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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

June 2004, vol. 5, no. 5

Open Meetings Act-Right to participate

Rowe v. The City of Cocoa, FL, 11th Cir.(1-28-04)

The City of Cocoa enacted regulations limiting the right of non-residents to speak during its city council meetings. The regulations in part stated:

In its discretion, the Council may set aside up to 30 minutes of each regular meeting for delegations. The purpose of such delegation is for any resident or taxpayer of the city to make his/her views known to the city council upon any subject of general or public interest.

The council recognizes the delegation is for the purpose of legitimate inquiries and discussion by the public and not for the purpose of advancing arguments or repetitious questions concerning matters which the Council believes to be closed or are not a general public concern. The Councils shall have the right at any delegation to decline to hear any person or any subject matter upon proper motion and majority vote of the Council.

The regulations further provided that the Council by majority vote could decline to hear any person who is not a resident or taxpayer of the City subject to certain exceptions such as if the person was a user of the City's water or sewer system. Plaintiff Rowe was not a resident of the City of Cocoa but regularly attended their city council meetings, speaking several times on matters of general interest and public concern. At two particular meetings the mayor invoked and applied the residency rule limiting Rowe's comments during the public comment portion (the delegations) to matters on the city council's agenda that evening.

Rowe brought suit against the City and the mayor under 42 USC § 1983 for declaratory, injunctive and compensatory relief alleging violation of his First Amendment rights to freedom of speech and expression, as well as a violation of his Fourteenth Amendment right to equal protection. A District Court granted summary judgment to the mayor on all claims and subsequently entered judgment in favor of all defendants.

On appeal Rowe argued that the City's residency requirements for speakers violates his First and Fourteenth rights by making an impermissible distinction between resident and non-resident classes. Jones v. Heyman, 888 F.2d/1328 (11th Cir., 1989). The 11th Circuit Court of Appeals noted that a City commission meeting is one forum where speech may be restricted to specified subject matter. It noted that such meetings are a limited public forum and as such government may restrict access by content-neutral conditions for the time, place and manner of access, which are narrowly tailored to serve a significant government interest.

The Court noted that there is a significant governmental interest in conducting orderly and efficient meetings of public bodies and that restriction during public debate may be said to have served a significant governmental interest in conserving time and ensuring that others have the oppportunity to speak. Wright v. Anthony, 733 F.2d 575 (8th Cir., 1984). Illinois' Open Meetings Act insures the right of the public to attend but does not grant any right of participation. Persons may only attend and witness the proceeding. People v. Thompson, 56 Ill. App. 3d 557 (1978). The Rowe Court further noted that as a limited public forum a city council meeting is "not open for endless public commentary speech but instead a limited platform to discuss the topic at hand." Addressing the equal protection claim, the Court noted that it is reasonable for a City to restict the individuals who may speak at meetings to those individuals who have a direct stake in the business of the City, including citizens of the City or those who receive utility service from the City so long as that restriction is not based on the speaker's view point. The grant of summary judgment to the City was therefore affirmed on appeal.


This article was originally published in the ISBA's Local Government Law newsletter, April 2004, Vol. 40, No. 7, and is reprinted with permission.