Legal: Park as Public Forum

January 15, 2012 admin Working Group NotesComments Off

The Legal working group for Occupy Santa Cruz files in favor of federal jurisdiction, citing America’s history of parks as public forum. Constitutional rights trump the well-being of an acre of lawn.

Honorable Howard R. Lloyd
Magistrate Judge
Northern District of California
San Jose Courthouse
Courtroom 2, 5th Floor
280 South 1st Street
San Jose, CA 95115

Re: People of the State of California, ex rel John G.
Barisone, City Attorney, City of Santa Cruz v. Steve
Pleich, Occupy Santa Cruz, et. al.
United States District Court Case No. CV 11-05523-HRL

Dear Judge Lloyd,

Defendant/Counter Claimant Steve Pleich hereby respectfully
submits the following in support of the Notice of Removal
filed in the above-referenced action.

This responding party is mindful that the court’s removal
jurisdiction may not be invoked unless it is shown by a
preponderance of the evidence that a federal question is
properly before the court and must do so relying solely on
the face of a “well pleaded complaint” [see generally Gaus
v. Miles,Inc. (9th Cir. 1992)980 F2d 564, 566; Rivet v.
Regions Bankof Louisiana (1998)522 U.S. 470, 475, 118 S.Ct.
921,925]. However, a Plaintiff may not, by “artful
pleading” disguise an otherwise basic and unadorned federal
question as one of state law only and thereby defeat an
otherwise well taken request for removal [see generally
Shroeder v. Trans World Airlines, Inc. (9th Cir. 1983) 702
F2d 189,191].

In the instant case, Plaintiff’s Complaint facially
characterizes Defendant Occupy Santa Cruz as a “protest and
demonstration” and entirely bases its claim on defendant’s
activities in a public park. This responding party
respectfully submits that it is disingenuous in the extreme
for Plaintiff to assert that the issues arising on the face
of their Complaint sound in anything other than the
constitutional guarantees of freedom of speech and freedom
of assembly as they are expressed in a “traditional public

It is well established that public parks have historically
been considered public forums closely associated with the
free exercise of expressive activities [see Hague v. CIO
307 U.S. 496, 515-516, 59 S.Ct. 954]. Moreover, counsel for
Plaintiff admitted in open court that the closure of the
campsite which was alleged to have been the “public
nuisance” described in its Complaint effectively rendered
the question “moot” for purposes of this litigation. That
being so, the only remaining issues to be litigated on the
face of the Complaint sound only in the legality vel non of
the protest and demonstration activities including, but not
limited to “camping”.

This responding party respectfully submits that is a
constitutional question of great note and interest and one
properly submitted to the consideration of a federal court
[see particularly Clark v.Community for Creative Non
Violence 468 U.S. 288(1984).

In consideration of the foregoing, this responding party
respectfully submits that the invocation of the court’s
removal jurisdiction is merited as a matter of law and
respectfully requests the court so find.

Very Truly Yours,
Steve Pleich
Attorney for Defendant
In Propria Persona

cc: Ed Frye, Esq.
John G. Barisone, Esq.