Page 2: Legal eagles routed by Rudder
Last Friday, Paul Rudder survived the Town’s Star Chamber.
Lunch did not.
Rudder was in the Town offices for an appeal hearing, as the Sierra Center Mall had been fined $100 by the Town for violation of its sign ordinance. The code cited was 17.40.100.
Specifically, the Town believes that the banner hanging from the roof of the Sierra Center Mall facing Old Mammoth Road is not a poster or a mural or some other form of art. Rather, it is a nefarious advertising banner and a clear flouting of Russian authority.
Code Compliance Officer Peter Roman had fined Rudder $100 and demanded removal of the poster/mural/banner.
Rudder, of course, appealed. He likes a good fight. Particularly a fight with an army of bureaucrats. Rudder v. three bureaucrats and two lawyers = a fair fight.
Mammoth Sporting Goods owner Phil Hertzog told me about the hearing, so I decided to attend.
Town Attorney Andrew Morris of the firm Best, Best and Krieger, appearing via teleconference, said that nothing in the Town Code required the hearing be open to the public. Morris was appearing as attorney for the Hearing Officer, Sarah Vigilante.
He said it was entirely Vigilante’s decision. Vigilante is the Town’s Personnel and Risk Analyst.
Ms. Vigilante said that while she was interested in transparency, that, well … she didn’t want me there.
Too much transparency, after all, can be a little daunting.
Rudder asked, “Is this a Star Chamber proceeding? … I’m concerned about a process where the judge, jury, prosecutor are all employed by the town.”
Which of course had me reaching for my smart phone to figure out what the hell a Star Chamber proceeding was.
From Legal Dictionary: n. any judicial or quasi-judicial action, trial, or hearing which so grossly violates standards of “due process” that a party appearing in the proceedings (hearing or trial) is denied a fair hearing. The term comes from a large room with a ceiling decorated with stars in which secret hearings of the privy council and judges met to determine punishment for disobedience of the proclamations of King Henry VIII of Great Britain (1509-1547). The high-handed, unfair, predetermined judgments, which sent the accused to The Tower of London or to the chopping block, made “star chamber” synonymous with unfairness and illegality.
So the hearing proceeded without me.
The Town’s putative head of planning, Sandra Moberly, flanked by Peter Roman, were both represented by a SECOND Best, Best and Krieger attorney, Joshua Nelson.
According to Rudder, “They [the Town] complained that a poster/mural with no logo/company affiliation was an advertisement for [Hertzog’s] retail business.”
“Peter Roman said, ‘whenever we try to enforce the sign ordinance, people point to that banner.”
But Rudder argued that it wasn’t a sign or a banner and couldn’t be governed by the Town’s sign ordinance. Rather, it was a “work of art.”
According to Section 17 of the code, a work of art is “an artistic creation such as a planting, sculpture, architecture, landscape design, mural, and other objects. Works of art not used to advertise or identify any business or product are not considered a sign.”
Meanwhile, Town code defines a banner as, “Any flexible device used to advertise, draw attention, or relay a message, typically displayed outdoors. A banner is only allowed for use as a temporary sign.”
So the Hearing Officer ruled that “under the definitions of municipal code … the object does not completely meet the definition of a banner and it does however meet the definition of a work of art.”
As Rudder argued, “Assume instead of a picture of a skier, we had a painting of a Campbell Soup can by Andy Warhol. Also assume for the sake of discussion that there was a grocery store in the building. Could the presence of a grocery store in the building turn what is generally accepted to be one of the greatest works of American art of the 20th century into a violation of Town Code for an illegal banner? … That’s why I made the argument that the Code, in that respect, is impermissibly vague.”
Meanwhile, Nelson argued that since Rudder had not sought design/review for his “work of art” before putting it up, he was in violation of something and should lose anyway.
Which entirely neglects the concept of due process. “How is the accused supposed to know what he is accused of if the Town has no obligation to let him know until the middle of the hearing?” asked Rudder rhetorically.
The Hearing Officer agreed, batted down Nelson’s Hail Mary legal pass, dropped the fine, and ordered Rudder to subsequently go to Design/Review concerning approval of his “work of art.”
Though we no longer have a Public Arts Commission, we do have Elizabeth Tenney. Welcome to Star Chamber #2, Mr. Rudder.
Here’s the hilarious part. The Town, in a fit of pique, notified Rudder that it would seek “attorney fees” out of the deal prior to the hearing. And why wouldn’t you, if the hearing officer worked for your side? Unfortunately for the Town, its code section 1.12.060 mandates that once the Town decides to go for attorney fees, if it loses, the other side is entitled to attorney fees.
If the Town hadn’t decided to seek attorney fees, it wouldn’t have been responsible to pay such fees if it lost – which is like a doubleheader loss for the taxpayer, having to pay off attorneys on both sides
So, Paul, what are you asking for?
“I will seek $29 million, or $2 million a year for the next 23 years,” joked Rudder, referencing the airport litigation settlement.
The Sheet made a public records request, currently pending, seeking what Best, Best and Krieger charged the Town for “defending” the appeal.
New Bear Awareness Tactics for a Drought Year
March 12, 2014 — Mammoth Lakes Wildlife Specialist Steve Searles, better known as The Bear Whisperer, isn’t afraid to make a fool of himself in the name of coexistence with bears, especially this year when a winter drought will make food sources for bears, scarce.
Join the technology-challenged Searles as he navigates his new smartphone and social media of the 21st century. On March 1, Searles launched the “Don’t Feed Our Bears” video series — a daily, 30-60 second raw video of a local bear or bears taken by him in the field, and then posted to his social media channels. The footage is grassroots, innovative and often comical. It’s not a glossy-finished Hollywood product but a real view of wildlife in Mammoth Lakes that may include bloopers, drama and a warm-fuzzy feeling.
“This year more than ever we need to keep the bears in the limelight,” Searles said. “I am making and posting these videos with the hope that they will be viewed and SHARED across the web to lead by example and show the world that it is possible to co-exist with bears and other wildlife.”
Now more than the ever, please remember to keep garbage contained. Let’s keep our wildlife healthy this year. Don’t Feed Our Bears. Contact: Steve Searles at 760.937.BEAR or steve@thebearwhisperer.com. Follow: youtube.com/BearWhispererSearles or Facebook.com/SearlesBearWhisperer.
