Occupy legal fight ponders next move
Protesters' plans for lawsuits, moving city funds run into roadblocks
In the weeks since police shut down the Occupy Portland camp, protesters have marched around two downtown parks and staged vigils across the street to mourn loss of the campsite.
What they have not yet done is go to court to force the city to allow them to return or set up another camp in a different park. The lack of prompt legal action is in contrast to several other cities where lawyers representing Occupy protesters have formally challenged city government efforts to shut down camps. For example, on Nov. 15, protesters in Boston obtained a temporary restraining order allowing them to stay in Dewey Square. That same day, New York City police evicted the original Occupy Wall Street camp from Zuccotti Park in Manhattan.
The lack of local legal action does not mean Occupy Portland protesters have given up on camping. All of the protesters at a Nov. 19 general assembly meeting approved seeking a restraining order agains the city allowing them to establish another camp in a public park.
Instead, the delay reflects complicated legal issues raised by the request. Legal stumbling blocks have also arisen in the protesters' demand that the city of Portland treasury transfer its idle money from large banks to small banks and credit unions.
Lawyers working with protesters on a possible restraining order request are still studying the best arguments to use. The city has anti-camping policies that it is already defending in a federal lawsuit brought by the Oregon Law Center on behalf of four homeless people. Although Mayor Sam Adams originally allowed Occupy Portland protesters to camp in Chapman and Lownsdale squares a block from City Hall, it is not clear whether that decision set a precedent protesters' lawyers could successfully exploit in court.
In the case of the Portland's banking situation, a majority of the City Council appears interested in depositing more money in credit unions, one of the protesters' goals. But a Nov. 22 memo from the Office of Management and Finance says state law restricts credit union deposits to just $250,000, the maximum of their insurance coverage. That's a small fraction of the $724 million in city funds available for investment and deposit.
According to the memo, although the law is scheduled to change to allow larger credit union deposits, the higher limits will not take effect until 2013, more than a year from now.
As the Occupy movements stretch into their third month in Portland and across the country, such issues are raising challenges for protesters wondering how to transform the public outrage they have tapped into results.
None of the lawyers looking at the camping issue would discuss legal research or potential strategy. Most are members of the National Lawyers Guild, an advocacy group founded in 1937 as an alternative the American Bar Association, which at that time excluded Jews and blacks. The guild clearly identifies itself as championing progressive causes, including civil rights and liberties. It opposes the Patriot Act and corporate globalization, including such institutions as the World Trade Organization.
Guild lawyers have supported Occupy protesters in Portland and across the country from the earliest days of the movements, serving as legal observers during confrontations with police and representing some of the protesters who have been arrested. The form of 'mass defense' for protesters originated during the Vietnam War years.
According to Nathan Tempey, communications director for National Lawyers Guild, the organization considers all of the Occupy camps to be a form of political expression protected by the First Amendment. Regardless of that, Tempey says guild lawyers will only go to court on behalf of the camps when authorized by the protesters. In some cities, protesters have so far chosen to negotiate with public officials on the future of their camps instead of using legal action.
In cases where guild lawyers have gone to court, the results have been mixed. According to a guild press release, the Boston case may be its clearest victory so far. In other cases, courts have decided that cities have the authority to regulate the time, place and manner of free speech. For example, although guild attorneys obtained a temporary restraining order protecting the Occupy Wall Street camp in New York, it was nullified by another judge. Protesters were also evicted from camps in San Diego and Austin, despite guild lawyers' efforts.
Lawyers in Portland have not yet decided how or when to proceed or which legal arguments to use. Still to be decided is whether to file lawsuits in state or federal court, or both at the same time.
Depositing city funds
When it comes to investing and banking public funds, all governments have a fiduciary responsibility to minimize risk and maximize returns. As of Oct. 31, the city of Portland had about $724 million on hand in money collected from a variety of sources but not yet spent. Most of the money is invested in U.S.-backed securities, placed there by investment officers with the Treasury Division of the Bureau of Financial Services. Most of the remaining funds are already placed with a community bank.
After protesters asked the city to deposit money in credit unions, Adams and Commissioners Amanda Fritz and Randy Leonard contacted the Office of Management and Finance about the issue. On Nov. 22, Portland Chief Financial Officer Rich Goward told Adams in a memo that as of Oct. 31, only $52.8 million was deposited in banks. The majority was placed with Umpqua Community Bank, the largest community bank in the state.
Most of the remainder - about $21.6 million - was placed with Wells Fargo, one of the nation's large banks criticized by protesters. Wells Fargo was selected through a bidding process in March 2009 to handle the city's checking account. Unsuccessful bidders included Bank of America, U.S. Bank and Key Bank.
According to Goward, the city is not investing any money with credit unions. That is largely because state law only allows local governments to invest a maximum of $250,000 in credit unions. City finance officials say that until now, that amount is too small to justify the due diligence necessary to make the investment.
The law will change in 2013, however, to allow credit unions to offer collateral to secure larger investments. Even then, the Oregon State Treasurer will have to certify those credit unions seeking more funds from local governments.
Adams' office says no decision has yet been made on when or how to bring the issue to the council.