POTSDAM — The village and lawyers for Frederick “Hank” Robar have agreed to a stipulation to the ongoing lawsuit over the latter’s “toilet gardens” in an attempt to narrow its scope and move the matter forward.
On Wednesday, a document filed with the U.S. District Court Northern District of New York acknowledged both parties had made some concessions that would move the matter into the discovery stage.
According to the stipulation, Mr. Robar would remove Village Mayor Reinhold J. Tischler, Deputy Mayor Stephen Warr and Code Enforcement Officer Lisa Newby from the suit. He would also withdraw the portion of his complaint that his rights were violated under the Visual Artists Rights Act of 1990. In response, the village agreed it would not file a motion to dismiss the updated complaint, thus moving the process forward.
“I think the other side kind of recognized after we got the decision on the preliminary injunction motion that it was very unlikely that the judge would grant their motion to dismiss, but they still wanted to pursue dismissal as against some of those individual defendants and the VARA claim,” Jon E. Crain, one of the attorneys for Mr. Robar explained. “So, rather than both sides spending the significant amount involved in litigating that motion to dismiss, we agreed to withdraw it and in exchange they agreed not to make a motion to dismiss so that we can basically get into the merits of the lawsuit without having to go through that process.”
The village now has 20 days, as of Wednesday, to respond with an updated response to the amended complaint. From there, both sides will meet at a scheduling conference with the judge in late November, which will likely begin the lengthy process of discovery. Provided the parties don’t come to a settlement in the meantime, the judge could either issue a summary ruling or take it to a trial.
Mr. Robar filed the lawsuit against the village in August, alleging the village Board of Trustees violated his First and Fourteenth Amendment rights, as well as those under VARA when it ordered him to remove his toilet gardens by Sept. 1. His lawyers also asked for a temporary restraining order and preliminary injunction preventing the village from taking any action against him or removing his toilets, which he alleges are a protected form of speech and protest.
The village responded by asking the court to dismiss the complaint entirely. Prior to the hearing on that motion, Jude Lawrence A. Khan granted Mr. Robar the injunction. In his ruling, Mr. Khan noted there was significant merit to the argument that the toilet gardens may be protected under the First Amendment. Mr. Robar’s attorneys then proceeded to amend their complaint accordingly, thus mooting the village’s motion to dismiss, leading to the stipulation now in effect.