1

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOSEPH WALSH, ) 3:15-cv-01666-SI 

) 

 Plaintiff, ) 

 ) 

 vs. ) December 21, 2015 

 ) 

BRYANT ENGE, et al., ) 

) 

 Defendants. ) Portland, Oregon 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE MICHAEL H. SIMON 

UNITED STATES DISTRICT COURT JUDGE 

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Case 3:15-cv-01666-SI Document 32 Filed 01/11/16 Page 1 of 36
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APPEARANCES 

FOR THE PLAINTIFF: Joseph Walsh, Pro se 

 7348 SE Division Street 

 Portland, Oregon 97206 

 

FOR THE DEFENDANTS: David Landrum 

 Daniel Simon 

 1221 SW Fourth Avenue, Suite 430 

 Portland, Oregon 97204 

COURT REPORTER: Dennis W. Apodaca, RDR, RMR, FCRR, CRR 

 United States District Courthouse 

 1000 SW Third Avenue, Room 301

 Portland, OR 97204

 (503) 326-8182 

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(December 21, 2015) 

P R O C E E D I N G S 

(Open court:)

THE CLERK: Your Honor, this is the time set for

argument in civil case 15-1666-SI, Walsh versus Enge, et al.

For the record, we have Mr. Joseph Walsh appearing, present pro

se. Counsel for defendant, would you please identify yourself

for the record.

MR. SIMON: Good morning, Your Honor. Dan Simon for

the City of Portland.

MR. LANDRUM: David Landrum, one of the city

attorneys, for the City of Portland also.

THE COURT: All right. Good morning, everyone. Good

morning, Mr. Walsh. I think the last time I saw you in this

courtroom was the early part of 2014 when you gave testimony in

the U.S. versus City of Portland matter; am I correct?

MR. WALSH: Yes, Your Honor.

THE COURT: Welcome back, sir.

MR. WALSH: All right.

THE COURT: If you want, there should be fresh water

in the pitchers for both sides and glasses.

I have read all of the materials. We have pending

cross-motions for summary motion on Mr. Walsh's complaint. It

doesn't matter to me who begins the oral argument. It is my

intention to give both sides a full and fair opportunity to be

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heard on their arguments. I do have some questions to either

Mr. Simon or Mr. Landrum or Mr. Walsh. Any preference on who

goes first?

MR. WALSH: I have no preference.

THE COURT: Okay. Mr. Simon, do you?

MR. SIMON: We don't have a preference either,

Your Honor. I am happy to go first.

THE COURT: All right. It is the defendants' motion

for summary judgment. We have plaintiff's cross-motion, you

may proceed.

MR. SIMON: Thank you, Your Honor. My name is

Dan Simon. Mr. Landrum is here to answer questions. I will be

arguing the motion on its merits today. The City has moved for

summary judgment on multiple grounds. The first ground is

justiciability; the second is that this conduct is not 

protected by the First Amendment; and third, the City's

exclusion process is a permissible exercise of governmental

authority under the First Amendment.

To start with justiciability, this case arises out of

a 60-day exclusion from City Hall that the City issued on

July 15, 2015 for Mr. Walsh. That exclusion expired in

September of 2015, and Mr. Walsh is currently able to appear

and testify before City Council at City Council meetings

without restrictions.

Our justiciability argument is that a decision by

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this Court would not have any effect on Mr. Walsh's current

right to appear and testify before the City Council. I want to

emphasize that our justiciability arguments encompasses both

mootness and standing.

Regarding mootness, we understand that there is an

exception that a case is capable of repetition, that it is

being reviewed or may receive a decision, but the burden is on

Mr. Walsh to show that this case fits into the cases of

repetition exception. For Mr. Walsh to argue that he will be

subjected to an exclusion in the future, he must implicitly

concede that he will disrupt future City Council meetings. The

fact that his case relies on speculative future events means he

hasn't shown a concrete injury based on present facts, which is

an essential element of standing.

Your Honor, in every incident in the record, which we

have provided to you, Mr. Walsh had an opportunity to testify

before the Council so long as he stays on message. At no point

was he prevented from speaking to Council at those meetings on

the items that he had testified on. It was only when his

communication escalated beyond the subject of his testimony

into disruptive behavior that his testimony was then barred.

His disruptive behaviors, as we have shown in the record,

through the videos and transcripts --

THE COURT: And I have watched the videos.

MR. SIMON: Thank you, Your Honor. So I won't go

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into detail about what's on the video since Your Honor has seen

the record.

These outbursts, Your Honor, are not protected by the

First Amendment because they don't carry any standalone

message. The First Amendment protects conduct that is intended

to convey a particularized message. It is the City's position

that there is no message in making a scene and causing the City

Council meeting to come to a halt. That is simply an

amplification of the message that Mr. Walsh is trying to

portray, and that doesn't carry any First Amendment protection.

If Your Honor gets past those first two arguments,

then we get to --

THE COURT: Let me ask you a question about standing,

because you didn't really specifically talk about standing that

I heard. Don't we need to measure standing at the time the

complaint was filed, and the time the complaint was filed he

had standing to challenge the 60-day order, doesn't he?

MR. SIMON: Your Honor, I will defer to Mr. Landrum

on this question.

MR. LANDRUM: Let me see, Your Honor. The complaint

looks like it was filed on September 15th, and we are saying

that it was issued on the 17th. So it expired 60 days later in

November, and so I think that's correct. I think it was in

place when he filed his complaint.

THE COURT: I think so too. I don't think there is

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any merit to the standing argument.

MR. SIMON: Thank you, Your Honor.

THE COURT: You may proceed.

MR. SIMON: Then talking about the First Amendment

argument, the authority for the City's exclusion process is

provided by two sections of Portland City Code. Section 315.20

provides that persons in charge may exclude any person who

fails to comply with the rules of conduct for city buildings.

Section 5.36.115 designates persons in charge of city property

within each commissioner's assigned bureaus and departments,

and so the two individually named defendants in this case,

Mayor Charlie Hales, is commissioner in charge of Office of

Management and Finance, which has jurisdiction over City

properties, and Mayor Hales has designated Bryant Enge as the

person in charge for the purpose of exclusions.

The notice for exclusions is provided in the Rules of

City Conduct for city properties, which states that a person

can be excluded for various periods of time for violating the

rules of conduct.

THE COURT: I didn't follow that. I thought it said

that they can be excluded for any period of time up to and

including permanent exclusion. Am I mistaken?

MR. SIMON: That's correct, Your Honor. I meant

various periods of time since that -- we can exclude for a

length of time up to a permanent exclusion.

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THE COURT: Does the plaintiff have the ability, even

though he was only excluded for 60 days, to challenge the

provision in the ordinance that would allow the City to

challenge on a permanent basis?

MR. SIMON: He does, Your Honor. He has the

opportunity to appeal an exclusion to the City's Code Hearings

Office.

THE COURT: No, that's not what I meant. I

apologize. That's my mistake.

Does he have the opportunity to make the argument in

this court, in this hearing, on these motions that, even though

he was only excluded for 60 days, and that's serious enough,

and we will talk about that in a few minutes. But in theory,

the ordinance gives the City the right to exclude someone

permanently. Does he have the ability to challenge that in

this proceeding, in this litigation, and if so, how can the

City possibly defend its right to give a permanent exclusion? 

MR. SIMON: I believe he does have the opportunity to

challenge that in this courtroom, Your Honor.

THE COURT: So maybe you will get to it when we get

to the reasonableness of the restriction, but I'm looking at a

couple of questions. One is, is a 60-day restriction

reasonable? By the way, I'm going to start out -- I don't

think Mr. Walsh disagrees with this, but when it is his turn to

speak, he can confirm or deny. I think he even agrees that if

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a person is being actually disruptive during a hearing, the

presiding officer or someone delegated with authority can

remove someone who is actually being disruptive, and that

doesn't violate the First Amendment.

So the real question here, point one, does the

ordinance, as applied here, where there was a restriction that

he may not return to a City Council meeting for 60 days, even

if he is not going to be disruptive, does that violate the

First Amendment? Relatedly, the second question is, is the

ordinance facially invalid because it allows, not only for

future exclusions such as here for 60 days, but also in theory

up to a permanent exclusion? Those are some of the things in

my mind. I would be interested in your perspective.

MR. SIMON: Thank you, Your Honor.

To address the first question, I will refer to the

case of Reza v. Pearce from the Ninth Circuit, which I believe

is the most recent comprehensive statement of exclusion laws

and exclusion procedures within the Ninth Circuit.

THE COURT: I think you are right.

MR. SIMON: Reza v. Pearce is a case where an

individual who is viewing an Arizona State Senate proceeding

from an overflow chamber was applauding and booing during the

Senate proceeding. He was identified by Senate staff as an

individual that was disrupting the hearing. That information

was then conveyed to the Arizona state senator. The Arizona

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state senator then gave the disruptive individual an indefinite

exclusion from the Arizona state Senate building.

Later the Arizona state Senate proffered rules that

suggested that exclusions would be kept to two weeks, but it

wasn't clear in Reza v. Pearce whether that applied to the

plaintiff in that case. Reza, in the City's view, represents

an extreme example of an exclusion policy at work. The Ninth

Circuit in that case identified a factual question over whether

or not the plaintiff had actually disrupted the proceeding.

The Government in that case had not shown that there

was a legitimate concern that the plaintiff would disrupt

future meetings, so the Government can not justify the lengthy

exclusion of the plaintiff in that case.

THE COURT: Didn't the Ninth Circuit go even further,

in particular, on page 506 on that case, the majority opinion

states in the third paragraph under (2), Ninth Circuit law at

the time of Senator Pearce's conduct. In that third paragraph,

the Ninth Circuit writes in the final sentence, "No cases in

the Ninth Circuit or otherwise even remotely suggest that

Norse's principle can be inverted to indefinitely ban an

individual from a government building based on a single

disruption of a hearing." 

What do I make of that?

MR. SIMON: Your Honor, I believe that statement

addresses a situation such as the Court faced in Reza.

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However, I do believe also that our situation is

distinguishable.

THE COURT: Because there were multiple instances?

MR. SIMON: One, because there were multiple

instances; two, because the Mayor who issued these exclusions

was a direct witness to all of these instances. I also want to

point to a quote in the dissent of Reza, which is found at page

510, which is, "After reviewing our law at the time, the

majority concludes that 'no cases in the Ninth Circuit'" --

THE COURT: Slowly. When you read out loud from

text -- we all have this problem -- we tend to read too

quickly. When we have a court reporter, reading too quickly

jeopardizes the accuracy of the transcript. Let me ask you to

start that quote again slowly.

MR. SIMON: Thank you, Your Honor. "After reviewing

our law at the time, the majority concludes that no cases, in

the Ninth Circuit or otherwise, even remotely suggests that

Norse's principle can be inverted to indefinitely ban an

individual from a government building based on a single

disruption of a hearing. 

"But this answers the wrong question, and it is

ultimately a red herring. The fact that no cases affirmatively

permitted an official to ban an individual from a government

building based on a single disruption, the majority's

conclusion, is irrelevant for purposes of qualified immunity.

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Instead, the relevant question is whether any case expressly

prohibited an official from banning an individual from a

government building for a single disruption. None of our cases

at the time of the hearing in question answer that question." 

The Ninth Circuit dissent then goes on to discuss the

history of the cases, White v. City of Norwalk, Kindt v. Santa

Monica Rent Control Board, Norris v. City of Santa Cruz, and

ultimately concludes that none of those cases say anything

about whether an official can ban an individual from future

meetings as a result of an actual disruption.

THE COURT: I have read those cases several times. I

have read that dissent. As, of course, you know, that is a

dissent, and it seems like it may very well be a question of

first impression in the Ninth Circuit, and as far as I found,

in cases throughout the country.

Are there any appellate decisions that you are aware

of that -- let's start with that -- that uphold the authority

of a governmental official, maybe in the context of a City

Council meeting or something, that is appropriately analogous

to exclude someone who was shown to be actually disruptive from

attending future meetings? 

We will talk to Mr. Walsh in a few minutes, but I

think it is pretty darn clear that if someone is being

disruptive in a meeting, actually disruptive in a meeting, they

can be removed from that meeting for the duration of that

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meeting, and that does not violate First Amendment rights.

What I'm troubled by is the prospective exclusion

order, and I don't see any appellate decisions anywhere that,

at least in the context of a limited public forum, such as the

City Council meeting, that upholds prospective exclusions. I

say "limited public forums," and I think that distinguishes a

Tri-Met-type situation where you are talking more about access

to services. But where you are actually in a limited public

forum speaking to a governmental body, are you aware of any

appellate case law that would uphold or allow prospective

exclusions beyond the date and time of the meeting itself where

the person was actually disruptive?

MR. SIMON: Your Honor, we will acknowledge that we

do not have a case that says that.

THE COURT: And I'm not aware of it either. So what

I'm hearing the City urging to me is they want me to be the

first Court in the country to acknowledge that prospective

exclusions do not violate the First Amendment, and they are not

citing any precedent that would support that, and that's given

me heartburn. You can try to make me feel more comfortable.

Go ahead.

MR. SIMON: Your Honor, I will point to -- it is not

an appellate case, but it is a District of Oregon case. It is

the case of Mead v. Gordon. That's at 583 F.2d 1231.

THE COURT: That's Judge Papak's case involving the

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disruption at the Washington County Courthouse. I think that's

arguably factually distinguishable. I will read that several

more times. I think it is a different situation. If I recall

it correctly, the person wasn't even completely excluded from

going back to Washington County Court as long as they had

someone to accompany them to deal with a threat issue; am I

correct?

MR. SIMON: Your Honor, I believe there were some

discrete circumstances in which the plaintiff in Mead was

allowed to return to the courthouse. I believe one of those

was whether that person was a party to a court proceeding. I

believe that also that person would be allowed to travel in the

courthouse so long as they had a security escort.

THE COURT: Right. That's what I'm thinking of too.

It sounds like an interesting sort of ad hoc solution to that

problem. As far as I know, that case did not go up on

appellate review.

MR. SIMON: That's correct.

THE COURT: Obviously, No. 1, it is not binding on

me. No. 2, I will take a look at it for whatever persuasive

value that it may have. But you didn't cite any appellate

cases that support the proposition that a prospective exclusion

of a limited public forum is admissible. I'm familiar with

that case, among others. I will re-read that one too.

MR. SIMON: Your Honor, another case that I will cite

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to you, which was affirmed by the Ninth Circuit, is the case of

Rosebrock v. Beiter, 788 F.Supp. 2d 1127, which is affirmed at

745 F.3d 963, and that is citing Supreme Court --

THE COURT: Let me hear those cites again. 788 --

MR. SIMON: 788 F.Supp.2d 1127.

THE COURT: It was affirmed at what cite?

MR. SIMON: 745 F.3d 963.

THE COURT: That's Ninth Circuit you say?

MR. SIMON: Correct.

THE COURT: I'm not familiar with that case. Tell me

about it.

MR. SIMON: That case is citing a Supreme Court case

of Cornelius v. NAACP Legal Defense and Educational Fund.

THE COURT: That case, I know.

MR. SIMON: In that case, the District Court opinion

at 1139, that cited Cornelius. It said, "The Supreme Court has

held that the mere possibility of disruptions and controversies

is sufficient justification to deny access to a nonpublic

forum."

THE COURT: I'll take a closer look at that. 

MR. SIMON: That's Rosebrock.

THE COURT: I'll take a closer look at that. I'm not

familiar with that.

MR. SIMON: It is cited in our motion for summary

judgment at page 22.

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THE COURT: I did read a lot of the cases. I must

have missed that one.

MR. SIMON: I also want to point to a Supreme Court

case. The case is -- pardon me, Your Honor.

THE COURT: In Rosebrock, can you tell me what the

holding was? The language there, was that dicta? If you don't

know, that's all right. I will go back and read it. 

MR. SIMON: Yes, Your Honor. I will refer to page 22

of our motion for summary judgment for the discussion there.

THE COURT: One moment. Let me take a look at it.

I don't quite see the answer to my question on page

22. I will take a look later. 

MR. SIMON: About halfway down, I do want to point to

the citation of Perry Education Association v. Perry Local

Educators' Association. The quote there, "There is no showing

in the record of past disturbances or having a future

disturbance would be likely. We have not required such proof

be present to justify the denial of access to a nonpublic forum

on the grounds that the proposed use may disrupt the property's

intended function."

THE COURT: We are dealing with a limited public

forum.

MR. SIMON: Yes, Your Honor.

The other case that I want to point to from the

Supreme Court is Minnesota State Board for Community

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Colleges v. Knight. At page 283 and 284 of that case, it

states, "The Constitution does not grant to members of the

public generally a right to be heard by a public body making

decisions of policy."

So the First Amendment does not confer any

affirmative right for Mr. Walsh to testify on items before the

City Council in person at the precise moment that those items

are being heard.

There are alternative methods for communication

prescribed in the City's exclusions. Mr. Walsh still had the

opportunity to view testimony of City Council meetings on line.

He may submit testimony in writing in advance of a City Council

hearing, and he also may schedule business with city personnel

at alternative locations.

THE COURT: Counsel, so let me ask you, the exclusion

order here, was that to punish him for being disruptive at the

prior hearings?

MR. SIMON: No, Your Honor.

THE COURT: Then what was the purpose of the 60-day

exclusion?

MR. SIMON: The purpose was to preserve the order and

decorum of City Hall and the safety of its attendees.

THE COURT: So why isn't the decorum and safety

preserved by excluding him when he was disruptive?

MR. SIMON: Because, Your Honor, of the history of

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disruption and the increased possibility for future disruption.

We're facing a situation where the plaintiff can enter a

City Council meeting, disrupt the City Council meeting, cause

the City Council meeting to grind to a halt while he is

removed, and then come back to another City Council meeting and

then simply repeat the same process.

THE COURT: I'm not following this, because you

didn't exclude him permanently, as the ordinance seems to

permit. You excluded him for 60 days. So on day 61 he could

come back and do exactly what you don't want him to do. So

what's the real purpose of the 60-day exclusion? 

MR. LANDRUM: If I may, Your Honor.

THE COURT: You may.

MR. LANDRUM: The purpose is not to punish Mr. Walsh

by inflicting some kind of difficult burden on him, but there

is an element to this that suggests to Mr. Walsh perhaps you

ought to let other people take their turn in addressing the

Council. Then you can take your turn in addressing the

Council. And then the Council may take its turn in addressing

the people who are present in a way that lets us get out of

Council meetings before late, after dark.

THE COURT: I don't disagree with that one bit.

That's why when anyone has been shown to be actually

disruptive, they can and probably, in my opinion -- I probably

shouldn't say this, but I am going to -- they should be removed

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if they are actually disruptive.

Now, what seems to me, though, by then entering the

prospective order saying you can't come back for 60 days is to

say, "And if you are going to be disruptive, there is going to

be some penalty attached. There is going to be some

punishment. You're going to lose your ability to speak to us

even without being disruptive for 60 days," maybe even with the

implied threat that if you come back, and you're disruptive on

day 61, maybe it will be 90 days. Do it again, it might be 120

days.

So there seems this concept that you are going to

lose some of your rights. You are going to lose some of your

privileges because of the way you have previously behaved in

order to try to deter future offenses. Now, I don't know

whether that is or isn't offensive to the First Amendment. I'm

still struggling with that. But I'm trying to find out what

the purpose of the 60-day exclusion order is. That's the only

thing I could come up with.

MR. LANDRUM: Well, before I turn it back over to

Mr. Simon, because I told him I would.

THE COURT: You can tag team all you want.

MR. LANDRUM: Two things: First thing, it is

inherent in the nature of the rule that, depending on the

conduct displayed by the person present at the City Council

meeting, some escalating response can be had, depending on what

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you are doing and how often you do it.

But it is just inherent with the rule that, while

you're gone, we are going to try to get in some City Council

meetings that go along the agenda, and we don't have to stop to

run anybody out of the chamber because they are putting a brake

on the meeting. Then once we have done that and 60 days has

come up, "Welcome back, Mr. Walsh," and we will try it again.

I think it is both inherent in this language in the rule. It

is also inherent in the authority of the governing city body to

carry out its business.

THE COURT: Now, I take it that it is the City's

position obviously that a 60-day exclusion is not an

unreasonable restriction. We know that in a limited public

forum -- and that's what we're dealing with here -- in a

limited public forum, the restrictions have to be both

reasonable and viewpoint neutral. Nobody is arguing that it is

not viewpoint neutral. I think it is viewpoint neutral.

So the question is, is the 60-day exclusion

reasonable? Obviously I think by the City's position here,

they have to be taking the position that 60 days is reasonable,

right?

MR. LANDRUM: Yes, that's correct.

THE COURT: Would 90 days be reasonable under these

circumstances?

MR. LANDRUM: Maybe not, but we haven't gotten there

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yet with Mr. Walsh. We weren't ready for 90 days yet this

time; this was his third one.

THE COURT: I have to figure out -- and I don't think

you disagree with this -- whether 60 days is reasonable. If

you tell me that 90 days might not be reasonable, now I need to

figure out, okay, why might 90 days not be reasonable, but 60

days is? 

I'll start out by granting you, if we're in the

middle of a City Hall meeting, and Mr. Walsh or anyone else is

actually disruptive, there's every right under the

First Amendment to remove them for the duration of that

meeting. There's no doubt about it in my mind, and there is

plenty of Ninth Circuit precedent to that effect.

So we know that removing someone for the duration of

the meeting is not unreasonable. You tell me that removing

them for 90 days, even with a pattern of several prior

incidents, might not be reasonable. You say that 60 days is.

I'm trying to figure out, why is 60 days reasonable? Why not

30?

MR. LANDRUM: Because -- I'm sorry.

THE COURT: Go ahead.

MR. LANDRUM: Because we already tried 30 with him,

and that didn't work.

THE COURT: Your position is, if you remove him from

one meeting, that should be sufficient. If he continues or

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someone continues to be actually disruptive, you can try to

increase it a little bit more. If that solves the problem,

good. But if they continue to be actually disruptive, then you

can ratchet up the length of the exclusion. Maybe if 60 didn't

work, next time you exclude him for 90. If that didn't work,

maybe you exclude him for 180, and then eventually exclude

somebody maybe permanently. Is that the City's theory here on

how to evaluate reasonableness under the First Amendment?

MR. LANDRUM: I would offer two things about that,

Your Honor. First of all, because it is similar to the

Washington County Circuit Court in Mead -- they were

escalating. It is a reasonable, rational ad hoc response to an

actual problem, so in that way, yes.

THE COURT: Although Mead is not precedent here.

MR. LANDRUM: I understand that Mead is not

precedent.

THE COURT: I am trying to deal with what the legal

criteria are and the fact that another trial court in Mead

approved something that never went up on appeal.

MR. LANDRUM: I'm not trying to argue that Mead is

some kind of authoritative review, but I'm trying to echo

something that you said to us a few minutes ago, which was that

was an ad hoc approach to an immediate, practical problem.

THE COURT: By the way, don't misunderstand me. That

was also not a statement by me that Mead was correct under the

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First Amendment.

MR. LANDRUM: I understand that also, Your Honor.

I'm saying that's what makes the approach by the City, because

this is an actual practical problem. The bus needs to get

there by 6:30, and it can't get there because someone is

standing in front of it. The only people that get to deal with

that and make the bus get there as close to 6:30 as they can

are the five people sitting at the desk in the City Council

chambers, and they are trying to do that working with what they

have. No. 1, it is just simply a practical response to

practical problems.

THE COURT: That's what I don't understand, and here

is why. Although I don't have any in this hearing, but I will

have it in other hearings. We will have courtroom security

officers here, U.S. Marshals here, if there are any problems.

If you have a Council security officer there, and the very

first time that anybody is actually disruptive, especially if

it is Mr. Walsh with a history, you say, "I am sorry,

Mr. Walsh. You have been disruptive in this hearing.

Security, remove him." Then you go on and continue running

your bus. Why isn't that a solution that solves the problem

that you have identified without doing undue offense to the

First Amendment?

MR. LANDRUM: Two problems: One, the security in the

City Hall, they are not part of the Police Bureau. They are

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contracted security services. They don't have any more

authority than I do to put their hands on Mr. Walsh and make

him leave the City Council chambers. If he doesn't want to,

then we have got to bring in a police officer and go down the

trespass road. And that happens. That just adds to the time

that the City Council and everybody there is sitting around and

tapping their feet while Mr. Walsh holds it hostage.

So the description of the idea -- one time

Judge Baker, when I was in her courtroom, turned to the clerk

and said, "Call the guard," and the clerk barely reached for

the phone, and the guard came through the backdoor of the

courtroom and things settled down. City Council chambers don't

quite work that way, but almost.

Now, another thing I was going to offer about this is

the varying length of time for the exclusion and whether the

City is going to make an exclusion for one meeting or 30 days

or 60 days or permanent is also in the response to what the

actual disruptive conduct is. Now, without naming names and

going into detail, we recently had an event that involved

somebody putting hands on somebody else. Well, that's it. We

can't really --

THE COURT: I agree. So why don't we just call the

police, call the DA, and have that person prosecuted for

battery?

MR. LANDRUM: In that instance we did. The point I'm

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trying to make is, that's not the problem that we had with

Mr. Walsh, and so we don't want to go to that option right away

because it doesn't merit that option right away. It merits a

different option.

THE COURT: I understand the problem. I'm just not

so sure that the First Amendment gives that kind of leeway and

that kind of discretion under these circumstances. I am

concerned that there is no appellate precedent that says it

does.

MR. LANDRUM: Unless you have another question, I'm

going to turn it back over to Mr. Simon.

THE COURT: Very good.

Mr. Walsh, let me give Mr. Simon a few more minutes,

and then I'll turn to you.

Mr. Simon, concluding remarks, and I will let you

rebut after Mr. Walsh.

MR. SIMON: Thank you, Your Honor.

I believe Mr. Landrum has now addressed many of

Your Honor's questions. I will add that if this Court were to

completely invalidate the City's exclusion policy from a facial

standpoint, the City would be in the difficult in regards to

its ability to conduct business sufficiently and safely.

If there is a means for the City to be able to

restrict access to individuals with known histories of

disruptive behavior, that leaves to the aforementioned

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situation where a person can simply -- if they are intent on

disrupting City Council -- can simply return nonstop and repeat

this process ad nauseam.

The City would also have no means restricting the

access to individuals who are physically disruptive as well as

verbally, as in the situation that Mr. Landrum described. An

individual who has been physically aggressive towards city

personnel or other citizens at that meeting, they would be

allowed entry into the City Council chamber, and they would be

allowed to be in close proximity to their previous targets of

their physical aggression. In both situations, the right of

both the City Council to conduct its business sufficiently and

the rights of others to appear and testify before the City

Council are affected.

We believe that the exclusion policy is a

content-neutral means of maintaining the government's ability

to conduct that safe and efficient business.

THE COURT: I agree. I think it is content-neutral.

MR. SIMON: We, in the record, have shown you that

this is a unique situation where the plaintiff has a documented

and undisputed history of disrupting City Council meetings and

then refusing to alter his disruptive behavior despite any

actions taken against him to minimize or remove that conduct.

So the City asks that you grant its motion for summary judgment

and deny plaintiff's cross-motion.

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THE COURT: Thank you very much, Mr. Simon.

Mr. Walsh. You may either stand or remain seated,

whatever is more comfortable for you, sir.

MR. WALSH: I will start from the sitting position.

I have to apologize for my voice. I have been on oxygen now

for eight years, and I take a lot of medications. Apparently

it is affecting my voice box, but you can understand me. It is

a little bit difficult for me to get some of the words out.

Sometimes my presentation will go from whisper to yelling. I

get into a lot of trouble over that, because people do not

understand it. However, I would ask just some patience.

THE COURT: I will. I will give you a

recommendation, but also ask for a favor. If you have a

choice, I would prefer a whisper to yelling.

MR. WALSH: I will try to do that.

We agree with the Court that we are not arguing that

if my behavior in the City Council meetings is inappropriate in

the eyes of the presiding official, that he or she has the

option to remove me. They've removed me three times. I have

never been arrested on all three occasions. So, therefore, it

is at least implied that I have cooperated on some level. They

ordered me out, and I left -- sometimes with resistance,

sometimes mouthy, buy I did leave. They never called the

police. I was never arrested. I was escorted out by the

security people, and some of the security people weren't very

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Case 3:15-cv-01666-SI Document 32 Filed 01/11/16 Page 27 of 36
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friendly with me.

Now, the City has spent a lot of time, about

70 percent of their brief, telling you how bad I am. I

represent individuals for justice that represents a group of

people that monitor, among other things, City Hall.

I have attended through three mayors -- Mayor Potter,

Mayor Sam Adams, and Mayor Hales -- I calculate that I have

attended about 400 City Council meetings. They, the City,

report to you three instances. I think if my math is right,

and I was never great at math, that's 1 percent.

How can any reasonable person say that I've attended

400 meetings, three of them that I was a little bit obnoxious,

and I was taken out and blocked from that meeting that day as

punishment, and then on top of that was issued an exclusion, an

exclusion based on a code of conduct that was written by a city

employee that has 19 items on it, and if you turn the wrong

way, they can nail you. It is so encumbering, so general, that

the First Amendment is turned on its head.

It is a semi-private or public forum. That was new

to me. I thought it was public.

THE COURT: The technical term, it is called a

"limited public forum."

MR. WALSH: Limited public forum. That was new to

me. I did not know that.

However, during the time of public testimony, I

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think -- my opinion -- it becomes a public forum. I may be

wrong on that. However, that's the attitude that I went in. I

was entitled to my three minutes. In the last incident of the

60 days -- and that's what we are really appealing on this.

THE COURT: The removal from the consent agenda.

Then you stepped out to address some medical issues, and they

had already moved past you.

MR. WALSH: But they were aware of the medical

issues. My oxygen was still there, so they knew. They did not

want to talk about this item. This item was $100,000 being

moved from Transportation to Police Overtime. They did not

want to do it. Is it too loud?

THE COURT: Yes.

MR. WALSH: They did not want to talk about that.

Now, all I did was yell from the audience to the

Mayor, "What happened to the agenda item?" And they said, "You

weren't here. We voted on it. It is gone. It is finished.

You cannot talk about it."

I was the one who called it. I have a right to talk

about that. They held it up for two hours. If you look on the

charter, the charter says that a consent to agenda items are

No. 3 on the agenda. It is about a half hour into the meeting.

It also says that if somebody pulls an agenda item,

it must be considered right after the vote of the others, which

means about maybe another ten minutes.

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What Charlie Hales does, he moved it all the way in

the back under regular base, and that means that you have to

wait two to three hours to talk three minutes about something

you object to. What happens? People leave. They don't have

the three hours. Unfortunately for Charlie Hales, I'm retired,

so I can stay. Again, they tell you how bad I am, and I'm not

that bad. I have holes in my tongue from biting it at some of

these meetings.

The reason that I got so upset on that one, it was

playing what they did. It was so playing, because there were

no apology. "Gee, Mr. Walsh, I didn't know you were here. I'm

sorry." They said, "No, you were out of the room; too bad."

THE COURT: Mr. Walsh, let me ask a procedural

question --

MR. WALSH: Let me just finish this.

THE COURT: Okay.

MR. WALSH: There is a man sitting here today,

Mr. Davis. Mr. Davis has been permanently barred from

City Hall, and his crime was videotaping an arrest taking place

at City Hall. That was his crime. They told him to leave. He

said, "No, I have a right to videotape and record this." They

said, "No, you don't; arrest him." They arrested him, and now

he is permanently barred.

These guys are going after activists, Your Honor. We

have four activists now that are either excluded or barred.

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And if you try to do the appeal, they will claim mootness,

because you cannot get the appeal on a 10-day or a 15-day, and

so they will run the clock out. Then they claim mootness. So

it is a trap door.

THE COURT: By the way, it is easier to claim

mootness in a state court in Oregon because of the Oregon state

law procedures. In federal court, as Mr. Simon described, we

do have the doctrine of capable of repetition yet evading

review. So federal lawsuits are more difficult to become moot.

Unfortunately, or fortunately -- I'm not going to comment on

state law -- but under state law, under the Oregon Supreme

Court rulings, it is easier for a dispute to become moot.

MR. WALSH: We just had a decision in our state

Supreme Court that brings it in line with the federal courts.

We were the last state to do it. There were 49 other states

that already did it, but we just did it about four months ago.

That's the e-mail that you got from the Auditor's Office,

because I asked for a clarification on that, because the

Auditor's Office runs the Hearing Office. My question to the

auditor was, if the Supreme Court now, in Oregon, is saying

that you cannot claim mootness anymore, you have to comply with

the federal, what does that mean? And she came back and she

says it's dead.

THE COURT: All right. I will say I have not been

staying on top of that issue in state court.

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Let me ask you a procedural question.

MR. WALSH: All right.

THE COURT: I really have not yet made up my mind

what I'm going to do about this case. You have heard some of

my concerns. But let me ask you, in your complaint, and I

appreciate the fact that you are representing yourself, you

don't have a lawyer, so it is a little bit unclear to me. I'm

not being critical of you, but I want to see if I can clarify

something.

If I were to agree with your First Amendment

challenge to the ordinance here that excluded you for 60 days,

No. 1, I would make a declaration to that effect. No. 2, I

might very well enter what's called a permanent injunction

enjoining the enforcement of the ordinance as it is presently

written. But it is also possible, and I don't know if this is

what you want, I don't know whether this would be a waste of

time for you or anybody else, it is also possible that if I

were to agree with your First Amendment analysis, that you

would have a right to a jury trial on whether or not you are

entitled to any money damages for a violation of your

constitutional rights.

If you ask for a jury trial, and you have a right to

a jury trial, a jury would decide whether or not you have any

right to money damages. But it is unclear to me whether that

is also part of what you are requesting in your complaint. Can

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Case 3:15-cv-01666-SI Document 32 Filed 01/11/16 Page 32 of 36
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you clarify for me now, please, whether or not you are simply

requesting a declaration from this Court and a permanent

injunction against the City from this Court against the

ordinance, as currently drafted or as applied to you in this

case, or if you're also asking for a jury trial on money

damages. Can you clarify that for me?

MR. WALSH: I think so. I have no interest in money

at all. I have interest. I think that one man -- the Mayor --

should not have the power to decide whether he is going to

exclude me from City Council for 30, 60, or 90 days, or

permanently. It's up to him; it's totally subjective. They

base it -- they run it through the City Attorney to make it at

least somewhat legal. 

But here is the question that we asked in our brief:

Does the Mayor have that kind of power? And if he does, what's

the restrictions on him?

THE COURT: Right.

MR. WALSH: To answer you are question, no, I'm not

interested in money. I'm not interested in taking this to

trial. I am interested in you saying to me, "Mr. Walsh, the

Mayor had that power; too bad."

THE COURT: Yes.

MR. WALSH: Or, "No, he doesn't."

THE COURT: It is a very important question that you

raise. I'm not going to give the answer now orally from the

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bench. I want to study these issues a bit more thoroughly. I

am going to write a written opinion about it. You will get one

in the mail. They will get a copy of the opinion as well.

Whoever doesn't like what I say has the right to appeal to the

Ninth Circuit.

I want to study these issues a little bit more. I am

going to give in a few moments, when you are done, I am going

to give Mr. Simon a final rebuttal. Then I am going to take

this matter under advisement and issue a written opinion

probably within 30 days, give or take.

Anything further, Mr. Walsh?

MR. WALSH: Thank you for your patience. The reason

that I didn't submit another brief at the end is I thought it

would be repetitious.

THE COURT: And I appreciate that. Thank you.

Mr. Simon, final words in rebuttal, and then I'll

take it under advisement.

MR. SIMON: Thank you, Your Honor. I want to remind

the Court that there is no due process claim at issue.

THE COURT: I understand. Plaintiff is alleging

First Amendment free speech. 

MR. SIMON: I also want to clarify a point Mr. Walsh

made about another who was excluded.

THE COURT: You don't need to. I think that I really

understand the context. The only claim before the Court is

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Mr. Walsh's claim and only based upon the 60-day order. In

fact, the prior instances with Mr. Walsh, that may be

background that led up to you. But the issue before the Court

is whether or not the City, under the ordinance, had the

authority to issue a 60-day exclusion to Mr. Walsh under these

circumstances.

MR. SIMON: Thank you, Your Honor.

THE COURT: I will make my opinion limited to that

question.

MR. SIMON: Thank you, Your Honor.

THE COURT: Thank you all very much. I appreciate

the written briefing. I appreciate the oral argument. I will

take it under advisement. I will do my best to release the

written opinion within about 30 days.

Thank you.

(End of proceedings.)

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Case 3:15-cv-01666-SI Document 32 Filed 01/11/16 Page 35 of 36
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 --oOo-- 

I certify, by signing below, that the foregoing is a

correct transcript of the record of proceedings in the

above-entitled cause. A transcript without an original

signature, conformed signature, or digitally signed signature

is not certified.

/s/ Dennis W. Apodaca January 11, 2016 

DENNIS W. APODACA, RDR, RMR, FCRR, CRR DATE 

Official Court Reporter 

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Case 3:15-cv-01666-SI Document 32 Filed 01/11/16 Page 36 of 36