Rotkin to Defend City Attorney Barisone on Free Radio Sunday

Bernard Klitzner and I gave this speech at City Council last Tuesday.

Vice-Mayor Emily Reilly interrupted Klitzner in the middle of his speech objecting to his characterizing Barisone as "incompetent". Rotkin replied that he didn't agree but would allow a member of the public to use the word.

Reilly's interruption broke up Klitzner's presentation, and Mayor Mathews refused to restore the time lost or criticize Reilly's disruptive interruption. Had someone from the audience done this, she or he would have been warned or told to leave the chambers under threat of arrest.

After the speech, Council unanimously rubberstamped his 3/4 of a million buck contract.



Another Year of John Barisone?
Speech to the Santa Cruz Community and City Council 7-11-06

I’m a activist for the homeless. Aren’t we tired of Mr. Barisone defending unconstitutional laws that he himself has written. He then profits from his own incompetence by spending our money to defend these bad laws against civil lawsuits. Then we pay him an additional $250,000 beyond the original $500,000 yearly contract, as we did last year.

Mr. Barisone lost the recent lawsuit against the homeless man hassled by police, John Maurer. That cost the city $30,0o0 alone in money paid out to Maurer and his attorneys. Without even counting how much we paid Barisone to go to court.

How much did the city spend on that lawsuit? Where are those figures? Why did Mr. Barisone refuse to rewrite the law when John Maurer’s attorney offered him that choice? Was it because he was so embarrassed that it was written badly in the first place? Why did Mr. Barisone’s office misinform the courts on three occasions about what that law actually said? Because the law, as written, just couldn’t stand constitutional muster, it seems.

I understand this City Council has no interest in protecting the average homeless person. It has Barisone-written laws that criminalize or severely restrict sleeping, sitting, peaceful sparechanging, and political tabling. That’s apparently what this Council wants. But does it also want to spend a lot of money on a city attorney that doesn’t do a good job defending those laws?

The Sleeping Ban was-found unconstitutional by the 9th Federal Court of Appeals in Los Angeles recently. That means a whopper of a lawsuit coming our way. To protect and perhaps get past damages for the harm Mr. Barisone and your police have inflicted on the homeless.

Do you really want Mr. Barisone defending the city here? Don’t you need someone who doesn’t write bad laws with holes in them? We’ve seen elderly and poor people in mobile homes losing rent control. Because Mr. Barisone--while Mr. Rotkin was on the Council--wrote the bad laws that didn’t protect the De Anza tenants and the Clearview Court tenants.

I’d like City Council to delay its rubberstamping of Mr. Barisone’s budget until we get some information.

First, how much money has the city lost in lawsuits in the last five years when it was sued and Mr. Barisone spent our money taking it to court?

Second, how much money did the city pay John Barisone above and beyond his normal contracted $500,000 per year in these cases?

Third, what other law firms has the city interviewed to get some idea of what our alternatives are? Has this EVER been done?

Fourth, why has the city not hired a salaryed city attorney instead of paying Mr. Barisone as a private lawyer. For a city our size, this would be considerably cheaper.

Then, there, would be no incentive for the kind of delays and unnecessary lawsuits that Mr. Barisone has been handsomely paid to defend in court.

Naturally you’re going to ignore me and rubberstamp Nr, Barisone---as you do, year after year. So I must turn instead to the community: Members of the public, how long will you stand for this?

from Bratton Oct 4-10/05 at http://brattononline.com/index.php?p=132

RUBBER STAMPING JOHN BARISONE. Late breaking reports say that instead of an annual review of John Barisone's work and performance as the Santa Cruz City Attorney, which happened every September, his pay, which is about $1.5 million, has now been made a line item as part of the City Budget.

No more performance evaluations, just a rubber stamping. Sources say that our city could get the same amount of work done by an in-house staff and it would cost less than one half million. If you're still talking to anyone on the City Council see what they think. NO, make that ask them what they'd be willing to stand up for. We need those extra dollars Barisone is charging us.


earlier (April 20-26/05) in the same column Bratton wrote:
[http://brattononline.com/index.php?p=108]

SAVING CITY BIG MONEY. Thomas Leavitt sent an email outlining what his plan was way back in 2002, when he ran for City Council. Here's his own excerpt from his platform page. He's talking about "in-sourcing" John Barisone's city attorney services.

[quoting Leavitt]
"During the budget hearings, the "progressive" City Council, without a single word of official protest, unanimously approved a renewal of City Attorney John Barisone's contract for services (he is not a City employee, and in fact, double-dips by acting as City Attorney for the City of Capitola as well) despite the fact that he raised his rates.

"They did this after wasting two hours of the public's time debating how they could cut a total of $28,000 out of their own budget (much of which normally is not spent in the first place). They then proceeded to inform the Citizens Police Review Board (which has finally started to get some teeth under the leadership of Mark Halfmoon) that they needed to restructure themselves to reduce their cost of operation in half.

"Given that the City has spent over $200,000 in legal fees paying Barisone to defend its mobile home rent control ordinance and nearly $300,000 to defend against a lawsuit by the Blue Lagoon (just two cases among many), and $13,000 (to date) defending itself against Robert Norse's lawsuit over violations of his civil rights (outspending litigants by a ratio of 10:1 in both of these latter cases), I suggest that careful consideration of "in-sourcing" this function would be worthwhile.

"Why didn't we hear a single suggestion to this effect from any of our current City Council members? It is time for a change!"

Unconstitutional Panhandling law to be re-written Tuesday
Draconian law vulnerable for more lawsuits, activists say

by Becky Johnson

May 21 2006

Santa Cruz, Ca. -- Only after John Barisone, attorney for the City of Santa Cruz received a 30-page brief in defense of Maurer, did he decide to drop the charges and avoid a constitutional challenge of the law. Since then the City has spent thousands of dollars arguing in federal court claiming the law is constitutional. The Federal Judge disagreed and sided with Mauer. Arrested twice for violating the City's agressive panhandling ordinance Maurer was sitting quietly with a bucket seeking spare change when he had been charged for "using profane or abusive language" while soliciting.

Barisone wrote a letter to Judge Irwin Joseph saying that Maurer didn't break the law because his speech had not been specifically directed at the people from whom he was seeking donations.

Yet John Maurer's attorney, Paul Sanford argued that language to that effect had been specifically deleted by the city council in 2002, primarily so police COULD ticket a person who was sitting quietly seeking donations for "agressive solicitation." In order to persuade the Judge that the ordinance was NOT unconstitutional, Assistant City Attorney Wendy Morgan mislead the court claiming that this was a requirement of the law. Morgan proceeded to quote to Irwin Joseph the "old" ordinance which was more narrowly tailored to only abusive interactions between the defendant and those from whom he sought donations.

"What the law now allows is the ability to ticket someone who sits quietly seeking spare change," Kate Wells commented Sunday on Free Radio Santa Cruz 101.1 FM.

Paul Sanford pointed out to Judge Joseph that Morgan had read the wrong ordinance. Joseph acknowledged he had been given the wrong ordinance, but when Sanford argued that the court should proceed with the trial by first examing the constitutionality of the law. Joseph declined. In order to avoid having to rule on the constitutionality of the case, moved to dismiss, forcing Sanford and Maurer to literally make a "federal case about it."

The city settled with Maurer earlier this month, paying him $5,250. Kate Wells and Paul Sanford get to split $25,000. The settlement also required the city to amend its panhandling law in regard to the use of profanity so that it is no longer unconstitutional. This Tuesday the council has scheduled a first reading of the revised ordinance.

Kate Wells says she has taken a lot of heat for her share of the settlement by citizens concerned about the financial fix the City is currently in. "I'm sure John Barisone's charges to the City were equal to ours."

She says that she and Sanford made several attempts to resolve the Maurer case without filing a federal suit. Barisone was unmoved. But then, there is more money in it for him if he doesn't settle. Most people in Santa Cruz are unaware that the $500,000 contingency fee the City pays his office annually only pays for his presence at City Council meetings. All other expenses, including the hours he bills the City in court are at additional cost to the City.

During the federal case, there were TWO attornies involved, George Kovacevich and Jeff Barnes, who Wells describes as the wet-behind-the-ears attorney to whom Barisone assigned the case. Wells described that at trial, Barnes tried to argue that it is the "custom" of the police to only city those who are directing profanity at those from whom they are seeking donations, only to be scoffed at by the Judge. "He basically said How can you say this is the custom when the council specifically removed language to that effect?" Then she added "I have nothing but praise for Jeff Barnes. He was hood-winked. It's clear they did this precisely so they could ticket the peaceful behavior of John Maurer sitting quietly with a sign."



Past Barisone Blunders:

--- Blue Lagoon lawsuit re: police harassment by the SCPD --cost to city $500,000 plus
--- DeAnza/Clearview Court rent control abandonment --- where a ruthless out of state corporation seized the life savings of longtime residents and seniors by capitalizing on a flaw in the rent control ordinance written by John Barisone
--- Settled a suit for several thousand dollars with street musician, Michael True, for having copies of his own CD in his guitar case while performing under another Barisone law
--- defended suit against the City when homeless activist, Robert Norse was arrested for obstructing a 20-ft sidewalk with a 2 1/2 foot cardtable costing the city thousands of dollars. Norse was paid a settlement $5000 for the false arrest
--- Barisone has written laws against hackysacking, bubble-blowing, sitting within 14' feet of a building, the "shoulder tap" law, the youth curfew,the "Move-along" law and has prosecuted homeless people on littering charges for feeding the birds
--- Barisone wrote the 5-Minute Rule which limits public comment on consent agenda items to five minutes total, no matter how many items on are on the agenda
--- Spent thousands of dollars prosecuting the author for using sidewalk chalk on a sidewalk
--- Spent thousands of dollars defending against the right of homeless people in Santa Cruz to avail themselves of the necessity defense for sleeping or camping violations with the Camp Paradise case
--- Joined the City with an Amicus brief on a case which supported the right of police torture suspects
--- prosecuted a 76-yr-old homeless woman for tresspassing at the National Guard Armory
--- Barisone is pushing the 15-Minute Law which, if passed Tuesday, May 22, 2006 will make it a crime to exist in a parking garage or selected parking lot for longer than 15-minutes or be cited for tresspassing

Posted by lioness (Member # 1649) on May 21, 2006, 01:53 PM (at http://forums.santacruzsentinel.com/cgi-bin/forums/ultimatebb.cgi?ubb=print_topic;f=1;t=003463)
 
WOW - I'm gone for a while and look what happens. Do you guys believe everything you read in the Sentinel? The article you have referred to - headlines in Friday May 19 Sentinel - is a pack of lies. Please note that although the reporter interviewed City Attorney Barisone and Councilmember Rotkin, she did not bother to contact me or my co-counsel Paul Sanford. Fair and balanced journalism?

Let me tell you what really happened in this case. John Maurer was harassed numerous times by the SCPD and as a result, he was sitting quietly with a sign asking for spare change and in his hat he bore a small sign that read "F*ck the Pigs". Now even you hardcore homeless haters have to admit that he has the right to express his personal opinion about local law enforcement.

As a result of this small sign in his hat, he was arrested twice by two different SCPD officers for "aggressive solicitation" under the municipal ordinance. It is an UNDISPUTED fact that Maurer did not speak a word to anyone except to thank people for a donation or wish them a good day.

The city attorney DID NOT drop the charges but instead actively prosecuted him through several court appearances. It was not until Paul Sanford agreed to represent him and wrote a 30 page brief to the court challenging the law as unconstitutional that the city attorney finally wrote a letter to the judge asking him to dismiss the case because Maurer had not really broken the law because the profanity was not directed at anyone.

The problem is that Maurer did violate the law as it was written because the requirement that it be directed at a particular individual had been specifically deleted from the ordinance in 2002 - prior to Maurer's arrests.

At the court hearing, Assistant City Attorney Wendy Morgan went so far as to quote to the judge the OLD ORDINANCE which did require that the abusive language be directed at a particular individual.

When Sanford pointed out to the judge (Irwin Joseph) that this requirement had been specifically removed from the law by the City Council and that Maurer had, in fact, violated the ordinance as written, the judge acknowledged that the city attorney had quoted the wrong ordinance but then proceeded to dismiss the case anyway so he would not have to reach the issue of the constitutionality of the law as it was written - thereby paving the way for the SCPD to continue to arrest Maurer for violating the ordinance by wearing his hat with his opinion of the SCPD.

Thereafter, Sanford and I repeatedly tried to get the City Attorney to address the infirmity in the law voluntarily - we explained to him that we did not want to have to file a lawsuit and begged Barisone to cure the problem so we would not have to.

The City Attorney repeatedly refused to do anything about it. (And guess what - the City Attorney's contract does not cover such litigation - yes they get paid on an hourly basis to defend such actions. You might want to inquire as to how much the Santa Cruz City Attorney's office charged the city to defend against our action challenging the constitutionality of the ordinance in federal court.)

After our many attempts to get the city to voluntarily change the law failed, we finally filed an action in Federal court. The City Attorney's office then filed a motion to dismiss Maurer's case wherein they again cited the old ordinance to the federal judge as if it was the current ordinance! (If you don't believe me, I have the pleadings to prove it and will be happy to provide them to you.)

Federal Judge Jeremy Fogel, after acknowledging that the City had cited the pre-amendment (wrong) ordinance, ordered Assistant City Attorney Jeff Barnes to go back to the City Council and get them to change the law because it was unconstitutional as written and as enforced in the Maurer case. After numerous appearances and settlement conferences, the city finally came up with the now proposed wording.

With the numerous court appearances, settlement conferences, and research and brief writing, Paul and I have more than 250 hours into this case - the $25,000 that will be split between us represents less than $100 an hour for the time spent on this case. Maurer was arrested in May 2003 - we have been working on this case for 3 years! You try to find an attorney for less than $100 an hour. I bet the City Attorney's office charged the city a lot more than $100 per hour for their work on this case - and all of it was unnecessary if they had just voluntarily corrected the ordinance.

Now you are probably saying that this is "much ado about nothing" (to continue with the Shakepeare theme). Well, in my mind, a lot of soldiers have died to secure, defend and preserve our First Amendment rights. The First Amendment is sacred to me and I'm sorry if you disagree. The government does not have the right to tell me I cannot voice my opinion about law enforcement or anything else for that matter. Nor did they have the right to make it illegal for Mr. Maurer to wearing the sign in his hat.

As for the suggestion that I am just another money- grubbing attorney, the Santa Cruz County Bar Association awarded me the Pro Bono attorney of the year award in 1997 for outstanding service to the community. I continue to do extensive pro bono work - I'm probably the poorest attorney (monetarily) you will ever meet or know. I do consider myself to be very rich in spiritual rewards which is the thing that means most to me.

So there!
Kate Wells