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What Can Happen When a City and Citizen Clash? - 10/01/12

Some readers may be familiar with the case of Fane Lozman, of Riviera Beach. Lozman's case provides one possible answer to the question posed in the title when a city goes "overboard" with a resident it doesn't like. It could end up in the U.S. Supreme Court.

The Court will hear oral arguments today in Lozman v. City of Riviera Beach, Florida (Docket No. 11-626).

What is interesting about this case is that it started out as a pissing contest between Lozman, an outspoken activist, and the City of Riviera Beach over redevelopment plans for the marina where Lozman parked his "houseboat." I put "houseboat" in quotation marks because the dispute now before the Court is whether Lozman's house was just a floating structure or a boat. If it is the latter, then it is subject to maritime law; this would be crucial to the ultimate outcome of the case.

Lozman opposed the city's plans to redevelop the marina. Lozman filed suit against the city contending that the city had violated the state's open-government law. He won his case. In a series of events that followed, which may have been in retaliation, the houseboat, or whatever it is, was seized and eventually destroyed. The seizure and destruction was pursuant to an order of the admiralty court decided under maritime law. Now the Court must decide whether the structure was a vessel, or equivalent to a "floating garage door," to use the language of a Supreme Court opinion in an earlier case.

To quote an article on SCOTUSblog:

The dispute in this case, in its basic facts, hardly seems like the stuff of a significant Supreme Court case. It involves a rather ordinary running feud between a quite cantankerous local citizen and a city government, with each side highly suspicious of the other’s motives, and seemingly determined to fight out each phase of their spat until the bitter end; something, perhaps, that “Judge Judy” could easily handle.

There would have been no case, though, if Fane Lozman and the city of Riviera Beach had worked out their differences on whether Lozman was paying what he supposedly owed for using city utilities in his floating home, and if Lozman had not suspected that the city was acting lawlessly in trying to sneak through a plan to redevelop the marina where his home was tied up at a dock. The feud has made for ongoing, lively coverage in local newspapers, with Lozman sometimes portrayed as the Biblical David to the city’s Goliath.

Of course, few disputes like this between city officials and "troublemakers" end up before the Supreme Court of the United States. But some of them could end up in court, if the resources to pursue it that far exist. Lozman, apparently, has the resources.

Aside from the litigation issue and the technical issues to be decided by the Court in the Lozman matter, there is a lesson or two to be learned from the case.

City commissioners and managers are human beings. I offer no proof of this, but state it as a rebuttable presumption. As human beings (I'm going with the presumption), they may be sensitive to criticism by members of the public or lose patience with people who repeatedly oppose their decisions and plans.

In the previous article, I suggested that a mark of "right government" is that it respects the rights of citizens. This includes the right to speak their mind, even if it clashes with their own opinions.

Unfortunately, Deerfield Beach has a history of clashes with citizen-activists, extending, in a few instances, to violations of their civil rights.

If I had any one criticism of the current city commission, it is that they don't seem to want to hear, any more than they have to, what residents think about city issues. Though the state courts don't seem to agree with me on this point, I think that open government is a two-way street. Citizens not only have to right to hear, but to be heard.

I had a recent experience, which suggests something to me. I wanted a simple piece of information from the city (frankly, I don't remember what it was), so I emailed the city manager. I got an oral response to my question from the manager's office, but was informed that if I wanted it in writing, that is, a response by email, I would have to submit a public records request. Actually, the oral information was fine with me, but I wondered, why should I have to make a formal request for one little piece of information. If I had requested copies of a public record or copies of all ordinances passed between 1925 and 1950, it would have been a different matter. The manager's office did not inform me if I had to pay for the email, also.

I think it should be made easier, not harder, and less expensive, for citizens to get public information, whether it's a document or something in somebody's head. We seem to be moving in a different direction on this.

But, to get back to the main point, city officials have to exercise considerable restraint when they deal with people and opinions they don't like. A useful strategy is to be as open as possible on all matters of public concern and to avoid secrecy when not required. If the city government of Riviera Beach had been less secretive about their redevelopment plans for the marina and more open with the public on the matter, it's quite possible the Supreme Court's argument schedule might be quite different today.

It's more, though, than just being gracious to unpleasant people. It's also understanding the concept of fairness. Officials should understand it's not just compliance with the formulas and the letter of the law when it comes to conflict of interest, or "appearances." Bias can come from different directions. Officials should also know what "due process of law" means. It rarely hurts to exceed the minimum requirements.

Conclusion: City officials, both elected and appointed, have, I suppose, tough jobs. Probably every town has a "cantankerous local citizen" or two. When officials get rattled by criticism or opposition — even if wrong or unjust — and go "overboard" in dealing with it, it can lead to serious consequences, as the Lozman case illustrates. And even if it doesn't go to the Supreme Court, inappropriate actions and responses can violate the Constitution and undermine our basic democratic institutions.

For more background, see Lyle Denniston, "Argument preview: Defining a houseboat — a house or a boat?" SCOTUSblog, Sept. 28, 2012, (quoted above).