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The Price of Rights


City Seeks Legal Fees from Occupy
By Jeremy Morrison

Michael Kimberl was making an effort to come out of his shell, to connect to a wider community. Besides, he was already on the front lines, why not take the next logical step?

“I had already put myself out there,” Kimberl recalled. “Why hide now?”

An active volunteer with Food Not Bombs, Kimberl was naturally attracted to the emerging Occupy Pensacola movement in the fall of 2011. He relished the dialogue and looks back on the dissipated movement as being instrumental in bringing attention to social and economic inequalities.

“When we first started, we always talked about the main goal, if there was any, was to change the national conversation, and that definitely happened,” Kimberl said. “I do think it did accomplish that goal.”

Kimberl marched with Occupy to Pensacola City Hall, where tents were pitched on the lawn. When city officials eventually booted the campout, he took the next step. He signed onto a lawsuit against the city.

“First and foremost, I felt that my First Amendment rights had been violated,” the activist explained.

Occupy Pensacola—in line with the overall Occupy Wall Street movement—was a leaderless group. An amorphous movement sans members.

The local Occupy lawsuit, however, is not amorphous. It lists three Occupiers as plaintiffs: Kimberl, Gary Paull and Sara Beard.

A local judge ruled against Occupy Pensacola in November. With the group appealing the ruling, the city of Pensacola now intends to recoup legal fees from this trio.

“In my personal case, I don’t have the money,” Kimberl said. “I have no idea how I would pay for that.”


Round One Fun

On Election Day 2012, Judge Roger Vinson ruled against Occupy Pensacola in its case against the city. He agreed with city officials that an existing ordinance prevented long-term camping on public land.

“The dispositive question is simple and straightforward,” Vinson wrote in his ruling. “Can the plaintiffs pitch tents and ‘occupy’ a centrally-located piece of public land for an indefinite period of time?”

In response, Occupy’s attorney, Alistair McKenzie, filed an appeal. According to a statement release by the attorney at the time, the move was met with a warning from city hall.

“Today,” McKenzie wrote, “the city of Pensacola informed my clients, regular citizens of Pensacola, who have merely sought to have their constitutional rights vindicated in court, that unless they drop the appeal filed in the 11th Circuit in the Occupy case, that Mayor Hayward will be seeking attorney’s fees and costs against them.”

Pensacola spokesman Derek Cosson disputed that claim. He said the city was intending to recoup legal fees regardless of the appeal.

“The taxpayers have spent quite a large amount of money defending this case,” Cosson said. “We’re gonna move for recovery of attorney fees one way or the other.”

Following the ruling, McKenzie approached the Pensacola City Council about the legal fees. The attorney found no sympathy in council’s chambers.

McKenzie then filed a response to the city’s motion seeking legal fees. He argued that such action would “chill, frighten and intimidate all persons who would seek to have their federal constitutional rights determined in a court of law.”

‘Learning as I Go Along’

Kimberl isn’t an experienced legal wrangler. The Occupy suit is serving as his introduction.

“I’ve never been involved in a lawsuit before,” he said. “I’m kinda learning as I go along.”

If the city prevails, it could prove an expensive education. The lesson: think carefully, challenging authority could be costly.

“I think that’s ridiculous,” Kimberl said. “I think it will scare people out of going to court over First Amendment Rights.”

Insofar as the appeal goes, the activist seems a realist.

“I’m hopeful in the appeal, but at the same time I’m starting to think the whole game is rigged,” Kimberl said. “I think we should win, but I’m not sure we’re going to win.”

Judge Vinson’s Election Day ruling has soured his optimism. He wonders if the appeal is simply the next verse in the same song, if there’s any chance a higher court will rule against the city of Pensacola.

“It makes it really hard to believe the courts are going to say, ‘Yeah, y’all are all wrong,’” Kimberl said. “Maybe I’m just a conspiracy theorist.”

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McKenzie’s Lawsuit Roundup

In addition to the Occupy Pensacola lawsuit, attorney Alistair McKenzie is also involved in two other suits pertaining to the city of Pensacola. He is representing Pensacola City Councilwoman Sherri Myers in her ongoing legal battle with Mayor Ashton Hayward, as well as former city councilwoman Maren DeWeese in her lawsuit addressing the mayor’s use of his veto power during the last budget season.

Myers filed suit following Hayward’s May 2012 memorandum, which directed council members to channel their communications with city staff through the mayor’s office. In September, Judge J. Scott Duncan issued a ruling that had both sides declaring victory—essentially ruling that the mayor could institute such a policy, except in the case of “inquiries.”

McKenzie requested a clarification on the ruling, but the judge declined to offer one. The appeal is now headed to the First District Court of Appeals.

More recently, DeWeese filed suit against Hayward, as well as Pensacola Chief Financial Officer Dick Barker, following some spirited sparring over this year’s budget.

In September, the Pensacola City Council amended the mayor’s proposed budget. They raided funds Hayward intended for a controversial—and since dropped—marketing contract with the Zimmerman Agency, as well as funds from his personal budget.

Hayward subsequently vetoed the council’s amendments. The council did not override the mayoral veto.

At the time, DeWeese stated that she didn’t think Hayward’s veto reversed the council’s moves, but rather zeroed-out the funds from the budget. Hayward, however, maintains that his veto had the effect of returning the budget to its previously proposed form.

“The way he did it was not a veto and was illegal,” McKenzie said, adding that a victory for DeWeese would have ramifications. “It would have severe practical applications—it actually calls into question whether there’s actually a budget this year.”

DeWeese’s lawsuit is due for a Feb. 25 hearing. The city has filed a motion to dismiss, arguing that DeWeese lacks the standing to bring such a suit.

“The law in Florida does not allow the general public to interfere with functions of the government by filing civil lawsuits,” the motion states. “Simply put, neither Ms. DeWeese’s capacity as a taxpayer nor capacity as a councilwoman affords her standing to maintain her lawsuit.”