A Notice of Claim has been filed with the Town of Gilbert after Mayor Brigette Peterson once again denied residents the right to be heard. The Claim focuses on Peterson’s actions at the Gilbert Town Council meeting on Tuesday, September 20, 2022.
The claim was filed by attorney Tim La Sota on behalf of Gilbert residents, Dr. Brandon Ryff, Ryan Handelsman and Joanne Terry.
A notice of claim must be served against a public body at least 60 days before a lawsuit can be filed in state court in accordance with Arizona Revised Statutes Section 12-821.01. The law requires “sufficient details” of the alleged wrongdoing as well as a specific monetary demand by which the claim can be settled without further legal action.
According to the Claim “Dr. Ryff, Mr. Handelsman and Ms. Terry will give the town of Gilbert a complete release of this claim for the sum certain of $1, provided that the Mayor and the town of Gilbert issue an official apology and the Mayor agrees to take remedial First Amendment training classes, so that she may be informed of the importance of the First Amendment and what actions a municipal Mayor can take, and under what circumstances, during a meeting, and what actions would constitute a First Amendment violation, as her actions here do.”
During the meeting in question, residents showed up with signs printed with the phrases “Stop Lying” and “Don’t Mesa My Gilbert.”
Peterson ordered a Gilbert police officer to confiscate the sign Ms. Terry was holding, instead she opted to put the sign down and the police left her alone. However, later in the meeting, Ryff, Handelsman and Terry all stood in the back of the room holding their signs up, at which point Peterson interrupted the meeting and ordered the police to remove them from the meeting itself.
Peterson later attempted the defend her actions, claiming that “she could not read the content of the signs from the 70’ distance between herself and the [signs],” La Sota stated in the Claim that her comments appear “to be a contrived attempt by the Mayor to preemptively argue that her actions of restricting political expression against the plaintiffs were therefore content-neutral restrictions. This is clearly not the case—the signs were readable by anyone on the dais. The Mayor recognized the signs and she knew the message the signs contained. The Mayor’s explanations and excuses are desperate attempts to excuse her unconstitutional actions.”
This isn’t the first time Peterson has appeared to stop individuals from exercising their First Amendment rights. In 2020, Elizabeth Harper, who has served as Chairman of Gilbert’s Human Relations Commission and is a Republican Precinct Committeewoman, said Peterson Ms. Harper that she could not run for council, “because you’re black.”
Gilbert’s Peterson Tells Black Conservative Community Member She Can’t Run For Office
Notice Of Claim:
Just prior to the Gilbert Town Council held on Tuesday, September 20, 2022, various Gilbert residents provided approximately 100 signs to meeting attendees who requested one, as they were about to enter the building.
All 100 signs were 6” x 24” in size, 50 of which contained the phrase “Stop Lying” and the other 50 signs contained the phrase “Don’t Mesa My Gilbert.” Residents were not restricted from taking their signs into the auditorium. However, at the start of the meeting, Vice Mayor Aimee Yentes asked that meeting attendees not wave any signs around.
Due to limited seating, Gilbert resident Joanne Terry was standing at the back of the room where she silently and in a completely stationary manner, held her 6” x 24” sign containing the phrase “Stop Lying.” Gilbert Mayor Brigette Peterson interrupted the meeting and ordered the police to remove her sign. Ms. Terry set it down and the police did not confiscate her sign.
During his 3 minutes of allowed time for the communications from citizens segment, Mr. Handelsman stated to the Mayor and Council that there is no statute or code that would prohibit silently displaying a sign and that this appears to be free speech, which is protected by the First Amendment. Mr. Handelsman then returned to his seat.
Because there was no published rule, code or law prohibiting a person from silently holding a sign, Dr. Ryff, Mr. Handelsman and Ms. Terry each decided to silently and without motion, hold their signs. The Mayor halted the meeting and ordered the police to remove Dr. Ryff, Mr. Handelsman and Ms. Terry from the room. The police escorted them out of the meeting without incident.
Under the law, the Town may apply certain free-speech restrictions regarding time, place and manner. However, courts have also held that those restrictions must be reasonable, consistently enforced, and fall within constitutional parameters. The First Amendment to the United States Constitution ensures that “debate on public issues…be uninhibited, robust and wide-open.” New York Times v. Sullivan, 376 U.S. 254 (1964). It is also well- established that “Citizens have an enormous First Amendment interest in directing free speech about public issues to those who govern their city.” White v. City of Norwalk, 900 F.2d 1421 (1990).
Courts have also recognized the importance of a governing body’s need to actually govern, and municipalities are not required to “grant access to all who wish to exercise their right to free speech on every type of government property, at any time, without regard to the disruption caused by the speaker’s activities. Even in a democracy, the government need not tolerate actual disruptions of government business.” Walsh v Enge, 154 F Supp 1113, 1119 (D. Oregon 2015) (quoting New York Times, 376 US at 254.
In recognition of both the First Amendment rights of citizens to uninhibited, robust and wide-open debate on public issues and the practical need of a governing body to actually govern, a Town Council meeting is considered a limited public forum. In a limited public forum, the government may moderately limit expressive activity through time, place and manner restrictions, so long as restrictions are both viewpoint neutral, equally and consistently enforced, as well narrowly-tailored to meet the needs of the governing body to conduct its business, free of actual disruptions.
In 2015, the United States Supreme Court ruling established that Gilbert may not regulate political signs based on content alone. Reed v. Town of Gilbert, 576 U.S. 155 (2015).
Gilbert finds itself before the court for doing the exact same thing once again. We argue that during the September 22, 2022 Council meeting, Gilbert unlawfully restricted the plaintiffs’ political signs, not with reasonable, consistently and equally applied, content- neutral limitations, but in an unreasonable, inconsistent and unequal manner, clearly motivated by content-based bias. Furthermore, we assert that Gilbert’s Mayor abused her position and power as a public official to retaliate against known political foes Dr Ryff and Mr. Handelsman.
During the communications from citizens segment of the Council meeting previous to the September 22, 2022 meeting, Dr. Ryff was critical of the Mayor and at one point stated “everyone knows, the Mayor struggles with the truth.” Then, at the very next meeting, 50 ‘Stop Lying’ signs show up with essentially the same message. We contend that the Mayor attributed Dr. Ryff to be responsible for the message and mass production of the signs and then abused her position as Mayor to violate Dr. Ryff’s rights in retaliation.
It is hardly a coincidence that just minutes after Mr. Handelsman addressed the Mayor and Council and was critical of the Mayor ordering the police to remove a citizen’s sign earlier in the meeting, that the Mayor would retaliate against him in the exact same way. The Mayor injured Dr. Ryff by enacting unreasonable restrictions, which were also not content neutral or necessary. Dr. Ryff’s rights were violated by a vindictive Mayor who seized the opportunity to retaliate against him for years of political opposition and for having filed ethics complaints against her in the past.
As evidenced by a photo taken during the September 22, 2022 meeting, published in the Gilbert Sun Newspaper, seated directly next to Mr. Handelsman was a gentleman displaying a “Don’t Mesa My Gilbert Sign,” which was propped up by a bottle of water and displayed on his tabletop. This sign being displayed by this person was not critical of the Mayor, and unlike Dr. Ryff and Mr. Handelsman, whose signs were critical of the Mayor, the person displaying his sign apparently has no negative history with the Mayor. In stark contrast to the extreme manner of restriction applied to Dr. Ryff and Mr. Handelsman by the Mayor, this person was allowed to continue displaying his “Don’t Mesa My Gilbert” sign for the duration of the meeting.
There was no actual disruption caused by Dr. Ryff and Mr. Handelsman. In fact, until the Mayor decided to stop the meeting and cause a mass spectacle by having Dr. Ryff and Mr. Handelsman removed by the police, audience members were completely unaware, and nothing was impeding the ability of the meeting to proceed. It was the Mayor who created an actual disruption by allowing her temper and ego to take over, overreacting to something she could have simply ignored and was prohibited by the Constitution from squelching.
Upon ejecting Dr. Ryff and Mr. Handelsman, the Mayor stated that we are “going back to the rules of decorum”. Assuming she is referring to Robert’s Rules of Order, it appears the Mayor either does not understand Robert’s Rules of Order or these are “rules for thee and not for me.” In fact, during the August 3, 2021 meeting, the Mayor and other Councilmembers went on record stating that the Council does not follow the town code or Robert’s Rules.
The Mayor, in the August 3, 2021 meeting, also stated “I like to follow rules…when I found out that we were not following the rules in place, I wanted to make sure we did.” Interestingly, as part of the conversation during this same Council meeting, Councilmember Hendrix pointed out that even though the town adopted Robert’s Rules of Order, Council has never followed them because they are designed for civic groups and private clubs, adding that it was impossible for the town to function under those procedures.
To summarize, the Mayor claims that the Council does not follow the rules and that she wants to follow them. The reality is that she is to apply her own rules, and of course the rules depend on the situation. The reality is also that the Town of Gilbert Council has not, does not, and never has followed real rules of procedure.
Certain persons silently holding signs in the back of the room may have been a distraction to the Mayor, but not every distraction is necessarily a disruption and not every disruption is an actual disruption which impedes the ability of the Council to do its business. In the case of the Mayor ejecting Dr. Ryff and Mr. Handelsman, the Mayor chose to take something that she could have ignored and instead stopped the meeting and became the disruption.
Because the requirement is that an actual disruption of the proceedings occur, it is not appropriate to remove a person because of any type of expression that does not interrupt or halt the meeting itself. In the context of ruling that a city council meeting attendee could not be removed from a meeting for mocking the council with a Nazi salute, the Ninth Circuit has explained it this way:
In this case, the City argues that cities may define “disturbance” in any way they choose. Specifically, the City argues that it has defined any violation of its decorum rules to be a “disturbance.” Therefore, it reasons, Norwalk permits the City to eject anyone for violation of the City’s rules—rules that were only held to be facially valid to the extent that they require a person actually to disturb a meeting before being ejected. We must respectfully reject the City’s attempt to engage us in doublespeak. Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption. The City cannot define disruption so as to include non- disruption to invoke the aid of Norwalk. Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010).
In her statement to the media, the Mayor claimed that “she could not read the content of the signs from the 70’ distance between herself and the [signs],” in what appears to be a contrived attempt by the Mayor to preemptively argue that her actions of restricting political expression against the plaintiffs were therefore content-neutral restrictions. This is clearly not the case—the signs were readable by anyone on the dais. The Mayor recognized the signs and she knew the message the signs contained. The Mayor’s explanations and excuses are desperate attempts to excuse her unconstitutional actions.
In contrast to how the Mayor treated her political foes based on the negative content of their signs, the Mayor apparently has no problem with political friends or anyone holding positive signs during the meeting. Residents holding signs containing supportive and positive messages during meetings appear to be acceptable to the Mayor, but once anyone holds a sign that is negative or critical of her or the government, it is now a disruption that requires the police to remove the political message, and its messenger, whom the Mayor finds distasteful. This is a violation of the Constitution.
Now we have one final development, which is the staff’s attempt to cover for the Mayor with new so-called “Rules of Decorum and Order.” These new rules are hopelessly broad, for a variety of reasons. But perhaps the most instructive illustration is how the rules bar any and all “handouts” anywhere “inside the Council Chambers.” This was a hasty attempt to ratify the Mayor’s conduct, and it shows. The rules are unconstitutional to boot.