Appeal of Joe Walsh
Hearing Case No 3140345
Arguments to refute the City of Portland’s submission Exhibit #27.
City’s Motion to dismiss case and quash subpoenas.
The city bases its position that the case is now moot because the decision by the Hearing Officer “Will have no practical effect,” they site Brumnett v. PSRB, 315 Or 402, 405-406 (1991). In the sited case the court said, “If, because of changed circumstances, a “ ‘decision no longer will have a practical effect on or concerning the rights of the parties,’ “ the case is moot and will be dismissed. Yancy, 337 Or at 349 (quoting Brumnett v. PSRB, 315 Or 402, 406, 848 P.2d 1194 (1993)).
We submit that this case is ongoing and continues to have a serious practical effect and point to Exhibit #6 or RE: Notice of Exclusion from City Property, Item # 9
“After the term of exclusion expires, you will once again be allowed to attend City Council sessions, and to give oral public testimony in accordance with the Rules of the Council, including such limitation as are imposed by the presiding. Should you engage in further disruption of the Council, you should be aware that any future exclusion is likely to be for a significantly longer period of time.”
The City has by their own words threatened future actions based on this 30 day exclusion so; the mootness question is answered not just by us, but by the city itself. When entering the City Council Chambers I am now under the gun and that has a chilling effect on any activist. The fact that acting as an activist attending most council meetings that there will be another confrontation is very real. For both reasons one cannot say, “Hearing on November 3, 2014 of the appeal to an expired exclusion will have no practical effect.”
A question the Hearing Officer must consider is this appeal timely? We followed the city instructions to appeal this case and now they say, “…the appeal to an expired exclusion will have no practical effect. The appeal should be dismissed.” If the Hearing Officer adopts that line of thinking he would have to admit that in my case and any case that the city is involved in would be moot. We consider Brumnett does not and cannot apply here. The mootness argument should be rejected.
The second question the city raised is one of Privilege. The city seems to be suggesting that the mayor and commissioners enjoy some blanket immunity from being questioned in a civil process. We disagree and do not read State v. Babson the way the city does. We offer the same case and point out that the case was sent back in part for the trial judge to allow the questioning of the elected officials:
State v. Babson
“….are not exempt from neutral laws that do not target assem-
bling, instructing representatives, or applying for redress of
grievances. The Oregon Constitution does not prohibit the
government—in this case, the Legislative Administration
Committee—from enacting laws in terms that do not target
speech or the rights protected under Article
I, section 26, even if those laws may have some incidental impact those
rights, as the guideline at issue here does.”
“For the reasons discussed above, on its face, the
guideline does not violate Article
I, section 8, or Article1, section 26, of the Oregon Constitution. The case must be
remanded, however, to permit defendants to question the
co-chairs of the LAC about their role, if any, in enforcing the
guideline against defendants. Based on that testimony and
the other testimony presented, the trial court must determine whether enforcement of the guideline was a reasonable restriction on the time, place, and manner of defendants’expression and assembly, or whether it targeted defendants because they were engaged in expression and assembly, and
therefore violated Article I, section 8, and Article
I, section 26, as applied to defendants. Because of our resolution of
that issue, we do not reach defendants’ First Amendment
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded for further
The exception to Article 1, section 26 of the Oregon Constitution the city is searching for does not exist with State v. Babson because in that case the question was can the government pass laws concerning the security of the public building that may or may not infringe on the right to protest. In the case before us now, I was totally banned from exercising my legal right to instruct my representatives by the exclusion. They barred me from the hearing for 5 weeks, not the steps after 11:00 PM as in the sited case. There is another case that we would offer:
Millbrook v. United States
“Are prison guards, as officers of the United States government, protected by the sovereign immunity of the United States against intentional tort claims when they are acting within the scope of their employment??
There is a standing proposition that no one is above the law, government guards or city official are not above the law when a tort is committed and are only immune when performing their official duties, in the case before us, the questioning of the 3 officials has nothing to do with their official duties. The questioning of these officials has to do with what/ who they talked to and or instructed to act to exclude me for 30 days. There was no action that can be pointed to that would fall into the privilege or immunity during the time they were acting as representatives. During the Council Hearing I was ordered out of chambers and not excluded from anything until a week later. The order to exclude me was signed not by a politician but by Mr. Bryant Enge, Director Bureau of Internal Business Services. My appeal has always been directed at Mr. Enge and not the three subpoenaed members of the City Council. They are being called outside their official duties to testify what role they may have played in ordering and/or instructing anyone to monitor my actions and create a file that goes back almost a year of my attending City Council meetings. Therefore I submit the case is not moot and there is no legislative privilege and the case should be heard and a decision on the merits of the appeal made.
In Support of my motion: “Concerning Hearing Held on November 3, 2014” I will let it speak for itself.
We would only add that if you find in my favor the 3 politicians be held in contempt and ordered to appear.
* CITY NO SHOW *
Lone Vet banned
from attending city
You might be interested in an appeal of my banishment from city hall. I was excluded from city hall on the 17th of September for 30 days and nights for alleged bad behavior. I appealed and there will be a second hearing on November 3, 2014 at 08:30 AM at the Hearing Office, 1900 SW 4th Ave. Rm 3100. What makes this hearing of interest is that the Hearing Officer has granted my request that Mayor Hales, Commissioner Fritz and Commissioner Fish be called as witnesses, (hostile.) They will be subpoenaed by me via a representative, Mr. Bryant Enge, Director, Bureau of Internal Business Services, 15 of October, 2014. The appeal is based on my right to petition government as outlined in the US Constitution, Oregon Constitution, City Charter, and to steal a line from my good friend, Thomas Paine, "Common Sense."
THE LONE VET
BANNED FROM CITY HALL?
[floor 2 & 3]
Individuals for Justice founding member, The Lone Vet, has papers in his hand in front of city hall, from just being served that morning, telling him he cant go to the 2nd or 3rd floor of that building.
After talking with me about this "muzzling" and being "shut down" he then enters the building, and is briefly challenged by the security staff, before going up to floor 4, which is the office for "the City Attorney'
There are three people standing outside of City Hall, one an Activist and he/she has a loud bullhorn in their hand so better for the mayor to hear what is said outside his office window. The volume is turned way up, and all in the area can hear, "Come out, come out little piggy or we will blow you house down!" The second person standing on Fourth Avenue waiting to be invited inside is the Advocate.
The Advocate is a gentle person who will go through the required staffer to arrange a meeting, they see themselves as representing those with little influence in politics; they are good and noble people. They create organizations, nonprofits to try to balance the state of power whether it is local or national, they get along.
There is the third person who will not stand but sit in the automobile waiting for that lunch date and that is the diplomat. They will often run interference between the first two and the political figure hiding in the fortress be it the Bastille or just any city hall. One of the great problems when dealing with politicians is we do not know who we are, there are some activists who will never ask anything from a politician, they demand or will confront the person and embarrass them to no end. Good example of effective activists was the Gay Rights organization of the 70s called "Act Up." Currently, we have a group of women who call themselves "Code Pink." Both groups will interrupt a press conference, stop a presentation by a Secretary of State, and embarrass the hell out of some politician who is saying nothing but is taking a long time saying it. I make no bones about it; these noble people are my favorite type of organizers. I consider myself in this group; but we need all three.
Here is what Code Pink looks like working:
READ THIS FULL ARTICLE ON OUR blog page-->
Dear Commissioner Fritz, 7/3/2014
This is a request that your Parks Department/Bureau take care of a problem that has apparently been going on for some time. I was in Chapman Park yesterday, July 2, 2014, I had to use the restroom and found that the men’s room did not have a door on it. This was disturbing to me and I want this taken care of immediately. I was made aware of a message your managers sent out to Joe-Anybody and that was outrageous.
read the rest ... on our Actions ! page
ZAPATISTA SOLIDARITY RALLY
In front of the Mexican Consulate in Portland Oregon
June 27 4:00
This ACTION is on Friday
1305 SW 12th Ave, Portland, Oregon 97201