Local blogger Paul Ripp’s lawsuit against Fairhope Council President Jack Burrell and the city regarding an alleged violation of Ripp’s constitutional rights continues to move forward, as the suit has recently been amended to include the other members of the Fairhope City Council as additional defendants.
Court records obtained from the federal court system by The Courier also show a possible settlement was on the table earlier this year, but was eventually rejected by Ripp.
History of the lawsuit
In late December 2017, blogger Paul Ripp filed a lawsuit in federal court against Fairhope Council President Jack Burrell for actions taken by Burrell at an Aug. 28, 2017, Fairhope City Council meeting where Ripp said Burrell denied him his “constitutional rights protected by the First and Fourteenth Amendments.”
Ripp, the author of the Ripp Report blog, posted a copy of the lawsuit he filed on a Dec. 29, 2017, post entitled “SEE YA IN COURT JACK.”
“The meeting in question, along with Ripp’s nasty confrontation with Council President Burrell—who denied Ripp his right to speak in a public forum sanctioned by City of Fairhope ordinance—and threatened his removal and arrest for trying to address the council—was captured on the official video of the council meeting,” Ripp wrote.
Ripp wrote this was the first time he had filed suit against the City of Fairhope regarding the issue of allowing him to speak.
“This is the first time Ripp has sued the City of Fairhope over refusing to allow him to address the city council,” Ripp wrote. “The city had denied him in the past, several times, the ability to speak at public meetings, forcing the council to adopt a new set of rules regarding public participation. These are the rules City Councilman Jack Burrell ignored when he allegedly denied Mr. Ripp, a Marine Corps veteran who served in Viet Nam, his constitutional right to free speech.”
During the Aug. 28, 2017, meeting, as Ripp approached the podium to speak, Burrell told him he would not be allowed to speak.
The following audio comes directly from The Courier’s recording checked against footage from the City of Fairhope’s video archives.
Burrell: No, sir. Mr. Ripp, I’m not going to allow you to speak.
Burrell: No, sir, I’m not. You’ve relinquished your rights. It’s a privilege, and I’ve had more complaints about you getting up here and spreading innuendo, talking about citizens and employees and council members. Most people that I’ve talked to don’t want to give you the time of day. Chief, if you will show him back to his seat. Take a seat. I’m not allowing you to speak.
Ripp: Are you aware this has been done before five times?
Burrell: It doesn’t matter to me what’s been done before. It’s a right, not a privilege (pause) a privilege, not a right, so you can take your seat. I’ve heard enough from you.
Burrell: Is there anyone else who would like to speak? (To Ripp) You can go back and write all you want to. Don’t say a word. You’re going to go to jail.
Ripp: I will.
When asked for a comment shortly after that Aug. 2017 meeting, Burrell said he never threatened to remove Ripp from the meeting.
“I didn’t kick him out, and I didn’t violate his free speech,” Burrell said. “There was never an instruction for him to be removed. That was not my instruction to Chief Petties at all. I think he chose to walk out so he could say he got kicked out, which is not at all what happened.”
Nowhere in the recording of the exchange does Burrell instruct Petties to escort Ripp from the room.
Ripp also called out the other council members, City Clerk Lisa Hanks and former City Attorney Tut Wynne and current City Attorney Marcus McDowell for their part in the event.
“City Attorneys, council council (sic) and city clerk, remained mute during Mr Burrell’s actions,” Ripp wrote. “Ripp’s lawsuit seeks damages for what he described as “humiliation” and “emotional pain.”
In the suit filed by attorney Gregory Morris, however, Ripp originally only sued Burrell, both as an individual and as a city official for his actions.
The lawsuit alleges Burrell violated the City Council’s rules of procedure in not allowing Ripp to speak during the meeting.
“The City Council President embarrassed and humiliated the Plaintiff, causing the Plaintiff to suffer grave emotional stress,” the lawsuit alleges. “Clearly, the City Council President was acting beyond his presumption of qualified immunity. The City Council President’s language and his tone and tenor were clearly an attack on the Plaintiff personally as well as an affront against civil liberty.”
Possible settlement scuttled by Ripp
According to the documents obtained from the federal court system, the two parties were apparently close to a settlement in early May of this year.
In a series of emails between Burrell’s attorney Colin Sherman and Ripp’s attorney Morris, the potential settlement originally included a $16,000 payment, a mutual confidentiality agreement and a statement to be read at a council meeting as drafted by Ripp.
“Our side as a whole may lose interest in further discussions if Mr. Ripp wants to change the terms,” Sherman wrote on May 1. “Ergo, I will wait to hear from you on this question. It is certainly Mr. Ripp’s prerogative if he wants to change his mind but our chance of brokering an agreement from our side may evaporate if Mr. Ripp changes in mind.”
Morris responded to the May 1 email saying Ripp had “sent (him) a rather lengthy email (15 paragraphs) much of which is privileged.”
Morris wrote that they had gotten Ripp to “agree to some language that I believe is content neutral and perhaps acceptable to the city,” adding that “Mr. Ripp does not expect a public apology but he does expect the terms to be disclosed.”
Morris said Ripp also requested that Fairhope City Attorney Marcus McDowell be removed from the settlement discussions, but added a further quote from Ripp which he called “the perplexing part.”
“Now here comes the perplexing part ‘I do wish to settle the lawsuit suit and will be cooperative in that process. In the event that a settlement cannot be reached and Mr. Burrell drags the insurance company into a black hole and we go to trial, then I will vigorously defend myself. The insurance company needs to know I will seek additional legal counsel, and experts in Constitutional law,’” Morris wrote, quoting Ripp. “If perplexion were a word, I would be the poster boy.”
In a May 3 email, Morris’ email, Morris wrote he had spoken to Ripp and that “he is ready to settle this right now.”
“I have only one curve ball and it is not a huge one it is $750,” Morris wrote. “Mr. Ripp has obviously racked up fees, bills expenses and certainly you know I have as well. So $16,750.00 for a complete and total release. He has agreed to have me work on the language based upon Judge Bivins’ draft. I can assure I have been great latitude in this regard. Further, he does not expect an apology of any type from Mr. Burrell.”
According to filings from Ripp’s attorney, on or around May 7 Ripp decided to reject the settlement offer.
On May 17, Burrell’s attorney filed a motion to enforce the settlement agreement saying Ripp was legally not allowed to reject the agreement after it had already been agreed to.
“Alabama law prohibits Mr. Ripp from doing so,” the motion said. “With the mutual acceptance of consideration and terms, the parties formed a valid contract. The agreement is both binding and enforceable upon the terms reached and assented to by Mr. Ripp. Defendant negotiated in good faith and is fully prepared to go forward with execution of the terms negotiated and accepted.”
Ripp’s attorney responded on May 31.
“Although both parties sought to settle the dispute, the settlement agreement was not accepted, nor signed, by the Plaintiff,” the response said. “In that regard, the agreement was ultimately not accepted and therefore, cannot be enforced.”
On June 8, Judge William Steele denied the motion to enforce the settlement agreement.
“Burrell argues that the parties, through counsel, engaged in settlement negotiations by e-mail that culminated in the plaintiff’s acceptance of an offer, resulting in an enforceable settlement agreement,” Steele wrote in his ruling. “After careful review, the Court concludes that Burrell has failed to show that all necessary parties agreed to, and were bound by, identical terms. The Court therefore concludes that no enforceable settlement agreement has been demonstrated.”
Adding other council members to the lawsuit
On June 29, Ripp’s attorney filed an amended complaint to the court that sought to add Councilmen Robert Brown, Jay Robinson, Jimmy Conyers and Kevin Boone as additional defendants in the lawsuit, as well as City Attorney McDowell.
“The proposed added Defendants would clarify the Plaintiff’s constitutional claims as well as bring to light a due process claim against the City of Fairhope and the City Council Members, acting officially,” the motion stated. “These new claims would be based on similar grounds to those alleged in connection with the claims against the individual capacity defendant, Jack Burrell.”
Burrell’s attorney filed a response to that motion on July 6, asking the judge to deny the inclusion of McDowell in the lawsuit as he was not serving as city attorney at the time of the incident being litigated.
“Plaintiff’s cause of action arose on August 28, 2017 during the regular meeting of the City Council of the City of Fairhope,” the response said. “Mr. McDowell was not the City Attorney of the City of Fairhope at that time. In fact, Mr. McDowell was not appointed as City Attorney until December 18, 2017.”
An amended complaint filed July 16 removed McDowell but did have Boone, Brown, Conyers and Robinson added as defendants.