The case that has rattled Morgan Hill for more than five years
will march on to the county’s trial court.
The case that has rattled Morgan Hill for more than five years will march on to the county’s trial court.
The California Supreme Court rejected the city’s petition to review the appeals decision in Tichinin v. the City of Morgan Hill. So it’s on to the trial court, unless the city and local land use attorney Bruce Tichinin, the centerpiece of the scandal that erupted in 2004, can reach a settlement.
City Attorney Danny Wan and Tichinin will meet Tuesday to discuss the case. Both said settling was an option.
In 2004, Tichinin hired a private detective to follow City Manager Ed Tewes to prove an alleged affair between Tewes and then-city attorney Helene Leichter. Tichinin believed this affair influenced Leichter’s decisions regarding Tichinin’s clients. Tewes and Leichter denied the affair. The Morgan Hill City Council denounced Tichinin for his actions and asked him to step down from a city committee.
Tichinin claims the council actions defamed him and harmed his business. Tichinin says he has every right to use any legal means necessary to build a case, and that private investigations are legal means.
Tichinin filed the lawsuit in January 2006. The trial court dismissed the lawsuit in December 2006. Tichinin appealed. In September 2009, the 6th District Court of Appeals said that Tichinin should have a chance to present his case to a jury.
The city responded with a petition to the California Supreme Court in November. Tichinin and law professionals said then that the appeals court’s position was tightly written and the supreme court was unlikely to take up the case.
The supreme court voted 5-2 Wednesday to not take up the case, according to court documents.
The state court also rejected the League of California Cities’ and California State Association of Counties’ requests to seal the court documents so that any ruling on the case wouldn’t set precedence for governments statewide, Wan said.
Wan said the case “has implications for all cities.
“The worry is that, does this mean that city councils and boards of supervisors cannot opine on what they think is proper behavior or give their opinion as to what is good or bad, even if action does not have any punitive action to it?” Wan said. “Certain large cities issue resolutions expressing their disapproval over a lot of things.”
Both parties claim that if their side wins, it would be a win for the First Amendment. City officials argue they have free speech rights to refute allegations. But Tichinin says it’s within his rights as a citizen to look into suspected misconduct, and that the city’s refuting caused him significant distress professionally and personally.
Tichinin had alleged that Tewes opposed his client’s development project application before the city council because Tichinin had spoken out against The Ford Store of Morgan Hill, which the city had backed.
Through spying, Tichinin hoped to collect evidence of the rumored affair in order to disqualify Leichter from advising the council on the development project.
Tichinin didn’t find any evidence after a bungled spying attempt at a Huntington Beach hotel in February 2004 that involved two cups of hot chocolate being ordered to Tewes’ room by unlicensed private investigator Brian Carey. Tewes became suspicious that he was being followed. Tewes made a lot of noise as he exited his room, and then hid in a hallway alcove and waited, assuming he would be followed. Moments later Carey walked by with a video camera, which he shut off upon seeing Tewes.
Carey later admitted to ordering the hot chocolate.
Wan noted that the city’s resolution directed no steps against Tichinin. It expressed disapproval of Tichinin’s unwarranted and covert surveillance of the city manager, Wan said.
Leichter was awarded $215,000 in salary, benefits and compensation for “alleged physical injury or sickness” in a settlement agreement when she resigned in April 2005. She recently resigned from her post as Santa Clara’s city attorney and received a $250,000 severance package there, according to media reports.
Then-city council member Hedy Chang, who brought up the alleged affair at an open council meeting in 2003, retained Tichinin as a lawyer for fear of a lawsuit from Leichter. She did not run for a third term on the council in November 2004 and now sits on the state’s medical board.