On November 9, 2011, Occupy Delaware filed a lawsuit in the Court of Chancery of the State of Delaware under the First and Fourteenth Amendments of the United States Constitution, as well as under Article I, § 5 of the Delaware Constitution, against the City of Wilmington. The plaintiff, represented by public interest counsel, sought injunctive and declaratory relief. The complaint alleges that the City of Wilmington violated the constitutional rights of Occupy Delaware and its members by: (1) denying it and its members the right to use Peter Spencer Plaza in Wilmington as a location for conducting protests unless they pay the City a $200 fee; (2) preventing it and its members from using the plaza at night; and, (3) preventing it and its members from placing tents and other temporary shelter on the plaza. Verified Compl. 1-2
. Specifically, Occupy Delaware claimed that the Wilmington City Code provisions that the City relied on in imposing these requirements were by their terms not applicable to Peter Spencer. Occupy Delaware further claimed the provisions were unconstitutionally overbroad and vague in such a manner that they could not be applied to limit rights guaranteed by the First and Fourteenth Amendments of the United States Constitution as well as by Article I, § 5 of the Delaware Constitution.
On November 9, 2011--the same day this suit was filed--Occupy Delaware filed a motion for a temporary restraining order asking the court to prevent the City from depriving Occupy Delaware members from using the plaza. Occupy Delaware argued that if the City were to be allowed to remove Occupy Delaware members from the plaza, or allowed to otherwise prevent them from using the plaza, this would constitute immediate irreparable harm, as it would deprive Occupy members from fundamental constitutional rights--namely the right to assembly and freedom of speech. In contrast, Occupy Delaware argued that there was no alleged harm that would arise from the granting of the temporary injunctive relief.
On November 10, 2011, the Court of Chancery (Judge Sam Glasscock, III) granted the temporary restraining order for 24 hours and scheduled a hearing on the motion for the next day. Order Granting TRO
. Later that day, however, the parties reached a settlement. Settlement Agreement
. The terms of the agreement provided that Occupy Delaware and its members were allowed to: (1) use Peter Spencer Plaza without paying a fee for as long as they wished, (2) remain on the plaza seven days a week and around the clock, and (3) place tables, tents, signs and other items on the plaza. However, Occupy Delaware agreed to limit the location of where its members were allowed to place their tents, and not to block pedestrian traffic. Occupy Delaware further agreed that it would not establish another encampment in downtown Wilmington unless the plaza became insufficient to host its numbers. The City also reserved the right to "ask the Court to excuse it from complying with [the] agreement if, due to a physical change in the plaza that is in no way attributable to actions by the city or its agents, it becomes unreasonable for the occupation to continue at Peter Spencer Plaza." Id.
Occupy Delaware filed a supplemental complaint on May 7, 2012, alleging that the City was in violation of the settlement agreement. Verified Supplemental Compl. 1
. Occupy Delaware alleged that that on April 23, 2012, the City issued a news release in which the mayor directed Occupy Delaware to discontinue its occupation of the plaza. Occupy Delaware argued that in the absence of a finding by the court that it was unreasonable for the occupation to continue "because of a physical change in the plaza that is in no way attributable to actions by the city or its agents," as provided by the settlement agreement, this was an anticipatory breach of the settlement agreement by the City. Occupy Delaware further argued that the November 2011 settlement agreement provided it with a contractual right to occupy the Plaza, in addition to its prior constitutional claims. See id. 4
On July 16, 2012, the parties requested the court to approve a joint stipulation effectively dismissing the suit without prejudice. Stipulated Order
. The stipulation provides that, given that the Plaza was to be renovated beginning September 17, 2012: (1) Occupy Delaware would remove its tents, signs, and other structures and items its members had placed by September 10, 2012, (2) Occupy Delaware would not add any tents, signs or items to the Plaza after July 16, 2012, and the City would not seek to have any removed prior to the termination of the encampment, (3) the November 10, 2011, settlement agreement would be terminated, and (4) each party would bear its own attorney's fees and costs. The court approved the stipulation the same day. Id.Greg in den Berken - 06/23/2014