Verified Complaint

The plaintiff in this action, Patrick Duff is a resident of the city of Philadelphia
in the State of Pennsylvania who was seeking to make open public comment
on matters of concern. Plaintiff recently became aware that the city of
Philadelphia does not allow open public comment and only allows the public
to comment on items that are on the agenda. On 10-16-2014 plaintiff
attempted to sign up by only adding his name to the sign in sheet and was
told that he must pick an agenda item and if not he will not be able to speak.
Originally the plaintiff wanted speak on an issue he had concern with but the
fact that they did not allow open public comment shocked plaintiff, who by
that time had found the rules of the Sunshine act.
Plaintiff was called to speak and proceeded to make an objection to the
council not allowing public comment, which he understood to be well within
his rights. The council president then interrupted by asking the Plaintiff:
Clarke: "Do you want to testify on a bill or resolution? What do you want to
talk about
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Plaintiff's Original Complaint
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Duff: "I wanted to come address a different issue. But I'm shocked and
appalled that the Council doesn't allow public comment."
Clarke: "Sir, this is the public comment."
Duff: "Ah, but it doesn't allow open public comment on non-agenda items."
Clarke: "It's pretty open."
Duff: "The rule is that I can only comment on the agenda items."
That day the Plaintiff went to several council peoples office seeking a council
person to help restore public comment to the public meetings but was told
that the city was not required to do so. Plaintiff went to council President
Clarke's office and spoke with his several of his aides who all said that
nothing could be done.
On 10-23-2014 plaintiff again returned to city council in order to speak with
the counsel people in order to restore open public comment back to the city
of Philadelphia. This time he met with several of the council people's aides
in an attempt to address the issue. Plaintiff read the sections of the
Sunshine Act to the aides but this fell on deaf ears.
Plaintiff then signed in for the agenda comment section and wrote "objection"
in the area that asks for the agenda number. The sergeant at arms then told
plaintiff he could not comment unless it was on an agenda item, to this
plaintiff protested and was met by a person who he was told was the legal
advisor for the council. The legal advisor refused to even look at the
language in the Sunshine act and rather suggested that plaintiff write down
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Plaintiff's Original Complaint
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an agenda number and segway into the topic plaintiff wanted to talk about.
To which the plaintiff took his advice in order to be heard but does not wish to
have to lie in order to gain the rights he should already have, especially in
Philadelphia.
Plaintiff in this civil rights lawsuit allege that the cities restrictions on public
participation at its meetings violates the First Amendment and the
Pennsylvania Sunshine Act. Plaintiff seeks an injunction prohibiting the city
from continuing to bar public comment on non-agenda items, which is
required by the Sunshine act. Plaintiff also seek damages for violation of
their rights and the injuries caused by defendants' actions.
JURISDICTION AND VENUE
1. This Court has jurisdiction over this action pursuant to 28 U.S.C.
1331, 1343(a)(3) and (4), and 1367. Declaratory relief is authorized
by 28 U.S.C. 2201 and Federal Rule of Civil Procedure 57.
Injunctive relief is authorized by Federal Rule of Civil Procedure 65.
2. This Court has personal jurisdiction over the defendants who are
located in the Eastern District of Pennsylvania.
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Plaintiff's Original Complaint
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3. Venue is proper in this District and Division pursuant to 28 U.S.C.
1391 (b) in that at least one defendant resides here, a substantial part
of the events or omissions giving rise to this suit occurred here, and/or
any one of the defendants may be found here.
PARTIES
4. Plaintiff Patrick Duff is a 38 year old citizen of the United states and a
resident in the City of Philadelphia in the commonwealth of
Pennsylvania.
5. Defendant is the City of Philadelphia is a municipal government entity
organized under the laws of the state of Pennsylvania, located at 1401
John F Kennedy Blvd, Philadelphia, PA 19107 The-Be1ougl1 a
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..Sla'h'fl as a legal responsibility to operate according to the laws of
the United States and the Commonwealth of Pennsylvania, including,
but not limited to, the United States Constitution, the Pennsylvania
Constitution, and the Pennsylvania Sunshine Act.
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Plaintiffs Original Complaint
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THE CURRENT POLICY
6. The cities current policy on public comment is that people may only
comment on items that are on the agenda that day. In the "About what"
section it reads "Speakers may comment on any of the bills or resolutions
that are on Council's Calendar (also known as the Agenda) for possible
action at that day's Council session, even if those items are not actually
called up for a vote. This consists of any items on the "Final Passage" and
"Second Reading and Final Passage" sections of the Calendar.".
7. It states nothing further and offers no open public comment in any of their
meetings as they are required to do. Each violation is a $1000 fine for the
first offense and $2000 for each additional offense.
INJURIES
8. Plaintiff, along with every citizen of the city of Philadelphia, have been
deprived of their First Amendment right and the protections under the
Sunshine Act. Plaintiff will continue to suffer the loss of these rights as
long as defendants continue their current practice of not allowing open
public comment.
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Plaintiff's Original Complaint
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CLAIMS
FIRST CAUSE OF ACTION
(FIRST AMENDMENT RIGHT TO COMMENT)
9. Plaintiff incorporate by reference the allegations of the preceding
paragraphs as though set forth at length herein.
10. The Pennsylvania Sunshine Act, by giving The City of Philadelphia
residents and taxpayers a right to comment at public meetings, creates a
limited public forum for those wishing to comment on matters of concern,
action, or deliberation which are or may be before the Council.
11. The failure by the city to allow public comment at its agenda meetings
violates the First Amendment because it is not a reasonable time, place,
or manner restriction as it does not leave open any alternative channels of
communication.
SECOND CAUSE OF ACTION
(RIGHT TO PUBLIC COMMENT UNDER PENNSYLVANIA SUNSHINE ACT)
12. Plaintiffs incorporate by reference the allegations of the preceding
paragraphs as though set forth at length herein.
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13. . The failure of the city to allow public comment at its agenda meetings
violates the Pennsylvania Sunshine Act's (65 Pa. Cons. Stat. 710.1 (a))
requirement that municipal councils provide a reasonable opportunity at
each advertised regular and special meeting for residents or taxpayers of
the municipality to comment on matters of concern, action, or deliberation
which are or may be before the council prior to taking official action.
PRAYER FOR RELIEF
WHEREFORE, in light of the foregoing, plaintiff respectfully request the following:
(a) A declaratory judgment pursuant to 28 U.S.C. 2201 and 2202 and 42
U.S.C. 1983 declaring that defendants have violated plaintiffs' rights
under the First Amendment to the U.S. Constitution and the Pennsylvania
Sunshine Act;
(b) An injunction pursuant to Federal Rule of Civil Procedure 65 prohibiting
defendants from enforcing their policy barring public comment at City of
Philadelphia Council meetings.
(c) An award for compensatory damages and an award for punitive damages
against Defendants in an amount to be determined at trial, for all injuries
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Plaintiff's Original Complaint
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and damages plaintiffs have sustained in the past and that they may
sustain in the future;
(d) Plaintiffs' costs incurred in this litigation including attorney's fees pursuant
to 42 U.S.C. 1988 and the Pennsylvania Sunshine Act; and
(e) Such other and further relief, special and general, legal and equitable, as
the Court deems just and proper.
JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a
jury on all issues so triable.
Patrick A Duff
10/24/2014
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