03/19/08 - “We respectfully believe that the town’s motion is without merit and ours has merit,” J. Joseph Bainton said. “We’ll let the judge deci

Town seeks to end beach suit

By Ken Borsuk,

Greenwich Post - Staff Reporter

The town is seeking a dismissal of a lawsuit brought against it by two Stamford men who claim the town violated their rights to free speech by not allowing them to get resident beach passes.

Paul Kempner and his co-plaintiff, James Schwartz, sued the town last year, claiming its beach policy violated their rights by denying them the opportunity to apply for and receive the same seasonal beach pass residents can get. In a motion filed March 7 with the United States District Court in Bridgeport, the town, which is being represented by outside counsel Michael Shea, asked the court to grant a summary judgment dismissing the suit because it cannot be shown that anyone suffered any legal injury and there is no evidence of any constitutional rights being violated.

“[Mr. Kempner] cannot prove his damages claim because his damages consist of legal fees he supposedly incurred in dealing with the legal consequences of his refusal to pay the beach entry fee on occasions when he bicycled to the beach,” the motion states.

It adds that Mr. Kempner did not engage in speech on those occasions, and is unable to show he intends to engage in any speech or even visit the beach because he just rides through on his bicycle.

The motion also argues Mr. Kempner’s claim for relief is moot because he is older than 64, and since February 2007, people 65 and older may visit the beach for free, even if they are not residents. Mr. Kempner’s previous claim that the town discriminated against him by charging him for biking through was earlier dismissed on that ground.

“The court should await a case involving proper plaintiffs with genuine free speech claims before embarking on a factual inquiry into whether the town can justify its beach entry fee,” the motion argues.

J. Joseph Bainton, Mr. Kempner’s attorney, said he will be filing a response in opposition to the town’s motion in court tomorrow. He will also file, on behalf of his client, a cross-motion calling for summary judgment and for the judge to rule in his favor on the issue of liability..........