Chaffee v. San Francisco Library Commission et al
Filing
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CERTIFICATE OF COUNSEL: Response to Order to Show Cause, filed by City and County of San Francisco, San Francisco Library Commission (Steeley, Tara) (Filed on 2/10/2011) Modified on 2/11/2011 (jlm, COURT STAFF).
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DENNIS J. HERRERA, State Bar #139669
City Attorney
WAYNE K. SNODGRASS, State Bar #148137
TARA M. STEELEY, State Bar #231775
Deputy City Attorneys
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
Telephone:
(415) 554-4655
Facsimile:
(415) 554-4699
E-Mail:
tara.steeley@sfgov.org
Attorneys for Defendants
SAN FRANCISCO LIBRARY COMMISSION AND
CITY AND COUNTY OF SAN FRANCISCO
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JAMES CHAFFEE,
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Plaintiff,
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vs.
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SAN FRANCISCO LIBRARY
COMMISSION, CITY AND COUNTY OF
SAN FRANCISCO, and DOES 1 through 20,
inclusive,
Defendants.
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CERTIFICATE OF COUNSEL
CASE NO. CV10-4521 SBA
Case No. CV10-4521 SBA
CERTIFICATE OF COUNSEL
Pursuant to the Court's Order to Show Cause Re Dismissal, filed February 4, 2011, Defendants
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San Francisco Library Commission and City and County of San Francisco (collectively, the "Library
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Commission" or "Commission") submit this Certificate of Counsel.
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I.
NATURE OF THIS ACTION
In this action, Plaintiff James Chaffee challenges the Library Commission's decision to prohibit
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members of the public from using computerized graphic displays (such as PowerPoint) during the
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public comment portion of Library Commission meetings. Chaffee contends that the First
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Amendment and Equal Protection Clause of the United States Constitution entitle him to use
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PowerPoint during the public comment portion of Library Commission meetings, and thus the
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Commission's restriction violates his constitutional rights. Plaintiff contends that his inability to use
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PowerPoint during Commission meetings has caused him "extreme embarrassment, humiliation, and
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emotion distress," has violated his constitutional rights, and has impeded his "right to distribute
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information and to provide information that might prevent damage to the public welfare." Compt. at
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6-7. Plaintiff seeks general and special damages, declaratory relief, an injunction, and an award of
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costs and attorneys' fees.
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II.
The Complaint was filed on October 6, 2010. Defendants filed an answer on October 27,
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PROCEDURAL HISTORY
2010.
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The Initial Case Management Conference ("CMC") was scheduled for February 3, 2011. On
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February 2nd, Tara Steeley, counsel for Defendants, received an email from Plaintiff which stated: "I
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just called the court clerk and cancelled the Case Management Conference at 2:30 tomorrow. Since
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they can’t do it without me, I think we can consider it off." After receiving that message, Ms. Steeley
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called Lisa R. Clark, Calendar Clerk & Courtroom Deputy for the Honorable Saundra Brown
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Armstrong, to seek guidance on what she should do in light of Plaintiff's apparently unilateral decision
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to cancel a hearing scheduled by the Court. Shortly before the scheduled CMC, Ms. Steeley also
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called the number provided on the CMC scheduling order and asked what she should do in light of
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Plaintiff's message. Ms. Steeley was informed that she should wait to see if Plaintiff initiated the call.
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Plaintiff failed to initiate the call as ordered by the Court.
CERTIFICATE OF COUNSEL
CASE NO. CV10-4521 SBA
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On February 4, 2011, at 7:32 am, the Court issued an Order to Show Cause Re Dismissal. That
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Order provides that Plaintiff "may not file any motions or other requests with the Court until he files
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his response to this Order," and informs Plaintiff that "FAILURE TO FULLY COMPLY WITH THIS
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ORDER WILL BE DEEMED SUFFICIENT GROUNDS TO DISMISS THE ACTION, WITHOUT
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FURTHER NOTICE." Dkt 19 at 2.
Ignoring that Order, Plaintiff filed a motion on February 7, 2011 (before filing his response to
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the Order to Show Cause) seeking to disqualify the Honorable Saundra Brown Armstrong on the
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ground that she denied his request to participate in the Court's efiling program. That motion is
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frivolous. Liteky v. U.S., 510 U.S. 540, 555 (1994) (holding "judicial rulings alone almost never
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constitute a valid basis for a bias or partiality motion").
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III.
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REASONS THE ACTION SHOULD BE DISMISSED
This action should be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure
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because Plaintiff failed to comply with the Court's CMC scheduling order and Order to Show Cause
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Re Dismissal. Plaintiff's repeated and unjustifiable failures to comply with orders of the Court justify
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dismissal of this action. Ferdick v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).
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Although dismissal is a harsh sanction, it is appropriate in this case. Plaintiff has repeatedly
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and blatantly violated two orders issued by this Court. By violating Court orders, Plaintiff threatens
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this Court's ability to manage its docket, and prevents this litigation from advancing to resolution in an
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expeditious manner. The Court need not be "subject to the endless vexatious noncompliance" with its
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orders, and thus these factors strongly support dismissal. Ferdick, 963 F.2d at 1261. Plaintiff's
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conduct has also prejudiced defendants because his actions have forced their counsel to waste limited
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time and money that would be better spent on other matters. Finally, there are no less drastic
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alternatives that would curb Plaintiff's behavior. In response to Plaintiff's violation of the CMC
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scheduling order and his apparent misrepresentation to the Court that he would set up the call at the
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appropriate time, the Court issued an Order to Show Cause to give Plaintiff the opportunity to explain
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his behavior. Plaintiff responded, however, by violating terms of the Order to Show cause by filing a
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frivolous motion. Because Plaintiff has not demonstrated any willingness to comply with the orders of
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this Court, dismissal is appropriate. Ferdick, 963 F.2d at 1262 (upholding dismissal even though
CERTIFICATE OF COUNSEL
CASE NO. CV10-4521 SBA
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defendants were not prejudiced and public policy supported disposition of actions on the merits
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because other factors strongly supported dismissal).
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IV.
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THE EXPECTED COURSE OF THIS ACTION IF NOT DISMISSED
If this case is not dismissed, the Library Commission intends to move for summary judgment
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because this suit lacks merit. Plaintiff does not have a First Amendment right to use PowerPoint
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during Library Commission meetings. It is well established that "[c]itizens are not entitled to exercise
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their First Amendment rights whenever and whatever they wish." Kindt v. Santa Monica Rent
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Control, 67 F.3d 266, 269 (9th Cir. 1995). To the contrary, public commissions may regulate the time,
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place and manner of speech, and may even regulate the content of speech – as long as the content-
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based restrictions are "reasonable and viewpoint neutral." Id. at 271.
Here, the Library Commission permissibly prevents members of the public, including Plaintiff,
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from using computerized graphic displays during the public comment portion of Library Commission
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meetings. Although Plaintiff wishes to use PowerPoint, the Library Commission has determined that
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allowing the use of PowerPoint during the public comment portion of commission meetings would,
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inter alia, cause unnecessary delays1 and threaten the security of the Library's computer network.2
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Based on these reasonable concerns, the Library Commission does not allow any member of the public
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to use PowerPoint or other computerized graphic displays during the public comment portion of
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meetings regardless of the viewpoint expressed in the comments. Nothing prohibits members of the
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public from orally conveying their views to the Commission members, or distributing written
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materials conveying their point of view.
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Plaintiff’s equal protection claim fails because the Library Commission's refusal to allow
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PowerPoint during public comment is rationally related to a legitimate interest of the Commission.
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City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Plaintiff contends that the
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Member of the public are permitted to speak for three minutes during each public comment
period at the Library Commission meetings. Allowing each of those individuals to set up and display
a PowerPoint presentation would likely introduce unnecessary delays and needless burden for the
Library Commission.
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The Library Commission's network security may be threatened because the auditorium where
Library Commission meetings are held does not have a separate, dedicated system for members of the
public to use. Thus, members of the public wishing to use PowerPoint would have to use the Library's
computer facilities, thus potentially exposing the computer network to viruses and other harms.
CERTIFICATE OF COUNSEL
CASE NO. CV10-4521 SBA
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Library Commission has violated his equal protection rights by allowing employees of the City or
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other invited guests to make PowerPoint presentations while prohibiting him from doing so. But
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allowing employees or a few invited guests to make PowerPoint presentations concerning agenda
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items does not raise the same delay and security concerns that would exist if the Library Commission
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also had to allow every member of the public to use PowerPoint during the three minutes allotted for
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each public comment. Because the Commission's decision must be presumed to be valid and must be
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upheld if it is supported by any rational interest, Plaintiff's equal protection claim fails. Id.
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Finally, Plaintiff’s claim under 42 U.S.C. § 1983 fails, inter alia, because the Commission’s
conduct has not deprived him of any constitutional right. Ketchum v. Alameda County, 811 F.2d
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1243, 1245 (9th Cir. 1987) (holding a Section 1983 claim requires conduct that deprives the plaintiff of
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a constitutional right).
CONCLUSION
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This action should be dismissed because Plaintiff has repeatedly violated Orders of this Court.
Dated: February 10, 2011
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DENNIS J. HERRERA
City Attorney
WAYNE K. SNODGRASS
TARA M. STEELEY
Deputy City Attorneys
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By:
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/s/Tara M. Steeley
TARA M. STEELEY
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Attorneys for Defendants
SAN FRANCISCO LIBRARY COMMISSION AND
CITY AND COUNTY OF SAN FRANCISCO
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CERTIFICATE OF COUNSEL
CASE NO. CV10-4521 SBA
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PROOF OF SERVICE
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I, HOLLY CHIN, declare as follows:
I am a citizen of the United States, over the age of eighteen years and not a party to the aboveentitled action. I am employed at the City Attorney’s Office of San Francisco, City Hall, Room 234, 1
Dr. Carlton B. Goodlett Place, San Francisco, CA 94102.
On February 10, 2011, I served the following document(s):
CERTIFICATE OF COUNSEL
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on the following persons at the locations specified:
JAMES CHAFFEE
In Pro Per
63 Stoneybrook Avenue
San Francisco, CA 94112
Telephone: 415-584-8999
in the manner indicated below:
BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of
the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with
the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's
Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed
for collection would be deposited, postage prepaid, with the United States Postal Service that same day.
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BY PERSONAL SERVICE: I sealed true and correct copies of the above documents in addressed
envelope(s) and caused such envelope(s) to be delivered by hand at the above locations by a professional
messenger service. A declaration from the messenger who made the delivery
is attached or
will be
filed separately with the court.
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BY OVERNIGHT DELIVERY: I sealed true and correct copies of the above documents in addressed
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envelope(s) and placed them at my workplace for collection and delivery by overnight courier service. I am
readily familiar with the practices of the San Francisco City Attorney's Office for sending overnight deliveries. In
the ordinary course of business, the sealed envelope(s) that I placed for collection would be collected by a courier
the same day.
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BY FACSIMILE: Based on a written agreement of the parties to accept service by fax, I transmitted true and
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correct copies of the above document(s) via a facsimile machine at telephone number Fax #415-554-4699 to the
persons and the fax numbers listed above. The fax transmission was reported as complete and without error. The
transmission report was properly issued by the transmitting facsimile machine, and a copy of the transmission
report
is attached or
will be filed separately with the court.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct.
Executed February 10, 2011, at San Francisco, California.
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/s/Holly Chin
HOLLY CHIN
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CERTIFICATE OF COUNSEL
CASE NO. CV10-4521 SBA
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