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Attorney: Newspaper Violates Councilmen's Right to Free Speech

In a twist, a San Juan Capistrano assistant city attorney said council members' votes are protected under the First Amendment.

A Common Sense news rack in front of the San Juan Capistrano City Hall.  Patch photo credit: Penny Arévalo
A Common Sense news rack in front of the San Juan Capistrano City Hall. Patch photo credit: Penny Arévalo

Originally published at 4:33 p.m. Jan. 27, 2014. 

It is not the city that violated the First Amendment rights of newspapers to place racks at San Juan Capistrano City Hall but a local watchdog newspaper that is violating the free speech rights of the majority councilmen and city attorney, say legal papers filed in the news rack lawsuit.

While Community Common Sense was able to secure a court order that cleared the path for the return of its news racks at City Hall and the Community Center in December, the underlying litigation presses on.

In papers filed last week, Assistant City Attorney Philip Kohn argues that City Attorney Hans Van Ligten and Councilmen Larry Kramer and John Taylor, along with Mayor Sam Allevato, should have their names removed from the lawsuit.

“[People] have a right not to be dragged through the courts because [they] exercised [their] constitutional rights,” writes Philip Kohn, an assistant city attorney representing the councilmen and Van Ligten. Bracketed and highlighted parts included.

Kohn says voting in closed session to ban newspaper racks – even though he denies such a vote took place – is an act protected by the First Amendment.

“[A]ny of the City Councilmembers’ statements, including an alleged vote, that were made in closed session on Aug. 6, 2013 constitute protected speech,” Kohn writes.

The same is true with follow-up letters Van Ligten wrote to area newspapers in response to council direction, Kohn says.

The attorney for Common Sense, Wayne Tate, declined comment.

Without commenting directly in the matter, Terry Francke, general counsel for Californians Aware – which helps citizens understand the laws governing public forums – said groups like his have found similar, so-called anti-SLAPP arguments troublesome. SLAPP stands for strategic lawsuit against public participation.

“Use of the anti-SLAPP motion not only to get citizens’ lawsuits against local government dismissed but to force the losing plaintiff to pay the government’s attorney fees is proliferating in a way that, in my opinion, the Legislature never contemplated,” Francke said.

The Legislature did modify the law so that citizens bringing lawsuits against agencies for violating open meetings or public records laws wouldn’t have to pay legal fees if government officials persuaded a judge their constitutional rights were being violated.

The case at hand, however, is not suit claiming a violation of California’s open meeting laws or the Public Records Act.

The parties will be back in court on Feb. 27 to address a preliminary injunction to extend the life of the December order that allowed the return of the news racks.

Then, the hearing on whether the anti-SLAPP motion is successful is scheduled March 6. Even if successful, the lawsuit against the city as a named defendant  would continue, Kohn acknowledges in his legal papers.

bill odel January 28, 2014 at 05:10 PM
sorry you did not or can't read what I said. You and the other "angry mob" have taken over the COMMENTS section on theses postings. The article itself was just fine. Try reading the postings, and they are all the same.
Gus Gunderson January 28, 2014 at 05:45 PM
I understand almost all the stores that sell guns have sold out in the past 24 hours in South Orange County due to the number of people that are holding guns to neighbors heads to prohibit them from writing comments on Patch.....
Gus Gunderson January 28, 2014 at 05:52 PM
Did you ever think Bill that the Sam Allevato side is terribly embarrassed by his most recent actions? Come on Bill, you are a smart man and business owner, this is high school civics 101. First the city council came out of closed session and said there was no vote. Then, Dr. Roy Byrnes said yes there was a vote. Sam Allevato emphatically denied there was a vote. Then the City attorney said there may have been a vote. Now, if there was a vote, it was within their First Amendment rights? Please Bill, you are obviously one of the few Sam Allevato supporters, you need to clue him in before it costs you and I more money.
Donna Fleming January 28, 2014 at 06:00 PM
The "Angry Mob" Bill Odel is collectively, your neighbors, business owners, and communtiy members of San Juan Capistrano. Do you think we will go quietly along with a city leader who trampled the first ammendmen, Free Speech, Freedome of the Press? No we will rage, rage against the death of free speech.
melissa kaffen January 28, 2014 at 06:33 PM
Excuse me but the Council majority ain't just 3 ordinary "people" with rights not to be dragged through the courts"...They are the three elected officials who officially banned a newspaper that just happens to embarrass them with the facts. This Recall referendum is a gift that keeps on giving. By now even low info voters are reading CCS and realizing just how out of control the Kramer-Taylor-Allevato- majority is.
bill odel January 28, 2014 at 07:10 PM
I'm not going to get into the issues on this as I see wrong on both sides. I was just saying you the angry mob have taken over this site, and no one will post anything because of the personal attacks posted any time anyone that does not agree with you posts.
bill odel January 28, 2014 at 07:14 PM
As for the angry mob being my neighbors, customers, etc, I have both sides of this issue and both sides of many more issues as neighbors and customers. I think you may be surprised at the election time as I'm not sure if you are the majority. It will be close, and I will watch. You guys sure are louder and more angry.
bill odel January 28, 2014 at 07:16 PM
this is not my issue, so I am just reading the posting with interest.
Donna Fleming January 28, 2014 at 10:19 PM
You are right Melissa. I never paid much attention to CCS, now I read it. It is like when we were kids and our parents supervised what we read. "Catcher in the Rye" oh no. Now, I can't wait to see what is in CCS. Because by now, I know these people in town, and it is like a novel, in real life. Peyton Place right here in San Juan Capistrano. So the mayor thought he would ban the publication because of articles he did not like. Now it is the hottest most well read paper in town. Human nature, tell us we cannot read something and people will clammer for a copy. Don't burn the books. Save our town. Recall Sam Allevato.
Joe Holtzman January 28, 2014 at 10:45 PM
It also appears the Three Amigos violated The Brown Act! What duplicitous creeps !
Gus Gunderson January 28, 2014 at 10:54 PM
Kids, the city council is an excellent example of why one should never ever, ever take drugs.
Gus Gunderson January 28, 2014 at 11:01 PM
Bill Odel, what could possibly be wrong with defending our First Amendment? Hundreds of thousands of our friends, neighbors, family and relatives have died defending our United States Constitution. How many people have died defending a anti-SLAAP lawsuit. Which is based on what our country was founded on, and which is just plainly said, silly. If the attorney representing the city was paid on a contingency basis, I am sure you would not have seen this motion.
Donna Fleming January 29, 2014 at 12:11 AM
Gus, Sunshine, Joe, and Melissa....this may be the nail in the coffin. When Allevato announced he was mayor after the recall was served to him, I thought that was a bold, in your face move. But, to challenge the First Ammendment is just unAmerican. It flys in the face of everything Americans, Conservative, Democrats, Republicans, Liberals, we are First Americans. I think this is a man with a huge ego, who thinks he can run our town like they did in the old west. He just does what ever he wants. Those insulting flyers sent to residents of San Juan Capistrano were mocking residents who are involved in our community. Sam you have nerve. I know you grew up here and are and have many old friends but, even those friends went to school. We the people will fight for our constitutional rights.
Penny Arévalo (Editor) January 29, 2014 at 12:16 AM
In fairness, Donna, Mayor Allevato may have nothing to do with legal strategy. Once the council gave the green light to fight the lawsuit, their lawyer's job is to advocate strongly for his clients. This angle may be the best one the City Attorney's office could come up with. It may have nothing to do with the council.
Donna Fleming January 29, 2014 at 01:56 AM
But Penny...Mayor Allevato is part of the city council who gave the green light in the first place. I know it is the attorney's job to advocate for their client. These lawyers make money advocating. And, the city council used bad judgement in ordering the news racks removed, and bad judement to fight the restraining order to get them back. Allevato, could have backed off and said lets not fight this. His EGO is is going to cost us.
Sunshine January 29, 2014 at 03:29 AM
And Allevato, Taylor, and Kramer's jobs are to advocate for the residents of San Juan Capistrano, which they don't. They are politicians through and through. It's a shame that these elected officials are more concerned with serving themselves than being a servant of the people.
Gus Gunderson January 29, 2014 at 10:35 AM
With all due respect Penny, Sam Allevato can stop this legal charade at any time. San Allevato CHOOSES not to stop it. You know Taylor and Kramer will vote any which way Sam Allevato votes. Now that Sam Allevato has chosen to continue this legal charade, I am looking forward to reading the depositions of Karen Brust, Hans Van Litgen, Larry Kramer, John Taylor and Sam Allevato when the deposition gets to what exactly happened inside that closed door meeting? How did they plot to trample on the First Amendments rights of the residents? If Sam Allevato was smart, he would do everything he could to avoid having those depositions taken. I believe there is much more to this that has not yet come out.
Whiskey Bent January 29, 2014 at 10:40 AM
Penny that comment was ridiculous. The council makes all decisions after counsel from staff.
Penny Arévalo (Editor) January 29, 2014 at 10:43 AM
I'm saying the decision to pursue litigation kicked off a series of events. After getting the green light, the lawyers decide legal strategy. The attorneys MAY have consulted with the council, but not necessarily. And even if they had, they may have presented it in a way that this was their best course. Yes, the council voted to defend the lawsuit. That is on them.
Gus Gunderson January 29, 2014 at 10:48 AM
I agree with you on that Penny. I would also state that once the legal counsel comes back to the city council with the legal strategy, the city council can still vote not stop that legal strategy and the city council can still vote to withdraw the motion even after it is filed with the court.
Donna Fleming January 29, 2014 at 11:47 AM
Penny, has Dereck Reeve commented on this latest law suit? I would sure like to hear what he has to say. Didn't he write a letter about not being able to attend this meeting?
Peace 4 SJC January 29, 2014 at 07:54 PM
Conspiracy theorist unite! Secret closed door meetings, votes that did or did not happen, taking advice from a lawyer...isn't time to move away.
quercus January 29, 2014 at 08:34 PM
Yeah, you might be on to something Peace. Where are you moving?
Mark Speros January 29, 2014 at 09:23 PM
Talk about pretzel logic initially...now it's "spaghetti bowl" defense! I haven't seen this much dodging, faking and weaving since Mohammad Ali's last title fight! Are residents really suppose to believe this defense that sounds like it came from the mind of a two year old? "We didn't vote...but if we did...our rights are protected...but the people we represent aren't...now pay the attorney more money...and Fight, Fight, Fight! to save us from our own stupidity" This is the same, bizarre logic used in the current anti-recall flyer being handed out. To quote: "To protect the taxpayers of SJC, Sam supported filing an appeal..(to the tiered water rate ruling)" PROTECT us?...from paying higher, illegal fees? Thanks, I'll skip the "protection" you're offering (Flashback to the Sopranos' definition of protection). And thanks for running up the attorney fees, too. The $93,000 cost of the recall is going to be a windfall in savings at this rate!
Christie February 02, 2014 at 10:42 PM
How is being in a position of power and abusing that status absolve one from making a bad decision?
Christie February 02, 2014 at 10:47 PM
On a related note: Orange County Free Speech Picnic Saturday, February 8, 2014 Noon – 3 p.m. C. Russell Cook Park 28202 Calle Arroyo San Juan Capistrano 92675 (On the softball fields at the corner of La Novia Ave and Calle Arroyo) Bring your picnic lunch and lawn chairs For a fun-filled, patriotic community event. Listen to music and many inspirational speakers including: KEYNOTE SPEAKER: GINA LOUDON PhD (author, anchor, columnist, show host, and Fox News commentator). Also featuring: Evan Sayet, Television writer/producer turned conservative activist And: Walter Myers III, one of OC’s leading Bloggers & political philosophers John Oetken, a dynamic leader of Oathkeepers John Webb, businessman, patriot former Tea Party candidate for Congress Karen Siegemund, founder of Rage Against the Media Plus: Councilwoman Deborah Pauly Talk Show Host, Conservative Activist, Air Force Veteran, wife, mother, servant of the Lord FREE SPEECH is one of the most dearly held of our 1st Amendment rights. Unfortunately, it is being threatened in many ways across the country. Bring your friends and family to enjoy an afternoon with like-minded Patriots!
Sunshine February 03, 2014 at 03:19 PM
As a matter of fact, Christie, Deborah Pauly was one of the caricature figures in that disgusting flyer. She was drawn in a circus ringmaster outfit, wielding a whip. Deborah will get to address and respond to that piece of trash mailed to all SJC residences. It's sad that people have to come together to support and defend our First Amendment. Who would think that three city councilmen (Allevato, Kramer, and Taylor) would violate it and ban newspapers??
Donna Fleming February 03, 2014 at 07:01 PM
Protection rackets have been around forever. Our mayor wants to protect us from the articles published in Capistrano Common Sense? Researching Protection Rackets, I found Regulatory Capture. Definition: Regulatory capture is a form of political corruption that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or special concerns of interest groups that dominate the industry or sector it is charged with regulating. Regulatory capture is a form of government failure; it creates an opening for manipulation of municipal companies, like the water company, that are financially injurious to the public. Our city council, who is supposed to act in the public interest has acted as a regulatory agency for the SJC City Water company, and supports special interest groups like the Open Space Commission. The Open Space Foundation is a non profit organization. Our mayor has a special interest in San Juan Cares an organization with special interests that benefit the Open Space Foundation and the City Water Company.
Sunshine February 03, 2014 at 09:55 PM
And all this benefits and has benefitted Sam's rich buddies in the Rancho Mission Viejo Development Company. That area would and could not have been developed without the support of the council majority in SJC who were looking out for their buddies and not the residents of SJC. That area is bigger than Rancho Santa Margarita and will impact our city in negative ways as it already has. Our water situation and our expensive parks in that area are a product of manipulation by the council majority to get RMV built.
Donna Fleming February 04, 2014 at 12:56 PM
Shelly...In response to your long commentary. http://www.youtube.com/watch?v=4php_B1LQiM


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