Here’s why the city (almost) won the Hensel case

Tom West, West Words

Tom West, West Words

As I read through the decision handed down by U.S. District Judge Richard Kyle regarding the lawsuit brought by Robin Hensel against the city of Little Falls, two thoughts came to mind: First, it’s hard to see how Hensel’s First Amendment rights were infringed upon because the city refused to replace a bench that had been removed because of vandalism from in front of city hall. Second, that the city had the better lawyers.

For those coming late to the story, Hensel posted numerous signs with political messages in her yard, citizens complained and the city tried to enforce the sign ordinance in force at that time.

Hensel claimed she was being discriminated against because of her message, and noted that the city had not held other signs to the same standards. Thus began a saga that continues to this day.

Hensel also wanted to rent space on a bench that had once been installed in front of City Hall. The city has several such benches around town, and contracted with JMR2 Advertising to sell advertising on the benches. However, under the old ordinance, city officials claimed the right to “approve” all advertising on the benches. That’s blatantly unconstitutional, and the city’s attorneys didn’t deny it. What they did do, as with the sign ordinance, however, was to draft and enact new ordinances that pass constitutional muster.

Judge Kyle threw out the motions by Hensel that she was discriminated against by the sign ordinances, both old and new, and that she is being discriminated by the new bench ordinance.

So the only issue remaining, Kyle wrote, is how much should the taxpayers of Little Falls pay to Hensel in damages because of the wording of the old bench ordinance.

The facts, as I understand them, are that the city had removed the bench in front of city hall because of vandalism, then chose not to replace it.

The question then becomes, did the city choose not to replace the bench because it was afraid of what a Hensel ad might say? For example, what if she posted a message that the Council objected to like “City Council is corrupt” or “We don’t support our troops”?

Was it Hensel or vandalism that caused the bench not to be replaced?

A secondary question would be, was Hensel given an opportunity to advertise on another bench at a different location? If she was denied, then she would definitely have a case.

But that wasn’t in the briefs filed with the judge, and not a fact that turned on his decision.

Should the bench issue go to trial, it could be a close call. City Attorney Toni Wetzel told the Council at a work session at which Hensel’s request was discussed that the ordinance needed to be changed to remove the part about requiring city approval of the message on the bench. She told the Council to base their decision only on whether to replace the bench. However, at a subsequent Council meeting, some members of the Council said that a bench so close to City Hall could cause people to believe that the city endorsed the message. They then voted not to replace the bench.

That isn’t quite saying that they voted not to replace the bench because it was Hensel’s message, but given the circumstances, those comments made it less than a slam dunk. That’s why Kyle said the issue should be decided in a trial.

With regard to the sign ordinance, Kyle noted that freedom of speech, like all of our rights, is not absolute. Citing another case, Kyle wrote, “the First Amendment does not guarantee ‘the right to communicate one’s view at all times and places or in any manner that may be desired.’”

And unlike oral speech, signs take up space, he said, that may raise other concerns like whether or not they obstruct views.

Throughout the decision, Kyle commented on the quality of the arguments made by Hensel through her attorney, Larry Frost. Kyle noted that in their brief seeking summary judgement, they made “no argument whatsoever” about the old sign ordinance, nor in responding to the city’s motion did they actually address the city’s arguments.

They also failed to identify Joan Claybrook, the former head of the National Highway Traffic Safety Administration, as an expert witness during discovery, causing Kyle to ignore Claybrook’s affidavit.

It was enough to make one wonder if the outcome would have been different with a different attorney.

So far the case has cost taxpayers more than $50,000. Regardless of how the trial turns out, should it be held, that’s an expensive lesson on our constitutional rights that Little Falls residents will not soon forget.

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The Record installed a new phone system last week, one of those modern conveniences that gives each employee their own phone number. Part of the deal, however, is that when you dial our main office number (320) 632-2345, everyone needs to dial the area code, 320, as well as the number, even if you are calling from across the street. If you can’t get through, that may be why.

Tom West is the editor and general manager of the Record. Reach him at (320) 616-1932 or email tom.west@mcrecord.com

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