The Federal Flag Hearing
On Tuesday Morning, November 5, 2024, the Concord Federal Court held a merits hearing on the Scaer v City of Nashua First Amendment Flag case. The coincidence of our National Voting Day and this case could not be more fitting. I had the pleasure of attending.
The City filed yet another Motion to Dismiss based on MOOTNESS as, after the Lawsuit was filed, the City created a new policy to address the Constitutional claims. What does it mean when a legal matter becomes MOOT? It implies that while significant at the time of the filing, it no longer has any significance because there no longer remains an issue to dispute. However, the NH and Federal Courts have recognized an exception “capable of repetition, yet evading review.” This applies to matters of public interest like flags and public records.
MOOTNESS is the City’s overused escape parachute when the plane is repeatedly hit. Nashua citizens are put on MUTE when attempting to drive changes that create government transparency and protect our First Amendment rights. Once lawsuits are filed, the City hurries to produce records up to the day before the hearing or, in this case, write a new policy to deal with constitutional violations. They quickly write a Motion to Dismiss under a MOOTNESS claim. Court’s like MOOTNESS Motions because it clears their dockets quickly – “all set, no problems here!”
In this 90-minute Federal hearing, the Judge heard the Motion to Dismiss on MOOTNESS, would not rule on it immediately, and then proceeded with a merits hearing. I cannot predict the outcome, but Attorney Bolton’s press remarks describing this Lawsuit as “silly” and a waste of taxpayer money illustrated ignorance of important First Amendment rights for all citizens. It captured the City’s typical dismissive and petty remarks.
I will offer my take on flying the Pine Tree Flag, a viewpoint discrimination matter addressed in the Lawsuit. The City denied the application to fly this Flag as it is not in harmony with the City’s message. Exactly how are citizens supposed to figure out the City’s harmonious message? It is a fluffy and nondescript term that bases decisions on politics and the Mayor’s personal preference.
The Pine Tree Flag was apparently waving at the January 6, 2021, attack on the Capital. Therefore, the City has determined that this Flag now represents an anti-government flag that condones violence. The most prominently flown Flag on January 6, 2021, was the American Flag. Does the City now associate that with violence? Should a single incident define and destroy the precedent and history of a flag? How did that American Flag escape the label that the Pine Tree Flag could not?
Interestingly, when you do a CHATGPT search on the Pine Tree Flag’s historical significance, it does not mention the January 6, 2021, incident. In fact, the CHAT search provides an Overview, Origins and Symbolism, Use During the American Revolution, and Legacy sub-headings. In 1776, it became the Flag of the Massachusetts State Navy. The Legacy section states:
The Pine Tree Flag remains a powerful symbol of American heritage, representing the colonies’ struggle for independence and their reliance on divine providence in their quest for liberty. Its historical significance is commemorated in various forms, including its use on modern time by groups emphasizing individual rights and limited government.
Additionally, when you conduct a Google search on the Pine Tree Flag, the first six sites I reviewed do not mention the January 6, 2021, incident or any reference to a violent overture associated with the Flag. The Mayor is imposing a discriminatory viewpoint based on a label he has given the Flag and his personal disdain for the person(s), their political views, and the request to unfurl this Flag.
I was unaware of the Pine Tree Flags’ appearance at the January 6, 2021, attack. There is no way I would have known that this was not in harmony with the City’s values. The Mayor’s extreme views on flags and fictionalizing of the message, appears to be geared toward preventing representations of all viewpoints in the City, a “Welcoming City,” no less. The City has proven to be a master of “bait and switch” tactics, so what loopholes and hidden agendas exist in the new policy, including flying flags and ceremonies on the common? We simply cannot trust our leader to protect and honor everyone’s constitutional rights.
Nashua’s History of “MOOT” Abuse
Nashua has abused MOOTNESS Motions and has used them repeatedly in Superior Court cases over public records access. See Court Order 1, Court Order 2, and Court Order 3. Unfortunately, Nashua’s unprincipled Judges permit the City to win repeatedly on MOOTNESS claims even though these public interest violations repeat endlessly.
What causes these continued violations? This City has no uniform written policies to end discrimination against citizens seeking records who are not in the favored party or carrying the favored viewpoint. The City’s lockdown of City Hall, preventing citizens from speaking with the departmental employees with the most knowledge on the records, has killed reasonable access to records. Our constitutional rights for an open, accessible, accountable, and responsive government have been destroyed in Nashua. All this happened because two Nashua Judges aligned themselves with the City and appear to carry biased, predetermined decisions on citizen cases. Political parties’ matter in the City and Court.
In Nashua – Emails Are The Problem.
Petition 3, referenced above, is an excellent example of using MUTE, MOOT, and the BOOT, a well-honed technique for stifling us peons. They MUTE us into voiceless participants, but our echoes remain. In 2023, I won a Supreme Court appeal for emails stored on backup tapes. The City was offloading emails to backup storage outside the proper retention period called out under a law establishing requirements for Municipal Record retention. As a side history lesson, in 2017, the City was taken to Court on a matter involving the deletion of emails as they were deleting emails as public records in a month. Judge Temple ruled against the Plaintiff in email deletion – frankly, it was a stunningly wrong ruling. This Judge, among citizens, has a reputation as a “City” judge, not a “citizen” judge. In 2017, City attorneys should have corrected the email deletion issue by writing a clear policy. They did not.
In 2021, I arrived in the Court system, very frustrated by the actions of my City to provide records. I had a difficult time getting the Judge to sit up and listen. I fought hard and made my presence known by filing over and over again. It was the most challenging work I had ever done because I had no experience or skills for this journey. The Judge wasn’t a rule or procedure guy; he largely depended on the word of the City attorneys. Perseverance paid off, and the Court reversed its 2017 position and ordered the City to provide the emails. This became the appeal I won in 2023.
What Was Nashua’s Practice For Providing Emails?
Until 2021, the City legal office would provide emails without attachments unless specifically requested. This is common for various Federal agencies. Attachments can be very voluminous and delay the delivery of the base emails you seek. In November 2023, when the City started producing the emails, they included all attachments. The emails I wanted were 1,352 single-page short communications. By the time the production was finished, the attachments were over 7,000 additional pages. I tried to work with the City attorney to determine how many attachments required review. She refused to provide an answer. After the first batch of records, which included over 3,000 pages of a public report on the City’s website, I requested that the City not provide the attachments. In all the various email requests I have made, I rarely request attachments after the fact. The attorney claimed that the City must review, redact, and compile the attachments before the delivery could be made. This was causing a delay.
In 2022, I had asked that the City not include the attachments in a prior request for Arts Center emails. Still, the City attorney refused to acknowledge my request. The City’s production of these records indicated a four-year delivery time. I attempted to go to Court in an expedited Right-to-Know hearing to address the production rate. Still, Judge Temple again refused to expedite the case and hear it.
The entire time this happens, City Attorneys, the Mayor, and officials are using the bully pulpit of public meetings to bash me for wasting taxpayer money and being frivolous. The Court never rejected any of my RTK Petitions as frivolous, but that did not stop the City and the Court from creating a unified message to create hate and hostility. Again, all the City had to do was create policy, but they refused. It was much easier to create hate.
It’s a suffocating feeling to be hopeless. The City had all the power. Leaders have a public microphone to create whatever messaging they want. The Mayor and board members also have email lists for thousands of citizens to push personal attacks under their aldermen and mayoral titles. The Court, the ultimate adjudicator, has the final power and had the tools to fix this but was unable or unwilling to expedite and hear these cases. In these situations, the citizen has no control. I cannot make the City unlock doors. I cannot make the City create reasonable paths for citizens to access information. I cannot make the City write policies. I cannot ask the city attorneys to stop the personal public attack designed to embarrass and humiliate. City and Court leaders take the least powerful person standing up for themselves, making them the most persecuted. It has become clear, that top City leaders are hostile to women who wish to know what their government is up to.
I filed a protective order and a contempt order. I requested an expedited hearing because, based on the first few batches of emails the City produced, it would take about 18 months to receive the records. I am always sickened when I know the City will use this time to maximize hate and hostility towards me. Once Moran, identifying under his “Dad” title and social worker license, called me out as a child predator in the Chamber in 2022, I was not only MUTED, but publicly slandered. The label was abhorrent, revolting and vile and I could not go back to public meetings to hear them level these words again.
Once again, the Judge denied the expedited hearing. It took 5 months to get into Court. The City “finished” production a month before the hearing, accelerating delivery once the protective and contempt orders were filed. The Court held a 3-hour evidentiary hearing on June 24, 2024. In its usual rule-breaking and power fashion, the City Attorney started the hearing by asking the Court to dismiss the matter under MOOTNESS because the records had been provided. The City could have filed the Motion before the hearing but chose not to. The pattern and practice of the City’s game was evident.
The Judge stated that no motion had been filed, so the hearing would continue. The Judge using his biased discretion, charged the time the City took to cross my witnesses to my used time, which destroyed a fair hearing. The Judge provided no prior explanation on how he would conduct a time split hearing. The Judge appears to be in the pocket of the City. The Judge then ordered the parties to write post-hearing memorandums.
The City then filed a motion to Dismiss on MOOTNESS and a post-hearing memorandum. In a much-expected decision, the Judge produced a 3-page order dismissing my case as a MOOT in one week. Tens of Thousands of dollars were wasted on digital evidence input, petitions, a hearing, witnesses removed from their workday, sheriff expenses for subpoena service, post-trial documents, etc., for the Judge to, once again, waste taxpayer money and court time and decided there was nothing to rule on. This permitted the City to once again boast a win and highlight Ortolano’s frivolous claims and waste of taxpayer money. In this Petition, the Judge would have to rule against City Attorneys. How could a Judge in their pockets do so? The Judge has never ruled specifically against City Attorneys. Since this ruling, no policies have been written, and the game of delay continues.
Here We Go Again – Will The Fourth Time Be The Charm?
The City and Court, in a well-practiced cadence, aimed at denying our Constitutional rights to information. This suggests that the Nashua Court and the Municipal government are colluding. In the last six years, Nashua has had three seated Judges removed from the bench, two for criminal charges and one for ethical charges. Bullies should never have the final say. The City and Court team to oppress the powerless and reap the storm. The City has just been served with another RTK lawsuit for delaying and improperly responding to a simple request for push-button financial reports. They will file a Motion to Dismiss based on MOOTNESS – let the games begin.
