Nevada County Courthouse Moves to Restrict Demonstrators
November 3, 2011
By Liz Kellar
The Nevada County Superior Court has issued an order prohibiting “expressive” activities inside county courthouses or on courthouse grounds.
The formal written policy, which was being circulated for signature by the court’s judges, comes in the wake of a free speech flap involving a group known as Family Court Reformers.
Two reform advocates were asked to leave the courthouse by Court Executive Officer Sean Metroka after they entered the building Oct. 5, and allegedly were warned they could be cited for a misdemeanor for obstructing business.
Organizer Emily Gallup and volunteer Don Bessee have been on the courthouse steps for several months, handing out flyers to people heading to Family Court orientation on Tuesdays and to Family Court hearings on Wednesdays.
Gallup, a former Family Court mediator, was fired in December 2010. She filed a grievance and won an arbitration award ordering an audit of Family Court, but the award was overturned at the end of April.
Gallup, who alleges the court violated state statutes and its own rules, has a wrongful termination suit filed in Superior Court, which will likely not be heard until April 2012.
Following their ouster from the courthouse, Bessee and Gallup contacted the American Civil Liberties Union, which sent Metroka a letter last week that delineated its concerns over a possible violation of constitutional free speech rights, and that requested the court and its staff not interfere with peaceful free speech activities.
ACLU staff attorney Linda Lye wrote that the advocates’ activities were protected by the First Amendment and there was no valid basis for asking them to leave the courthouse.
Prohibiting Gallup and Bessee from passing out leaflets inside the building “may amount to viewpoint discrimination, since their brochures advocate family court reform, and you and Ms. Gallup are adversaries in a pending lawsuit,” Lye wrote.
“The Supreme Court had long held that protected speech may not be regulated merely because a government official disagrees with the speech’s content.”
Metroka contends state laws prohibit impeding anyone’s access to court services, however.
“The U.S. District Court (has) concluded that state courthouses are nonpublic forums,” Metroka wrote in an e-mail. “The government can control access so long as their regulations are reasonable, and that the interest in free expression does not outweigh the ‘strong interest in ensuring that the courthouse was free from actual or perceived partiality and was safely and easily accessible to the members of the public that had business there.’”
The Family Court Reformers do not have the right to hand out material inside the courthouse without the court’s permission, Metroka said, adding that they were not singled out and that their removal was part of a long-standing policy.
An attorney from the Administrative Office of the Courts has responded to the letter, Metroka said.
“My understanding is they corrected the ACLU attorney’s understanding of the facts,” he said, adding the ACLU letter stated, incorrectly, that Gallup and Bessee had been distributing brochures inside the courthouse for several months.
“That was simply not true,” Metroka said. “They had been on the front steps, except for that one day when I asked them to leave. That point is important, because this was not a past practice that had been allowed. It has been among our policies not to allow that.”
Formal policy recommended by ACLU
The ACLU attorney “recommended we issue a formal written policy regarding expressive activities such as demonstrations, distributions, and solicitations in and around the courthouse,” Metroka added. “That has been done and is currently being routed to the judges for signatures.”
The order issued by the court is intended “to ensure the safe and orderly use of court facilities; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceable conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets around court facilities; and to maintain proper judicial decorum.”
The order is intended to facilitate access to the courthouse, and will be enforced in a “content-neutral fashion.”
Prohibited activities include demonstrating, picketing, proselytizing, distributing literature or other materials to the general public, soliciting sales or donations, or engaging in protest, education or counseling, according to the order.
Those activities will be prohibited within county courthouses, as well as within 8 feet from doorways to the courthouse. No one will be allowed to obstruct, harass, or interfere with people entering or leaving, or waiting in line to enter, or approach anyone waiting in line within 8 feet, without their consent. Amplification equipment is also prohibited if it is used in a harassing or interfering manner, according to the order.
ACLU dropping issue, Metroka said
According to Metroka, the ACLU is not planning any further action; representatives from the ACLU did not return calls for comment.
“They agreed to drop the issue, because there isn’t an issue to address,” Metroka said.
Metroka insisted the new general order does not target the Family Court Reformers and that similar written policies are in place for many county courts.
“This issue is far bigger than Emily and her current campaign,” he said. “This is not directed specifically at Emily. This is trying to preserve access to the courthouse and the impartiality of courthouse. It’s not intended to do anything but that.
“The real issue is not whether or not the court agrees with a particular activity, or whether there’s any merit to the claim that we violated their constitutional rights,” Metroka added. “Courthouses are a nonpublic forum.”
For their part, the Family Court Reformers have resumed their court-watching activities, Bessee said, although they are not trying to distribute any brochures inside the courthouse.
Bessee had not seen a court’s general order and said he was concerned about the restrictions.
“We want to understand what the rules are and operate within them,” he said, adding, “We’re going to reach out to some other groups and let them know this is transpiring.”