Smith et al v. City of Middletown et al

Filing 31

RULING granting 27 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 9/1/2011. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LEE B. SMITH & DONNA GAGNON-SMITH,
Plaintiffs,
v.
CITY OF MIDDLETOWN, ET AL.,
Defendants.

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CIVIL ACTION NO.
3:09-CV-1431 (JCH)

SEPTEMBER 1, 2011

RULING RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. No. 27]
I.

INTRODUCTION
Plaintiffs Lee B. Smith and Donna Gagnon-Smith bring this action against Robert

P. Santangelo, a member of the Middletown Common Council, and the City of
Middletown, for allegedly depriving the plaintiffs of their rights under the First
Amendment, in violation of 42 U.S.C. §§ 1983, 1988. Pending before the court is the
defendants’ Motion for Summary Judgment (Doc. No. 27). For the reasons that follow,
the court grants the defendants’ Motion.
II.

STANDARD OF REVIEW
A motion for summary judgment “may properly be granted . . . only where there is

no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574
F.3d 129, 151 (2d Cir. 2009). Thus, the role of a district court in considering such a
motion “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. In making this determination,
the trial court must resolve all ambiguities and draw all inferences in favor of the party

against whom summary judgment is sought. See Fed R. Civ. P. 56(c); Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009).
“[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. National R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the party opposing summary judgment . . . must set forth ‘specific
facts’ demonstrating that there is ‘a genuine issue for trial.’ ” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “A dispute about a ‘genuine
issue’ exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant's favor.” Beyer v. County of Nassau,
524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d
Cir. 2007)); see also Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.
2008) (stating that a non-moving party must point to more than a mere “ ‘scintilla’ ” of
evidence in order to defeat a motion for summary judgment) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). In this case, there are no genuine issues of
material fact to be tried, and the court is able to adjudicate the Motions for Summary
Judgment as a matter of law.
III.

FACTUAL BACKGROUND1
This case involves several changes in the rules governing public comment during

the regular meetings of a town’s legislative body. Smith and Gagnon-Smith allege that
they are residents of Middletown, Connecticut. Compl., ¶ 3. The City is a municipal
corporation in the State of Connecticut, and defendant Santangelo is a member of the

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Unless otherwise noted, no genuine dispute exists over the following facts.
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Middletown Common Council (“Council”). Compl., at ¶ 4; Answer, at ¶ 4. The Council
is the legislative body for the City. Def.’s Local Rule 56(a)(1) Statement (“Def.’s
56(a)(1)”), ¶ 1. The Council consists of twelve members, and the Council has the
power, by majority vote, to adopt bylaws and ordinances for the conduct of the City of
Middletown’s business. Id. at ¶¶ 2-3. The City Charter provides that the Council is
responsible for determining its own rules of procedure. Id. at ¶ 4.
Prior to October 2, 2006, the Council allowed members of the general public to
speak on topics not on the meeting agenda before the segment of the meeting entitled
“Questions to Directors.” Id. at ¶ 9. This public hearing was televised. Id. On October
2, 2006, the Council adopted a new rule, Resolution No. 145-06, which moved the
timing of the public hearing on non-agenda topics to the end of the Council meeting. Id.
at ¶ 8. The resolution also terminated the video broadcast of the public hearing on nonagenda items. Id. After the passage of Resolution No. 145-06, the public was still
allowed to address the Council on agenda items during the regular meetings of the
Council. Id. at ¶ 11. Public comments on agenda items continued to be televised. Id.
at ¶ 11. The Council’s vote to pass Resolution No. 145-06 was unanimous. Id. at ¶ 18.
In November 2009, the Council altered its rules to move the “Questions to
Directors” segment of the meeting to an hour before the start of the Council meeting.
Id. at ¶ 36. After this rule change, the Questions to Directors were no longer televised.
Id. The Council also discontinued the public hearing on non-agenda items at the end of
Council meetings. Id. at ¶ 39. In its place, the Council created community public
meetings that are held monthly at one of six rotating locations. Id. The community

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meetings are devoted exclusively to public discourse with the Council on non-agenda
issues. Id.
The central factual dispute between the parties revolves around the motivation
for the rule changes governing public comment. The defendants have submitted
affidavits from members of the Council indicating that they voted to move the public
comment on non-agenda items to the end of the meeting in order to streamline the
meetings. Id. at ¶¶ 14, 19-21, 23-24, 27. At least one member of the Council was
concerned that members of the public were using the comment period to lecture rather
than inform the Council, and that the public was addressing the cameras rather than the
Council. Id. at ¶ 16. Council Member Gerald E. Daley indicated that he wanted the
official business of the Council to be finished earlier in the evening, while more
members of the public were still watching. Id. at ¶ 23. Council Member Elizabeth K.
Novera stated that she wanted to allow the town’s departmental directors to go home
before the lengthy period of public comment. Id. at ¶ 21. Members of the Council also
expressed their expectation that discontinuing the taping of the public comment would
save town funds. Id. at ¶¶ 23, 26-28; Ex. E, ¶ 11. Defendants provide affidavits from 10
of the 12 members of the Council stating that their vote for Resolution No. 145-06 was
not intended to prevent Smith or Gagnon-Smith from speaking publicly at Council
meetings or meant to silence the Smiths. Id. at ¶ 29.
Smith and Gagnon-Smith argue, however, that this was precisely the motivation
of the members of the Council. Plaintiffs assert that Santangelo admitted in a
videotaped interview that the content of the plaintiffs’ statements at Council meetings
were the reason for the October 2, 2006 rule change. Pl.’s Local Rule 56(a)(2)

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Statement (“Pl.’s 56(a)(2)”), Doc. No. 28, Ex. 1, at n.1. Despite citing the video multiple
times in their Local Rule 56(a)(2) Statement, the plaintiffs have not submitted the video.
However, the plaintiffs have submitted excerpts from their deposition transcripts in
which they describe their recollection of what Santangelo said in the video. The
plaintiffs further assert that the “defendants do not dispute that [Santangelo] made the
statements attributed to him . . . in the sworn deposition testimony of both plaintiffs.” Id.
According to the plaintiffs, in this videotape, Santangelo states that “a couple”
spoke before the Council “all the time,” and the Council had to change its rules and “turn
off the cameras to them.”2 Gagnon-Smith Deposition Tr. (Doc. No. 28, Ex. 2), at 47.
These statements are capable of multiple interpretations. Under one gloss, the
frequency and duration with which the plaintiffs spoke to the Council spurred the
Council to alter the rules for public comment. Under another interpretation, the Council
altered the rules for public comment because of a disagreement with the views the
plaintiffs expressed. Resolving all ambiguities and drawing all inferences in favor of the
plaintiffs, the court assumes that Santangelo: (1) was referring to the plaintiffs rather
than some other unnamed couple; (2) was representing the views of at least a majority
of the Council; and (3) was admitting that the Council’s motivation for changing the rules
for public comment was disagreement with the viewpoints the plaintiffs expressed.
After the resolution passed on October 2, 2006, Smith and Gagnon-Smith
addressed members of the Council on at least three additional occasions. Smith
Deposition Tr. (Doc. No. 28, Ex. 3), at 38-44; Gagnon-Smith Deposition Tr., at 26-29.
The defendants state members of the Council remained present to listen to any
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The plaintiffs concede that Santangelo did not identify the plaintiffs by name when
making this statement. Gagnon-Smith Deposition Tr. at 47; Smith Deposition Tr. at 51.
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members of the public who wished to speak after the Council meeting adjourned.
Def.’s 56(a)(1) at ¶ 31. However, the plaintiffs state in their depositions that Council
members would leave or have conversations with each other during the public hearing
on non-agenda items. Gagnon-Smith Tr. at 30; Smith Deposition Tr. at 38.
IV.

DISCUSSION
A.

Determining the Type of Forum

Defendants argue that the changes in the rules governing public comment on
non-agenda items did not deprive Smith and Gagnon-Smith of any rights under the First
Amendment. Mem. in Supp. of Mot. for Summ. J. (“Mem. in Supp.”) (Doc. No. 28), at
14. Ascertaining whether the Council infringed upon the First Amendment rights of
Smith and Gagnon-Smith requires the court to discern “the nature of the forum in which
the speech occurs.” Peck v. Baldwinsville Central School District, 426 F.3d 617, 625
(2d Cir. 2005). The Supreme Court has identified four types of fora for expression: (1)
the traditional public forum; (2) the designated public forum; (3) the limited public forum
(which is a subset of the designated public forum); and (4) the non-public forum. Id. at
625-66.
A public forum is a “place[] which by long tradition or by government fiat ha[s]
been devoted to assembly and debate.” Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983). This category includes streets, parks, and
other venues “which have immemorially been held in trust for the use of the public and,
time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions.” Id. (citation omitted). In a public
forum, content-based restrictions are upheld “only if they are necessary to serve a

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compelling state interest and are narrowly drawn to achieve that end.” Peck, 426 F.3d
at 626.
A designated public forum “is a place not traditionally open to public assembly
and debate . . . that the government has taken affirmative steps to open for general
public discourse.” Peck, 426 F.3d at 626; Make the Road by Walking, Inc. v. Turner,
378 F.3d 133, 142-43 (2d Cir. 2004). “[A] designated public forum, including a limited
public forum, arises only where the government intends to create one.” Make the Road
by Walking, 378 F.3d at 139. In general, “[s]peech in a designated public forum is
entitled to the same constitutional protection as that extended to expression in a
traditional public forum, so long as the state continues to designate the forum for such
use.” Peck, 426 F.3d at 626.
A limited public forum is a special type of designated public forum in which the
state “opens a non-public forum but limits the expressive activity to certain kinds of
speakers or to the discussion of certain subjects.” Peck, 426 F.3d at 626 (quoting Hotel
Employees & Restaurant Employees Union v. City of New York Dep’t of Parks &
Recreation, 311 F.3d 534, 545 (2d Cir. 2002)). “[A] category of speakers or expressive
activities may be excluded from a limited public forum only on the basis of ‘reasonable,
viewpoint-neutral rules.” Bronx Household of Faith v. Community School District No.
10, __ F.3d __, 2011 WL 2150974, *4 (2d. Cir. 2011); Peck, 426 F.3d at 626 (in limited
public fora, “the government may make reasonable, viewpoint-neutral rules governing
the content of speech allowed”).
Finally, a non-public forum is an area that has not traditionally been open to
public expression nor designated for such expression by the state. Peck, 426 F.3d at

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626. Like restrictions on speech in a limited public forum, “[r]estrictions on speech in a
non-public forum need only be reasonable and viewpoint neutral.” Make the Road by
Walking, 378 F.3d at 143.
Numerous courts have held that city council meetings which have been opened
to the public are limited public fora. See Rowe v. City of Cocoa, Fla., 358 F.3d 800, 802
(11th Cir. 2004) (“city commission meetings are ‘limited’ public fora”); White v. City of
Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990) (city council meetings, “once opened,
have been regarded as public forums, albeit limited ones”). Moreover, in prior litigation
between Gagnon-Smith and the City of Middletown, the district court found that the
public comment period during the Council meeting constituted a limited public forum.
See Gagnon-Smith v. City of Middletown, No. 3:02CV02138(RNC), 2004 WL 725666,
*1 (D. Conn. 2004). In the instant matter, the defendants argue that Council meetings
are a limited public forum, Mem. in Supp. at 11-12, and the plaintiffs do not dispute this
conclusion.3 Finally, the Council meetings resemble common examples of limited public
fora, which “include . . . open school board meetings.” Hotel & Restaurant Employees
Union, 311 F.3d at 545 (citations omitted). Therefore, the court will analyze the
Council’s decisions under the rules governing limited public fora.
B.

Permissible Restrictions in a Limited Public Forum

In a limited public forum, “a government entity may impose restrictions on speech
that are reasonable and viewpoint-neutral.” Pleasant Grove City, Utah v. Summum, 129
S. Ct. 1125, 1132 (2009) (citing Good News Club v. Milford Central School, 533 U.S.
98, 106-07 (2001)). “The necessities of confining a forum to the limited and legitimate
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Where the parties agree that a forum is a limited public forum, the court may agree to
this characterization. See Good News Club v. Milford Central School, 533 U.S. 98, 106 (2001).
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purposes for which it was created may justify the State in reserving it for certain groups
or for the discussion of certain topics.” Rosenberger v. Rectors & Visitors of the Univ. of
Va., 515 U.S. 819, 829 (1995). “[T]he operator of a limited public forum may engage in
‘content discrimination, which may be permissible if it preserves the purposes of that
limited forum,’ but may not engage in ‘viewpoint discrimination, which is presumed
impermissible when directed against speech otherwise within the forum’s limitations.’”
Bronx Household of Faith, 2011 WL 2150974 at *4 (quoting Rosenberger, 515 U.S. at
830). “[A] State’s restriction on access to a limited public forum need not be the most
reasonable or the only reasonable limitation.” Christian Legal Soc’y v. Martinez, 130 S.
Ct. 2971, 2992 (2010) (citation omitted). In addition, a limited public forum is a type of
designated public forum, and “the government may decide to close a designated public
forum,” Make the Road by Walking, 378 F.3d at 143. “[A] State is not required to
indefinitely retain the open character of [a] facility.” Perry Education Ass’n, 460 U.S. at
45-46.
Applying these principles, it is evident that the city council is entitled to restrict
public comment at its meetings to topics on the agenda. See City of Madison, Joint
School District No. 8 v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 178,
n.8 (stating in dicta, “[p]lainly, public bodies may confine their meetings to specified
subject matter”). Here, the Council adopted a resolution which accomplished precisely
this: it permitted the public to comment during Council meetings on topics listed on the
meeting agenda, and it permitted the public to comment after Council meetings, without
a television camera, on issues that were not listed on the meeting agenda. Resolution
145-06 is fairly characterized as content-based. Whether a member of the public is

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allowed to speak depends on whether the individual intends to address a subject on the
Council’s agenda. The individual’s viewpoint on a given subject does not affect whether
they are permitted to speak.
The restriction of public comment to items on the agenda is also reasonable
because it serves to confine the forum “to the limited and legitimate purposes for which
it was created” – in this case, facilitating the official business of the Council. “[T]here is
a significant governmental interest in conducting orderly, efficient meetings [of public
bodies] that are limited to a specified subject matter germane to an agenda at hand.”
Rowe, 358 F.3d at 804. “[A] City Council meeting is . . . just that, a governmental
process with a governmental purpose. The Council has an agenda to be addressed
and dealt with. Public forum or not, the usual First Amendment antipathy to contentoriented control of speech cannot be imported into the Council chambers intact.” White,
900 F.3d at 1425.
The facts of this case closely track those of the unpublished case, Webb v. City
of Joliet, No. 98C4871, 1999 WL 350829 (N.D. Ill. May 19, 1999). In Webb, the Joliet
City Council moved a televised period of public comment on non-agenda items from the
City Council meeting to a different day during what was called a “Pre-Council meeting[].”
Id. at *1-*2. The plaintiff in Webb argued that these actions deprived him of his right to
free speech and were targeted as silencing him in particular. Id. at *3, n.6. The court

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found the Joliet City Council’s policies to be content-neutral and reasonable.4 Id. at *5.
In the present case, this court reaches the same conclusion.
C.

Motivation for the Rule Change

“[T]he plaintiffs do not argue that the City of Middletown is constitutionally
required to allow the public to speak during the meetings of the Common Council.”
Mem. in Opp. (Doc. No. 28) at 5. Instead, the plaintiffs contend that the defendants’
actions were unlawful because the rule changes were made “because of the content of
the plaintiffs’ speech.” Id. at 6. Put differently, the plaintiffs are claiming that the rule
changes were undertaken to reduce the opportunity for the plaintiffs to voice opinions
with which the Council did not agree. As a consequence, plaintiffs argue that the rules
changes were tantamount to viewpoint discrimination.
Although perhaps intuitively appealing, this argument is not supported by
applicable precedent. Rules restricting speech at the Council meetings must be
viewpoint neutral, and those rules must be applied by the Council in an even-handed
fashion.5 However, it is the rules themselves which must be viewpoint-neutral: the
motivation for adopting a rule need not be viewpoint-neutral. This distinction was clearly
articulated by the Supreme Court in Hill v. Colorado, 530 U.S. 703 (2000). In Hill, the
Court upheld a law as content-neutral which prohibited individuals from knowingly

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The district court in Webb did not distinguish between designated public fora and
limited public fora, and therefore examined the Joliet City Council policies under the “same
standards as public fora.” Id. at *4-*5. The Webb court nevertheless concluded that the policies
did not infringe on the plaintiff’s rights under the First Amendment. Id. at *5.
5

Here, the plaintiffs do not allege that they attempted to speak on a matter on the
Council agenda and were denied the opportunity to do so during the regular meeting. The
plaintiffs also do not allege that they were denied the opportunity to speak on a topic of their
choice in the period reserved for public comment after the Council meetings, or the period
reserved for public comment in the monthly “community public meetings.”
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approaching another person within one hundred feet of a health care facility for the
purposes of “oral protest, education, or counselling,” without that other person’s
consent. Id. at 707. The legislative history for that law made it “clear that its enactment
was primarily motivated by activities in the vicinity of abortion clinics.” Id. at 715.
However, the Court held that the law was not “viewpoint based” merely “because its
enactment was motivated by the conduct of the partisans on one side of a debate” –
specifically, anti-abortion activists protesting outside clinics performing abortions. Id. at
724. The Court concluded that the speech restrictions were lawful because they
applied equally to anyone engaged in oral protest, education, or counselling, regardless
of their views on abortion.

Id. at 725.

Returning to the case at bar, the Council has adopted a Resolution which
restricts when a member of the public can speak to the Council about certain topics.
The restrictions apply regardless of an individual’s viewpoint on a given topic. The rule
itself is unquestionably viewpoint-neutral. “When the State establishes a limited public
forum, the State is not required to and does not allow persons to engage in every type
of speech.” Good News Club, 533 U.S. at 106. Smith and Gagnon-Smith concede that
the City of Middletown is not “constitutionally required to allow the public to speak during
the meetings of the Common Council.” Mem. in Opp. at 5. The plaintiffs, therefore,
have not suffered a deprivation of their First Amendment right to freedom of speech
because the Council decided to limit public comment during its meetings to items on its
agenda.
D.

Freedom to Petition the Government

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Defendants correctly observe in their Reply Memorandum that Smith and
Gagnon-Smith failed to respond to the defendants’ arguments regarding any possible
claim for infringement of the right to petition the Council. See Reply (Doc. No. 29) at 12. Accordingly, the court deems any such claim abandoned. See Carone v. Mascolo,
573 F. Supp. 2d 575, 591 (D. Conn. 2008). In any event, the right to petition the
Government for a redress of grievances does not include a right to speak at the public
hearing of a legislative body. Cf. Piscottano v. Town of Somers, 396 F. Supp. 2d 187,
206 (D. Conn. 2005) (holding that the “right to petition government does not include the
absolute right to speak in person to officials”).
E.

Defendants’ Other Arguments in Favor of Summary Judgment

Because the court concludes that the plaintiffs have not suffered a deprivation of
their rights under the First Amendment, the court does not consider the defendants’
alternative arguments regarding de minimus injury, qualified immunity, and legislative
immunity.
V.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion for Summary Judgment [Doc.

No. 27] is granted.

SO ORDERED.
Dated at Bridgeport, Connecticut this 1st day of September, 2011.

_/s/ Janet C. Hall____________________
Janet C. Hall
United States District Judge

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