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 forum”. 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.