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Councilmen to Fight Newspaper Lawsuit

Shunning a settlement offer, the three councilmen named in the lawsuit and the city attorney prepare for court.

News racks at San Juan Capistrano City Hall (on the left) before they were banned. Patch file photo.
News racks at San Juan Capistrano City Hall (on the left) before they were banned. Patch file photo.

Three City Councilmen and lawyer for the city will defend themselves against a First Amendment lawsuit a newspaper banned from City Hall filed two weeks ago, San Juan Capistrano City Attorney Hans Van Ligten announced late Tuesday.

The City Council technically held three meetings yesterday. The second one was devoted to several pending and expected lawsuits, including the one involving a recent ban on news racks at City Hall and the Community Center. At the end of that second meeting and just before the start of the third, it was announced that there was nothing to report out from the council’s closed-door discussions.

But at the very end of the third meeting, Van Ligten said he needed to correct the record, that there was action to report.

“The city attorney was directed to defend the action [the newspaper lawsuit],” Van Ligten said. The vote was 4-0, with Councilman Derek Reeve, a lawyer, not participating in the session because he previously represented the plaintiff.

In November, the Community Common Sense, an advocacy paper often critical of the council majority, filed a lawsuit against Van Ligten, new Mayor Sam Allevato and Councilmen Larry Kramer and John Taylor in Orange County Superior Court, claiming they “violate the constitutional right of every resident in SJC to access and read newspapers and news publications as they see fit.”

The suit is in reaction to an August decision the council made to ban all newspaper racks at City Hall and the Community Center after Common Sense asked permission to place its news racks beside the Capistrano Dispatch and Orange County Register’s Capo Valley News.

The lawsuit seeks to lift the ban affecting all three publications.

Reacting to the news, Common Sense attorney Wayne Tate said: “Given their course and conduct leading up to the filing of the lawsuit, I’m not surprised.”

Tate said he had made a settlement offer last week.

“I don’t understand what their defense is going to be,” he said.

Penny Arévalo (Editor) December 04, 2013 at 05:35 PM
First, the city is named. Second, it was put on the agenda. Reeve recused himself, but Roy Byrnes was there, reflecting in the reporting out of a 4-0 vote.
quercus December 04, 2013 at 05:46 PM
Ok, understood. But going forward, how can they meet to discuss this without violating the Brown Act?
Penny Arévalo (Editor) December 04, 2013 at 05:48 PM
I guess I'm not understanding. Where's the Brown Act violation? When they talk about it in closed session, it will be on the agenda, as it was yesterday. They will report out (hopefully in a more timely manner) any reportable action taken. Litigation is allowed to be discussed in closed session. What am I missing?
quercus December 04, 2013 at 05:51 PM
And will the taxpayers of the city be on the hook for the expenses of defending the council members and the city attorney personally after they declined an offer to settle? How could those who have been named in the suit vote on the matter without conflict? Questions abound ............
quercus December 04, 2013 at 05:54 PM
Either they must meet as a council to discuss the lawsuit or not. That will be difficult if Byrnes and Reeve are present. It will be a Brown Act violation if they are not.
quercus December 04, 2013 at 06:02 PM
Also since 3 of the council members have personal exposure, how could they vote on this without conflict? Having decline an offer to settle, does this mean the city is on the hook for everyone's legal bills?
Penny Arévalo (Editor) December 04, 2013 at 06:03 PM
I believe what you may be trying to describe is a conflict of interest, not a Brown Act violation. Reeve cannot be present, but Byrnes can, and it will be properly agendized and reported out. Now let's say one of the defendants has a different take on the events and wants to present a different defense. That person hires his own attorney. At that point, it may be a conflict for that person to sit in closed-door sessions to discuss legal strategy for the city. That's a conflict of interest, not a Brown Act violation per se. The city has the right to defend itself, so the discussion of that defense will be done in closed session on properly noticed meetings. As far as the legal bills, the city probably picks that up for everyone, especially if they're presenting one unified defense.
quercus December 04, 2013 at 06:30 PM
I believe you are overlooking the fact that because Alevato Kramer and Taylor were sued personally, they may be personally liable for damages. They are personally at risk. Their vote obligates the city to defend their personal exposure. That does seem to be a rather large problem. Going forward, if Reeve is excluded but Byrnes remains, they are fine on the Brown Act I agree.
bbq December 04, 2013 at 06:37 PM
The cost of the lawsuits are usually covered by insurance.
quercus December 04, 2013 at 06:47 PM
After the deductible is met (probably around $250,000 though it may be higher given the city's poor record) and only if it is determine that the action which prompted the suit is determined to be within the scope of their responsibilities. It isn't within their responsibilities to determine what newspapers people should have access to on public property. They are in a bad position because they allowed the practice for years, only objecting when their critics showed up. Additionally there is a lot of case law on the issue, precedents don't favor their cause. It is just another waste of taxpayer funds. Watch your water rates increase again.
bbq December 04, 2013 at 07:03 PM
I'm certainly no expert, but thought that there were no deductibles for liability insurance, and then they usually have D&O (Directors and Officers) insurance policies that protect them. (???)
Penny Arévalo (Editor) December 04, 2013 at 07:11 PM
Sorry, was out picking up the kids. 1) Cities and public agencies don't have regular corporate insurance policies. They belong to joint authorities. I don't know what the city would have to pay out, but IIRC, at CUSD, it's $100K. 2) The Brown Act is singularly focused on topics that can (litigation, personnel, real estate negotiations, employee negotiations) and cannot (pretty much everything else) be discussed behind closed doors. It doesn't get into (that I can see) matters of legal representation. If Roy for whatever reason can't make a meeting, that doesn't mean the Brown Act is somehow violated if the topic was properly agendized and action reported out. There may be other laws that involve conflict of interest, especially if the city's defense does not match the defense of the individuals named, but that's not a Brown Act concern.
quercus December 04, 2013 at 09:49 PM
Would that be per incident or per annum?
bbq December 04, 2013 at 10:19 PM
Thanks for the insurance clarification.
melissa kaffen December 04, 2013 at 10:46 PM
The cost of a lawsuit pales in comparison to their usurpation of the 1st Amendment & our right to hear both sides of an argument. Their lawless condescension is frankly breathtaking.
shelly December 04, 2013 at 11:57 PM
The Common Sense, Capistrano Dispatch and Capistrano News are sent to our homes and are available all around town.
shelly December 04, 2013 at 11:59 PM
So instead of attempting to work it out the Common Sense goes straight to lawsuit costing the taxpayer more money.
quercus December 05, 2013 at 01:53 AM
Shelly, perhaps you missed the part of Penny's article that explained that a settlement was proposed (that would have avoided a lawsuit) but rejected by the council. No, this lawsuit is all on them. However the council majority doesn't appear to be concerned about another lawsuit. Perhaps they have been involved in so many, they are simply used to them now. Pity though, they always seem to lose. It is a definition of insanity do engage in the same behavior over and over and expect a different outcome.
Patrick O'Brien December 05, 2013 at 11:27 AM
Common Sense and Byrnes coalition seem to love to go to lawsuits. This is TParty silliness that could be expensive. I've had it with these folks. They are tearing apart the community. Common Sense is not what I would call a newspaper, anymore than a person handing out flyers for advertising on a street corner. I don't read their poison. It is the same old same old shouting of slogans and self-pity.
Whiskey Bent December 05, 2013 at 12:09 PM
Patrick isn't Capistrano Valley News a newspaper? They also were banned. Is that ok?
quercus December 05, 2013 at 12:37 PM
And Patrick O'Brien because you don't like what you think they have to say, you are fine with the attempts of the council majority to limit their influence. If you don't read their paper, how do you know it's poison, slogan shouting and self pity?
shelly December 05, 2013 at 12:49 PM
quercus, I did see the part about the settlement offer but the details are not there. The settlement may not be in the best interest of the taxpayers and residents of SJC. The issue I have is that it went straight to the lawyers because of the level of animosity between the two sides in SJC. Any issue seems to go this way instead of acting like intelligent, reasonable adults and working it out before then.
shelly December 05, 2013 at 12:50 PM
quercus, And this way of working out issues costs us, the taxpayers.
quercus December 05, 2013 at 01:00 PM
I believe you haven't been following the story very carefully, Shelly. It didn't go "straight to the lawyers", there was a lot of discussion about it for the last few months. In the end, the council majority decided it would rather go to court than to allow their critics the opportunity to distribute Common Sense on public property. Yes, there will be a cost to the taxpayers, freedom isn't free. Maybe the council majority can negotiate a volume discount on legal fees.
Sam Avacado December 05, 2013 at 07:58 PM
Shelly why would I want to negotiate and settle a lawsuit when I have attorneys I need to keep employed ? I have to keep Hans Lightyear and the other attorneys happy as he is taking the fall for our screwup in closed door meetings when we took a vote behind closed doors.
shelly December 06, 2013 at 05:31 PM
quercus, It does not ban the distribution of any paper on public property. It bans the racks. If you choose to pass out the paper than do so. These papers are distributed to all residents through the mail or delivered to our houses, right? So how is anyone impeding any paper.
Whiskey Bent December 06, 2013 at 08:34 PM
Actually shelly I thought the city attorney threatened criminal prosecution if CCS just left their papers anywhere on any city property, racks or no racks.
Beve Semerwohld December 06, 2013 at 09:14 PM
Shelly I was told it bans the newspaper anywhere. If it is left anywhere, I have to go pick it up. That is my assignment and I am sticking to it as a professional volunteer. Have you seen me with my cute bicycle helmet and my flashing red light on the back of my bicycle. I like to pretend sometimes that I have a siren and do the siren growl under my breath. Oh well, just thought I would tell you that is my volunteer assignment, picking up CCS because you can't just leave it there you know.
quercus December 06, 2013 at 10:15 PM
There is an obvious question that is being skirted here. Why are racks a problem? The problem must be real and meaningful to be valid.
Sunshine December 07, 2013 at 04:23 PM
It doesn't take a brain surgeon to figure out the motives behind the timing of the egregious banning of newspapers so soon after the Community Common Sense placement of their racks.

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