Cape Coral slapped with a second lawsuit that challenges residential removal, "ban"

Another lawsuit has hit the city of Cape Coral that centers around the removal and "ban" of residents from future meetings, with more legal action possibly coming from the local GOP.

Michael Thompson, the chairman of the Lee County Republican Executive Committee, filed his claim on Wednesday as a private citizen seeking to hold the city accountable for its recent actions arguing the city violates the First Amendment and freedom of speech.

"It's time to reel in government," Thompson said. "Washington, D.C., is not the only thing that's broke, Cape Coral politics has been broken for a long, long time, and it's just gotten worse over the past several decades."

He seeks preliminary injunction relief from the courts against the council's recently updated rules of procedures, compensatory damage to cover attorney's fees and costs, and any other relief the court deems proper.

Cape Coral Spokesperson Melissa Mickey responded via email and said the city has not been served the lawsuit yet but does not comment on pending litigation.

Resident removal and updated council rules

The recent months have seen residents come out in full force to the city council meetings over issues including the proposed improvements to Jaycee Park, the demolition of the Yacht Club, and the council's recently approved controversial stipends – leading to protests, condemnation, and legal action.

For their part, Thompson and the Lee County GOP repeatedly showed up to denounce the city council's self-appointed stipend.

The council approved monthly stipends for each member on Dec. 13 as a voting item listed on the consent agenda and approved without discussion in a 5-1 vote. It amounted to $3,333 monthly for council members and $5,000 for the mayor.

Thompson's recent action against the city over its rules of procedure mirrors a recent lawsuit filed by a Cape Coral resident who was removed from council chambers during meetings and arrested.

Scott Kempe, who opposes the Jaycee Park plan, was arrested back in December before the council was set to approve his return to the meeting as he argued against the city's interpretation of the rule of procedure.

The original rule read as follows:

Any person who engages in behavior that is prohibited herein and/or who is boisterous or disruptive in any manner to the conduct of a meeting shall be asked to leave by the presiding officer and may be escorted from the meeting room by the Police Department. Any person so removed from a council meeting shall be barred from further attendance at that Council meeting unless expressly permitted to return by a majority vote of the City Council.

He was previously removed for turning his back as a form of protest in October.

The council updated its rules in February to add more specific penalties for removed residents, language to distinguish between those arrested or simply escorted from council chambers, and increased penalties for repeat violators.

Suppose a person is removed from council chambers for disruptive behavior.

In that case, they will be barred from subsequent regular and special council meetings, including the committee of the whole meetings and community redevelopment meetings, for 30 days, with a second violation within 90 days of the first violation barring said resident for 90 days, and a third violation within one year of the first violation will result in an additional 90 days.

Additionally, an arrested individual will instantly be barred from meetings until a final disposition has concluded any criminal charges from the arrest.

Individuals would then need to petition the council with a reason for why they should be permitted to attend meetings, and the council will vote on whether to let them return.

After the State Attorney's office dropped the charges stemming from his arrest, Kempe filed a lawsuit against the city over its updated rules of procedures as he still has not been allowed to attend meetings.

Related lawsuit Free speech at heart of legal act by man banned from Cape Coral meeting, motion says

Recent Cape Coral Council news Cape Council delays pay issue: November voters locked out of decision

What's in the lawsuit?

Thompson is represented by central Florida attorney Anthony F. Sabatini, a former House of Representatives member and current chairman of the Lake County Republican Party.

A meeting of a board, council, or commission is considered a limited public forum, where governments can have rules about certain kinds of speech or expression such as time, place, and manner that are unrelated to viewpoints.

The complaint argues the potential "banning" of citizens violates the First Amendment, is not narrowly tailored, and does not leave open "ample alternative channels of communication."

To be granted a preliminary injunction, the party making the motion must show it has a substantial likelihood of success on the merit, will suffer irreparable injury without the granted relief, that the threatened injury to the party outweighs whatever damage the injunction may cause the opposing party, and that the injunction serves the public injury.

Thompson's complaint states that his suit will succeed as the city restriction on speech is not narrowly tailored to serve a significant government interest and is an unconstitutional prior restraint on speech.

Additionally, the complaint argues that the loss of First Amendment freedoms, even for a minimal period, is unquestionably an irreparable injury.

"There is a substantial threat of irreparable injury caused by Defendant precluding members of the public from timely voicing their opinions in person on matters that are before the City Council," the complaint states.

This amounts to "unconstitutional censorship and therefore outweighs any harms to the city, the complaint states.

Lastly, the complaint argues the preliminary injunction would serve a public interest as allowing the city's actions to continue would "have a chilling effect on speech and would be a disservice to the public."

Because of all these reasons, Thompson seeks a jury trial to resolve these issues.

Potential future action

Thompson hopes his latest action against the city will cause the council to reconsider and change their updated rules of procedure.

"We are hopeful that with the lawsuit that has come from the gentleman, and the lawsuit that has come from me, they are going to start realizing that maybe we overreached our steps here," Thompson said.

Otherwise, a potential lawsuit from Lee County GOP could be coming.

"I've already polled the executive board, they are for it," Thompson said.

A potential vote for this action will likely take place at the next meeting in May.

Luis Zambrano is a Watchdog/Cape Coral reporter for The News-Press and the Naples Daily News. You can reach Luis at Lzambrano@gannett.com. Follow him on Twitter @Lz2official.

This article originally appeared on Fort Myers News-Press: Another free speech lawsuit hits Cape Coral, with more to come