City Attorney Thomas P. Mullins said previously that Bauer was hired because he has more experience in trial cases.
“This case is not about prohibiting the exercise of the rights of free expression,” Bauer said in the statement. “The city asked for a reasonable remedy — to allow public employees to do their jobs without substantial interference and to allow individuals to protest from a safe and reasonable distance away from the employees. The court’s order fails to recognize, or to balance, the legitimate competing rights of the parties.”
In his decision, Kissinger sided with the Robin Hooders, and their attorney, Jon Meyer of Manchester, who represented them during the trial pro bono, saying “The Court agrees with the Respondents that their free speech rights under the First Amendment of the Federal Constitution will be violated by permitting the City to move forward on any of the claims in this action or the more recent action or by granting the requested preliminary and permanent injunctive relief. Thus, the Respondents’ motion to dismiss is granted.”
Bauer disagreed with Kissinger’s explanation.
“With due respect to the Superior Court order, the city believes that the court order is wrong,” he said in the statement. “It failed to recognize and balance public employees’ rights against third parties’ rights to protest.”
Bauer said he and city officials find Kissinger’s ruling raises concerns because it “may subject all state, municipal, county, and public employees in New Hampshire to similar workplace interference, harassment, and intimidation, and the city believes that it has the right, and the obligation, to take the steps necessary to protect its employees from such actions.”
Kissinger’s decision focused on the venue of the Robin Hooders’ actions, saying that because it occurs “on streets and sidewalks throughout downtown Keene ... used for public assembly and debate, the hallmarks of a traditional public forum,” that “such space occupies a special position in terms of First Amendment protection.”
Mullins said he had spoken with both Bauer and city officials about the case Tuesday before the decision to appeal was made.
“I think it’s appropriate to say the city believes strongly in having (attorneys) move forward with an appeal,” Mullins said in a telephone interview Tuesday evening. “There was broad support from city councilors for taking this action.”
City Manager John A. MacLean said previously that the money to pay for Bauer and his legal team came from the city attorney’s line item budget, and that costs to date are estimated to be between $20,000 and $25,000. It remains unclear how much that figure will increase during the appeal process.
Meyer said he had two reactions to the city’s decision to appeal.
“The first is that I’m surprised because I think the trial judge’s opinion is absolutely supported by the law and very well and thoroughly reasoned,” he said in an interview this morning. “The other reaction I had was more positive: Certainly, the N.H. Supreme Court has a long history of addressing and protecting free expression rights, but there have been no recent cases that have presented that opportunity ... to reaffirm the fact that whether you agree or disagree with a political activity, the role of the government is not to suppress it.”
Mullins said the decision to appeal does not necessarily mean the Supreme Court will agree to hear the case, but Meyer said he expects it will.
