Kucinich v. Forbes

• Citation: 432 F. Supp. 1101
• Decision Date: 10 February 1977
• Docket Number: No. C76-1317.,C76-1317.
• Parties: Gary KUCINICH et al., Plaintiffs, v. George FORBES et al., Defendants.
• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

432 F. Supp. 1101

Gary KUCINICH et al., Plaintiffs, v. George FORBES et al., Defendants.

No. C76-1317.

United States District Court, N. D. Ohio, E. D.

February 10, 1977.

COPYRIGHT MATERIAL OMITTED

Jack M. Schulman, Terence E. Copeland, Bruce Tyler Wick, Cleveland, Ohio, for plaintiffs.

Adrian B. Fink, Jr., Fink & Greene, James R. Willis, Cleveland, Ohio, for defendants.

Spencer Neth, Cleveland, Ohio, for American Civil Liberties Union of Greater Cleveland, amicus curiae.

ORDER

MANOS, District Judge.

On December 16, 1976 the plaintiff Gary Kucinich¹ filed a motion for a temporary restraining order, together with a complaint for permanent injunctive relief, requesting that the defendant Cleveland City Council members be enjoined from implementing a two week suspension of the plaintiff from his position on the Cleveland City Council and for damages resulting from the suspension order. A hearing on the motion for a temporary restraining order was held in chambers on the afternoon of December 16, 1976 with attorneys representing both sides present. At the conclusion of the hearing the motion for a temporary restraining order was granted, and the defendants were restrained from implementing the suspension order until December 27, 1976. Pursuant to a stipulation by the parties the temporary restraining order was extended until January 5, 1977. On January 5 a hearing was held on the permanent injunction.²

FINDINGS OF FACTS³

On Monday, December 13, 1976 a meeting was held of the Cleveland City Council (Council). It was presided over by George Forbes, the President of the Council. During this session Council engaged in a debate on the merits of tax abatement legislation. This legislation was sponsored by Council President George Forbes, among others. See, Tr. 43. At one point in the debate the plaintiff, Councilman Gary Kucinich, was given the floor by the Council President for the purposes of speaking on the tax abatement legislation. The following colloquy occurred:

MR. KUCINICH: Thank you, Mr. Chairman.

Mr. Chairman, Mayor Perk, fellow councilmen: Mr. Chairman, I am opposed to this ordinance and I feel this ordinance and the content of it is tantamount to the Council of the City of Cleveland raising the taxes of our constituents.

Mr. Chairman, I don't think we want to do that, yet this is what we will do if we vote for this ordinance.

Mr. Chairman, at a time when the people of this city are paying the highest taxes in the history of this county, we should be ashamed of ourselves for bringing this type of legislation before this body. Where is the tax abatement for the people of the city? Where is the tax relief for them? Many of the members of Council argue that they don't have anything to do with bringing tax relief for their constituents, that they cannot, which is probably true. But it is also true, Mr. Chairman, that this tax abatement issue will force an undue burden of taxation on the people who will be forced to pay for the increased development.

Mr. Chairman, there is another underlying factor regarding this legislation which I feel that, Mr. Chairman, is of utmost importance to this Council. Mr. Chairman, at this time I would like to call the Law Director to the mike.

MR. FORBES: Question?

MR. KUCINICH: Thank you. Mr. Chairman, Law Director, Mr. Douglas, the Growth Association is one of the chief proponents of this piece of legislation. The Council President has admitted that the Growth Association has offered him a few thousand dollars to throw a party for the kids in various councilmen's wards.

My question, Mr. Chairman, Mr. Douglas, is one of ethics.

MR. FORBES: Just one moment. Just one moment.

MR. KUCINICH: Mr. Chairman, I would like to ask the Law Director whether it is appropriate for this legislation to be before this body when such an offer was made to the Council President?

Mr. Chairman, I think the question is in order and I would ask that the Law Director be allowed to respond.

MR. FORBES: Are you inferring that I was bribed?

MR. KUCINICH: Mr. Chairman, I'm not making any charges of payoff.

MR. FORBES: Just a moment. You did your thing. You have done your thing. You made a very serious accusation. Just one moment.

MR. KUCINICH: I'm asking whether it is proper —

MR. FORBES: Just one moment. Mr. Douglas —

MR. KUCINICH: Perhaps if we had a —

MR. FORBES: Just one moment. I think everybody heard you. This is a very — I take it to be a very serious accusation.

MR. KUCINICH: It's not a question of payoff, Mr. Chairman, it's a question whether it's proper or not.

MR. FORBES: Just one moment, Mr. Kucinich. Just one moment. Please.

Mr. Kucinich stated that the Growth Association was the chief proponent of this legislation, that was the first statement that was made.

Mr. Kucinich then stated that the Growth Association had offered me 2 thousand dollars. This is not the usual Council rhetoric.

MR. KUCINICH: Mr. Chairman, you have been offered 2 thousand dollars.

MR. FORBES: Just one moment. Mr. Kucinich has inferred that I was offered 2 thousand dollars by the Growth Association for passage of this legislation.

MR. KUCINICH: Not for the passage of this legislation, Mr. Chairman. You were offered 2 thousand dollars —

MR. FORBES: Mr. Mayor —

MR. KUCINICH: By the chief proponent of this legislation.

MR. FORBES: Just a moment.

MR. KUCINICH: Not for the passage. No accusation of payoff on this legislation.

MR. FORBES: My integrity, I insist, I insist, I'm not going to leave here with the people in this audience, my colleagues, the media broadcasting this that somehow I have taken 2 thousand dollars.

MR. KUCINICH: I said you were offered, Mr. Chairman, which is exactly correct. There were members of this Council who were present when you stated that you were offered 2 thousand dollars from the Growth Association for a Christmas Party for kids in the wards. And I am asking whether or not it's appropriate at the time when this legislation is before this body.

I asked the Law Director a valid question. No charge of payoff was made and if there is any inference of payoff charge, I would respectfully submit that that is not the point, Mr. Chairman. The point is that we now have before this Council legislation which affects the Growth Association. And the point, Mr. Chairman, is that the Growth Association did offer you 2 thousand dollars for a party in the downtown area so that the councilmen could bring the kids down there.

MR. FORBES: I'm going to ask you point blank, are you inferring that I took 2 thousand dollars to pass this legislation?

MR. KUCINICH: No, Mr. Chairman, not at all. That is not my intent. My intent —

MR. FORBES: Just a moment. Sit down. You're out of order.

See, Tr. 20-25.

Kucinich sat down as he was requested to do. Councilman Moss then took the floor and moved that Kucinich be suspended for violating the Council rules of decorum. See, Tr. 26-27. Forbes ruled that Moss' motion would be entertained after Council had disposed of the tax abatement legislation, which it promptly proceeded to do. Debate on the motion to suspend was then opened.

A total of 18 councilmen spoke on the motion to suspend Gary Kucinich from Council. One of the early speakers was Councilman Moss who renewed his motion to suspend Gary Kucinich from Council for two weeks without pay because he had violated Council Rule 23. See, Tr. 46-47, 82-83. Rule 23 reads:

"Right to floor. When any member is about to address the Council, he shall rise from his seat and respectfully address himself to the presiding officer, and when recognized by the Chair shall confine himself to the question under debate, avoid personalities and refrain from impuning (sic) the motives of any other member's argument or vote."⁴

The precise conduct by Kucinich which allegedly violated Rule 23 was never stated. However the Court finds that Council and Kucinich understood that the plaintiff Kucinich was charged with "impugning the motives" of Council President George Forbes by allegedly inferring in a question to Assistant Law Director Malcolm Douglas that Forbes had accepted money for the passage of the tax abatement legislation. This finding is supported by the statement made by Council members during debate on the motion to suspend.

Councilman Strand stated:

"I do feel that in this situation when there was a blatant insinuation of something that everybody in this room knows wasn't true, including the man who made the insinuation, that absolutely he deserves a censure . . .." Tr. 63.

Councilman Zunt stated:

"But I do consider Mr. Kucinich's remarks purely political, of the basest sort and that is to impugn the reputation of a fellow colleague because he had a kind thought or because he cared for some poor children who rarely get downtown, who rarely have a treat, and who may never have been or never would be able to be entertained by some of the leaders in the City of Cleveland.

"Mr. President, I will gladly join with you in planning this Christmas party and accept whatever responsibility falls with it.

"And I would recommend to this body discipline for Mr. Kucinich of the most sternest sort." Tr. 69-70.

Councilman Collier stated:

"I've seen tough fights under Jim Stanton's administration, I've seen tough fights under Tony Garafoli's administration. But I've never seen any member to stoop as low as some of my colleagues in this body have.

"Last week we had a colleague accuse everybody here of being on the take. That died.

"This week we got one of the same members of that group accusing the President of being on the take. I'm pretty sure if the news media and the County Prosecutor would do some investigating on these gentlemen, they might find them on the take.

". . . Mr. President, I stand ready tonight to vote on whatever the penalty must be." Tr. 59-60.

Councilman Bonanno stated:

"If we're going to have rules, the rules must apply to everyone, they must apply to you as well as myself. They must apply to Kucinich as well as Collier.

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