Furstenau, Naperville to head back to court

Thought it was almost over? Think again. Settlement talks between City Councilman Richard Furstenau and the city of Naperville have reached a stalemate, with both sides filing motions this week asking a federal court judge to enforce two different versions of the settlement agreements.

Throughout the week three different motions were filed in federal court relating to Furstenau's civil rights lawsuit against the city. The documents highlight the breakdown in negotiations, including the city's objections to language in a version of the settlement agreement Furstenau is asking the court to enforce, which would bar City Council members from speaking publicly about the case.

The parties are scheduled to go before federal Judge Charles Norgle on Friday morning to argue their motions.

Attorneys for Furstenau could not be reached late Thursday, and an attorney representing the city referred The Sun to the recent court filings.

Furstenau was arrested following an incident Jan. 1, 2006, on Chicago Avenue near the city's downtown, at the start of a parade. He was accused of shoving Naperville police officer Michael Hull with the back of his hand in a dispute over cars being towed near the parade route. He was acquitted in the case in May 2007.

Five months later, Furstenau filed his suit, contending police and city officials "mounted an orchestrated campaign to jail, silence and politically destroy" him because of positions he has taken while serving on the council, including his questions about police department spending.

According to recent court documents, the city filed a motion Monday indicating a settlement could not be reached and asked to reset the May 12 court date to discuss a mental exam a judge previously required of Furstenau. In early April both parties told the court they were involved in settlement negotiations.

But on Tuesday, Furstenau filed a motion to enforce a settlement agreement despite the city's view that a settlement could not be reached. His motion indicates the parties verbally agreed to settlment terms in March.

"Illinois courts hold that even if the parties to a settlement agreement contemplate that they will reduce their agreement to a more formal written agreement at some point in the future does not mean that they have not orally had a meeting of the minds as to the essential terms of their settlement sufficient to bind the parties," Furstenau's motion states. "...Here parties have agreed to all the material terms and therefore the court should enforce the parties' settlement agreement."

Court documents indicate that while the city agrees with the material terms of the agreement in Furstenau's motion, it objects to agreement language including the phrase, "In further consideration, the parties, city of Naperville councilmembers, and their respective counsel herein agree to submit a mutual statement to the media memorializing their settlement agreement, and further agree to forego making any further public comment regarding either the facts of the underlying litigation or the settlement thereof." Having previously objected to such terms throughout negotiations, including the gag rule in a draft of the settlement agreement sent to the city's attorneys April 24, it was interpreted by defendants that a settlement could not be reached, court documents indicate.

Attorneys for the city countered by filing a cross-motion Thursday, saying Furstenau's settlement agreement is different than the one previously agreed upon. Instead, they ask the court to enforce the "true settlement agreement" orally agreed to by the parties March 16, and a draft of the document was agreed upon March 20 and confirmed again April 9.

"Quite frankly, the contents of Furstenau's Motion to Enforce surprised the city. In late March, all the defendants in this case believed that a settlement had been reached. ... Furstenau suddenly refused to settle the case unless the city agreed to new material terms," the city's motion states. "Now, for the first time, Furstenau insisted on terms that would gag nonparty public officials from commenting on, what is unmistakably, issues of public significance to the Naperville community — namely all issues relating to this very controversial lawsuit.

"Given that the subject matter of this lawsuit has been a major issue to the Napervile community for well over the past year and a half and has cost the taxpayers of Napervile over $1 million to defend," the city's motion continues, "this new demand by Furstenau for a gag order of nonparty public officials was, for obvious reasons, steadfastly rejected." As a result of the untenable position that Furstenau decided to take, the Defendants thought that a final settlement could not be achieved."