with Robin Hood of Keene‘s merry men and women. Our attorney, Jon Meyer, responds that we’re not negotiating – the issues in the case are fundamental principles of freedom. They are not subject to negotiation:
Trying to settle a lawsuit out of court between the city of Keene and a group known as “Robin Hood of Keene” looks to be tough, that group’s attorney said this week.
The “Robin Hooders” fill expired parking meters before city parking enforcement officers can write tickets for the violations.Last year, the city accused members of the group of harassing and intimidating the officers when they were performing their duties. It sought a 30-foot safety zone between the officers and activists. Keene officials also sought financial reimbursement because the officers weren’t able to perform their jobs properly; for counseling; and for costs because one of the officers quit and had to be replaced, the city said in a complaint.
Cheshire County Superior Court Judge John C. Kissinger Jr. dismissed the city’s complaints in December, citing free speech rights under the First Amendment.
City officials have appealed to the N.H. Supreme Court.
The court recommends resolution through mediation, according to Jon Meyer of Manchester, an attorney representing the Robin Hooders for free. But he’s skeptical that could be accomplished easily.
“I’m representing (six) individuals, certainly with some similarities, but also some differences,” he said. “How you would do a mediation with six individuals, I think would be pretty challenging.”
The six people are Kate Ager, James Cleaveland, Graham Colson, Garret Ean, Peter Eyre and Ian Freeman.
“Second … mediation is a matter of compromise,” Meyer said. “But when it comes to fundamental principle, in my mind that’s something that’s hard to reconcile with the idea of compromise.”
Attorney Charles P. Bauer of Concord, who is representing the city official, said he’s asked if they’re open to the mediation process, and is waiting to hear back from them and Meyer.
In the city’s appeal to the Supreme Court, city officials ask the justices to consider four questions, including:Whether a municipality can bring a legal action against a party to protect its public employees from “substantial workplace interference, harassment, and intimidation caused by private parties protesting government operations.”
Whether Kissinger erred in dismissing the complaint.
Whether Kissinger erred “in failing to balance” the parking enforcement officers’ rights to work free of the alleged actions of the defendants.
Whether public employees have “legitimate rights and interests in their public employment, worthy of protection by their public employer,” without such harassment.
“Respectfully, we think the Superior Court is in error on its rulings on the issues,” Bauer said this week. “I believe that all employees have certain rights, and I also believe that individuals have the right to protest. It should be a balancing of those conflicting interests that courts are required to engage in. I didn’t think there was a balancing of the interests (in Kissinger’s decision).”
Meyer said this week that the city officials’ claims have no basis or legal precedent.
“The basic claim that there’s some right on behalf of the city to sue private citizens for interfering with the contractual relationship with employees is not only without legal precedent, but it also offends basic principles of constitutional freedom,” he said.
Especially in the case of public employees, “people have a right to communicate positively and negatively about their feelings, how that person is carrying out the job, and the job itself,” he said.Both attorneys said they’re paying attention to a case heard recently by the U.S. Supreme Court that questions the constitutionality of a Massachusetts law requiring 35-foot buffer zones for protesters at abortion clinics.
“I think it’s certainly something worthy of keeping an eye on, and it does raise some similar issues, although in a different context,” Bauer said. While different states have different laws regulating clinic protests to either a fixed or floating buffer zone, “in our case, it’s a bit different, because the (officers) are always moving, whether talking to citizens or crossing the street or checking the meters.
“Certainly, I think all the legal interests are watching the Supreme Court case,” he said. “No predictions.”
Meyer said he is also paying attention to the case.
“The U.S. Supreme Court has made it very clear that protesters have a right to express their concerns and opinions to subjects of their protest, subject to very limited regulation,” he said. “Even if those protests may be perceived to be misguided, harassing or whatever else.”
If mediation cannot be agreed upon, City Attorney Thomas P. Mullins wouldn’t expect oral arguments to be heard before July, with a decision coming down in September, he said.Kyle Jarvis can be reached at kjarvis@keenesentinel.com or 283-0755. Follow him on Twitter @KJarvisKS.
