Lawsuit Threat Targets Limits on Public Speakers at City Meetings

Judith Scherr
Friday June 16, 2006



The woman grabs the arm extending from the cylindrical drum and rotates it three times causing several dozen cards within it to fly. She stops the motion, opens the device and reaches for one card, then another. When 10 are picked, the City Clerk reads the names inscribed on each. 

The 10 chosen at council meetings, up until recently, earned the exclusive right to address the mayor and council in public. 

But SuperBOLD (Berkelyans Organizing for Library Defense) says that system of choosing speakers limits free speech. The group threatened to sue both the city and the library, whose trustees also choose speakers by lottery.  

“A combination of public criticism and the threatened lawsuit has certainly forced the City Council to think about the issue a lot more,” said Councilmember Kriss Worthington. 

The council addressed the issue in closed session Monday, the irony of which was not lost on Worthington. 

“It’s funny we’re talking about this in executive session,” he said in an interview before the Monday session. “It’s much healthier if the actual analysis of public comment could be made in public.” 

It looks like a public airing will happen. In an interview Tuesday, Mayor Tom Bates said he would place a discussion on the subject on the June 27 council agenda. 

“It’s important to have a public discussion” on the question, Bates said.  

Meanwhile, he added, “I’ll be exercising more latitude.” 

In fact, at the Tuesday evening City Council meeting Bates had the City Clerk call 15 people to speak for two minutes each, rather than 10 people for three minutes each, then asked others in the public to speak if the issue they had come for had not been addressed. 

And Library Trustee Ying Lee said, with new library leadership—the library director who acts as secretary to the trustees has been replaced—new systems are likely to be instituted. 

Sophia Cope, attorney with the First Amendment Project, representing SuperBOLD in the threatened lawsuit, addressed the question of the lottery in an April 19 letter to the city attorney: “The public comment lottery system improperly denies willing speakers the right to address the council and board at public meetings and it improperly prevents certain agenda items from receiving public comment.”  

“There are lots of people who want to speak, but don’t get to,” said Gene Bernardi, a founding member of SuperBOLD and a regular attendee at both council and library meetings. 

But in a May 11 letter to Cope, City Attorney Manuela Albuquerque countered that Berkeley already provides sufficient avenues for public input. 

“Berkeley City Councils have, for many years, with little fanfare, used a variety of mechanisms to ensure and maximize public input,” she wrote, citing “over 40 boards and commissions with citizen commissioners [that] preside over a lively and robust public debate and discourse on a gamut of public policy issues.”  

The public can submit comments to the council by letter or the Internet and the council holds public hearings both required and not required by law in which every member of the public can speak, the city attorney said. 

“Thus it appears that the council already receives extensive public comment both orally and in writing on subjects both on its agenda and within its jurisdiction, much of which is cumulative and repetitive from one meeting to the next and which often overlaps with public hearings on the subject,” Albuquerque wrote. 

Bates said that one concern, when considering various scenarios for increasing public comment, is council gridlock caused by permitting too many speakers. But Bernardi said there are ways to avoid that, such as the council holding additional public hearings on days it has no scheduled meeting. 

“Democracy is not an easy thing,” Bernardi commented. 

According to Cope, the bottom line is that the city and library must make changes “or we’ll put (the lawsuit) in front of a judge.”