UNITED STATES COURT OF APPEALS
AMERICAN LEGAL SERVICES
Martin G. Crowley
Nevada State Bar No. 3049
P.O. Box 426
Reno, NV 89504
Attorney for Plaintiff
DENIS EDWARD DEHNE, ...................................................NO. 03-15175
vs. ................................................................................APPEAL OF MOTION
.....................................................................................FOR SUMMARY JUDGMENT
.....................................................................................Re: THE "CLOWN" CASE
CITY OF RENO, a municipal
corporation, JEFF GRIFFIN,
APPELLANT'S REPLY BRIEF - OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Defendants have failed to pass the test that justifies anything even close to Summary Judgment. The District court has failed to apply the applicable standard.
Plaintiff offers the incontrovertible Truth about the flagrant Constitutional violations that are poignantly portrayed on the official video tape. It plainly exposes the offenses that were committed by the defendants on that day in June of 1999 (Dkt #9, Ex. 3).
The defendants say that they prefer to call Jeff Griffin the Mayor. Plaintiff refers to him as merely Griffin due to the fact that the extensive mendacities committed in violation of the Law (including the subject of this Complaint) throughout the period that he was masquerading as a Mayor abrogate any moral right to that title. As a matter of fact, his actions were so arrogant and reprehensible that he lost his support base, which then supported the successful candidacy of Mayor Bob Cashell.
The Defendants and their attorneys continue to refuse to "get it". Their response to the plain Truth presented in the Complaint filed by Denis Edward Dehne (also known as retired Air Force Lt. Colonel "Sam" Dehne and also widely known as The Encyclopedia of Reno Government) is merely more regurgitation of their original falsehoods. No matter how many times a lie is repeated... it continues to be a lie. And the defendants' sad attempts to obfuscate the Truth must not be permitted to confuse this court.
(The defendants claim that Griffin "declined" to run for reelection. The truth known is that his own polls showed him finishing no better than third in any Mayoral matchup and therefore ended his bid for reelection. Ans. Brief ftn. 1, p. 2).
Summary Judgment Simply Put
Summary Judgment: Rule of Civil Procedure 56 permits any party to a civil action to move for summary judgment on a claim, counterclaim, or cross-claim when he believes that there is no genuine issue of matter of fact and that he is entitled to prevail as a matter of law.
"Material fact: a fact is material and precludes grant of summary judgment if proof of that fact would have the effect of establishing (as is the case in this Complaint) or refuting one of the essential elements of a cause of action... and would necessarily affect application of appropriate principle of law to the rights and obligations of the parties."
The "material fact" that defendants violated the law (with regard to the Civil Rights of plaintiff) is "established" right there for all to see on the official video tape (Dkt #9, Ex. 3). For any entity to perpetrate the notion that there is no genuine issue of fact as a "matter of law" after viewing the official video tape (Dkt #9, Ex. 3) is ludicrous. The video tape conclusively portrays Civil Rights Laws being violated by defendants.
This Story is Plainly Depicted on the Video Tape
On June 22, 1999, plaintiff was a citizen and attendee at a Reno City Council meeting regularly scheduled and agendized and documented on official video tape.
After having sat quietly at this Public Meeting for some 5 hours waiting patiently to speak on the Agenda item, plaintiff Dehne submitted a standard Request to Speak form concerning an official Agenda item pertaining to televising of Reno Airport Authority Board of Trustees Meetings. This action clearly signified Dehne's wish to speak freely on this matter of importance and of public concern.
When this Agenda item came up for consideration, defendant Griffin, who chaired the meeting (despite orders to the contrary from the Nevada Ethics Commission), ignored plaintiff's official Request to Speak form until plaintiff pointed out in a wholly non-disruptive fashion from the citizens' portion of the chamber that he had a legal right to speak.
Defendant Griffin (with the clear and obvious endorsement of the rest of the city defendants), rather than honoring the official Request to Speak form as a matter of standing custom and policy, said he was not inclined to allow plaintiff to speak, and asked the rest of the city council to "vote" on plaintiff's Request to Speak. He then humiliatingly deposited the Official Request to Speak form in the garbage can by his chair.
Plaintiff quietly and respectfully stood in the citizens' portion of the chambers and discreetly pointed out to the city attorney that Griffin was wrong and that he had overstepped the bounds established by the Nevada Ethics Commission relative to his participation in matters relating to the Airport Authority. These bounds had been established for his participation in matters relating to the Airport Authority. These bounds had been established by the Ethics Commission, and this speech was thus on a matter of public concern. The city attorney then walked over and whispered something in the Griffin's ear, which plaintiff believes shows, included these matters of public concern ~ denial of a citizen's right to speak, and to speak about the referenced matters of public concern. Defendant Griffin ordered the meeting into recess.
Plaintiff then, in non-disruptive fashion, pointed out that Griffin and the other defendants had no right to recess the meeting before honoring plaintiff's official Request to Speak. Dehne had been waiting five hours for that agenda item. He is a "Watchdog" over local government activities. Griffin knew the "Watchdog" was on him as they had just come from an Ethics commission hearing less than two weeks prior. After this event, Griffin was found by the Ethics Commission to have violated its prior order not to participate in Airport business discussions. The conduct of Griffin was entirely illegal. It lacked authority and therefore his attempt to conduct a "vote" on allowing plaintiff to speak was illegal by itself.
Defendant Griffin ordered plaintiff removed from the meeting, stating: "Could we have somebody escort this clown out of this room?" and "I want this guy out of this room." EOR 25, lns 13-17. Griffin thereafter made it clear that Plaintiff was not allowed back in the meeting for the evening, a further violation of his right to attend a public meeting. EOR 26, ln. 8-9.
When the Public Meeting was reconvened, defendant Griffin admitted that he had acted inappropriately in discussing the agendized item and withdrew. Defendant even apologized to everybody except the person he had offended and humiliated- the plaintiff.
So to review as briefly as possible, we have the defendants' offenses documented on official video tape... as well as the defendant confessing! These offenses (and more) are clearly depicted on the official video tape (see Dkt #9, Ex. 3). Thus Summary Judgment is not, and should not have been, granted.
The District Court Order Does Not Pass the Test; Thus Must Not be Allowed to Stand
The district court judge is attempting to re-write the Law. Among many other problems with the Order that are insults to good government, the following aspects of his Order must definitely not be allowed to stand. If for no other reason than to reverse these two anti-good government assertions, this court should reverse the Summary Judgment Order and remand plaintiff's perfectly viable Complaint to a jury.
1. The district court judge accused plaintiff of being caustic and stated that he was not allowed to "... digress into caustic personal attacks on public officials... " EOR 66, ln. 22. First, this flies directly in the face of New York Times v. Sullivan 376 U.S. 254, 270 (1964). Second, plaintiff was plainly not being caustic in any way. This wasn't a "personal attack" on Griffin. Exposing his violation is not personal nor caustic. Such was simply stating the truth and informing the public of what was happening.
2. The district court further tries to write new Law by saying that "... a city council meeting is a non-public forum... ".
Pursuant to NRS 241.010, "...the legislature finds and declares that all public bodies exist to aid in the conduct of the people's business" and, pursuant to NRS 241.020, "Except as otherwise provided by specific statute, all meetings of public bodies must be open and public, and all persons must be permitted to attend any meeting of these bodies."
Further, pursuant to NRS 241.020(2)(c)(3)"...a period devoted to comments by the general public, if any, and a discussion of those comments must be included on each meeting agenda." A forum, in part, is a meeting for public discussion; a Reno city council meeting commonly, historically, and by precedence has included discussion of issues between citizens and their elected city officials. The meaning of the above established official cites can not be obfuscated or misconstrued to hold that, in Nevada, meetings of the Reno City Council are NOT public forums. To hold that any public body can aid in the conduct of the people's business by excluding citizens and/or their thoughts addressed to their public servants is an attack on the foundations of American democracy. To fallaciously remove the people from the conduct of their business is not aiding ... but rather usurping power from the governed.
If this court upholds the postulate that Reno city council meetings are not public forums, and if citizens can no longer be caustic (even though plaintiff was not) when referring to their public officials (in direct contradiction to the dictates of "Times v. Sullivan"), then the entire concept of American democracy may as well be thrown in that same garbage can with retired Air Force officer Sam Dehne's Request to Speak form.
Why Dehne "Demanded" to Make Defendants Obey the Law and Allow Him to Speak
As an Air Force officer who continues to honor his sworn Oath to defend the United States Constitution against all enemies, foreign AND domestic, Dehne had a sworn duty to "demand" to speak in order to point out the fact that Griffin was blatantly and arrogantly flaunting and violating the dictates of the Ethics Commission decree that was addressed just a few days earlier at an official Nevada Ethics Commission Hearing. Additionally the city attorney was sitting idly by and allowing Griffin to commit these transgressions. That can be considered the "heart" of this argument and the Complaint.
An officer's sworn oath does not end at retirement. Furthermore, Dehne had been instilled with an Honor Code at the United States Air Force Academy that he swore to uphold. ("I will not lie, steal, or cheat, or tolerate anyone who does.") Griffin was "cheating", and Dehne refused to "tolerate" it.
It is a citizen's duty to monitor his/her government and support, protect, and defend the Constitution. That is what Dehne had been doing for years at the Reno city council. It was what he was attempting to do on this day in question. Defendants were pulling out the stops to prevent Dehne from carrying out his sworn duty. This can be plainly seen on the video tape without a scintilla of doubt to any astute and fairminded observer. (Dkt #9, Ex. 3)
The "Best Evidence Rule"
The very "Best Evidence" is on the official video tape. Why look at a printed version of a video tape, when the original video tape is available for actual viewing? A picture is really worth a 1,000 words.... The defendants continue to obscure the true facts and discuss others that have no relevance to what is conspicuously viewable on the official video tape (Dkt #9, Ex. 3).
What Went Wrong at the Meeting of 22 June, 1999
The video tape shows the defendants committing the crime (It is a misdemeanor crime in Nevada to wrongfully exclude a citizen from a public meeting.) NRS 241.040. 2. "Wrongful exclusion of any person or persons from a meeting is a misdemeanor."). And then the official video tape (Dkt #9, Ex. 3) even goes on to distinctly show the defendants acknowledging and confessing to the crime.
The defense argument could go on ad infinitum. But it is time to let the unbiased collective wisdom of this court look at the video tape and decide this matter. Then the court should remand this matter back so that a jury can determine the punishment to be meted out.
A trial by a jury of average citizens is all that retired Air Force officer plaintiff Dehne is asking. Dehne spent 20 years defending Democracy and government as a military officer, and then he has spent the last 8 years on the Crusade to make sure his efforts were not, and are not, in vain. For a change he would like to see some good government in action.
The official video tape (Dkt #9, Ex. 3) shows:
Griffin did not disclose his contract.
Griffin did not leave the meeting during the discussion of airport issues. As a matter of fact, he tried to filibuster to keep airport issues from seeing the light of day via televising of their meetings. He obviously did this because he did not want citizens watching Dehne at the airport meetings pointing out the abuses of Griffin's questionable Contract with the airport.
Griffin did not abstain and was preparing to vote on the airport issue.
City attorney Lynch refusing to interject and tell Griffin he was in violation of the Ethics Commission Decree even though her office was the entity that tried to "defend" Griffin at the Hearing of 10 June, 1999.
Dehne quietly and patiently waiting for the official time to speak on this critical Agenda Item. He had waited 5 long hours to perform his citizenry duty.
Defendants preparing to violate the law and all past precedent (as well insulting the sensibility of any citizen) by taking the action of voting to determine whether or not they would listen to Dehne. The Reno rules stated specifically that citizens "must" speak on Agenda items at the time that Agenda item is addressed.
The video plainly shows Griffin saying he wanted to abrogate the 1st and 14th Amendments and deny Dehne his right to address the public body.
Finally the video plainly shows Griffin confessing to his crime, with the acquiescence of the rest of the defendants including city attorney Lynch.
The retired Air Force officer plaintiff offers as his Points and Authorities the United States Constitution. And specifically the 1st and 14th Amendments. Defendants had no legal or moral authority to refuse plaintiff's Request (and lawful right) To Speak. Defendants had no legal or moral authority to take a vote on who they want to pick and choose to speak. Defendants had no legal or moral authority to conduct an illegal meeting with Griffin running the meeting and talking during Agenda items about the Reno airport.
Conclusion and Request to Court
1. Defendants want this court to believe that this person they call the Mayor was so ignorant and absent-minded that he could not remember that he had been brought before the Nevada Ethics Commission just 12 days before and exigently reminded that he was to disclose his airport contract and steer clear of airport issues at city council meetings.
2. Defendants further want the court to believe that the Reno city attorney's office, who "defended" Griffin at the Hearing just 12 days earlier, was also unable to remember the dictates of the Ethics Commission. The video tape shows that this City Attorney sat idly by at the meeting letting Griffin abuse his authority and filibuster about airport issues in contradiction to the Ethics Commission Decrees.
3. Defendants want this court to believe that there was even an inkling of speculation that Griffin was going to let plaintiff speak. Any person with common sense who views the video tape can see Griffin was not about to allow Reno's Watchdog to speak and expose defendants' perversions.
4. Defendants want this court to believe that it is alright to mutilate the 14th Amendment by taking a vote to pick and choose which citizens the city council wants to let speak on issues of pubic concern. This is an egregious act, that violates the 14th Amendment, as well as the 1st.
5. Defendants want the court to believe that it is alright for defendants to allow the plaintiff's official Request to Speak form to be flippantly slipped into the garbage. Then they come forward with the premise that plaintiff might have been allowed to speak later... even though his Request to Speak form was lying disgracefully down in the garbage.
6. The Defendants want the court to think it is alright for plaintiff to have to waste a further (unknown) amount of time waiting for the very questionable and dubious outcome of a vote as to whether defendants (who obviously did not want to hear what Dehne had to say) were even going to let Dehne speak... after already voicing their objections to his Request. This was a vote that was fraudulent from its very conception.
7. Defendants want the court to believe that the plaintiff was removed for disruptive behavior. He was not. He was removed by a guilty party who knew he was violating the Ethics Decree and only plaintiff would so inform the public. Without plaintiff inserting himself into the meeting, the public would not had known about the Ethics Violation being committed. Griffin and the City of Reno and the Reno city attorney are not empowered to disregard orders of the Ethics Commission to suit their own convenience or for any other reason. The subsequent reprimand of Griffin by the Ethics Commission is continuing evidence of this fact.
8. The Defense wants the court to believe that Dehne should have defied his Sacred oath and continued to participate in this abomination; after watching this defendant city council in action for not just 5 hours, but for 5 years (as of that time).
9. The Defense now even wants the court to accept the distorted notion that Griffin did not have to leave the meeting during discussion of airport matters when even he (after an hour of contemplation with his attorney) acknowledged his guilt and left the meeting to go back with the "chocolate cake". And even then he still never did disclose his contract to the public as Ordered by the Ethics Commission. EOR 28-29.
Defendants glaringly, brazenly, and shamelessly violated the Civil Rights of Reno Watchdog, Sam Dehne, in a most humiliatingly manner in front of God, everybody, AND the TV camera. They did this in order to chill oversight of their activities by this acknowledged retired Air Force officer and long-time Reno Watchdog. And now this court can see the violations for themselves on the official video tape (Dkt #9, Ex. 3). The court can see that it was defendants who "disrupted" any sense of good government and the sensibilities of good citizens everywhere.
There IS a genuine issue of material fact. Plaintiff's 1st Amendment (AND 14th Amendment) rights were flagrantly abridged on 22 June, 1999. Plaintiff respectfully requests that this matter be remanded for a trial before a jury as set forth in the Constitution.
DATED this May 5, 2003.
Martin G. Crowley, Esq.
Attorney for Appellant - DENIS DEHNE
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