Attorney says order is ‘good sign’
Morgan Hill – A judge’s decision in the First Amendment lawsuit filed against the city by Bruce Tichinin likely equals a delay in the city’s effort to have the suit tossed out.
“This is a good sign for our case,” Tichinin’s attorney, Steven Fink, said. “They threw their first-line arguments against us and didn’t win.”
Tichinin filed a suit in January that claims Morgan Hill city council members violated his First Amendment rights when they publicly criticized him and suggested he should be investigated for criminal wrongdoing for placing city manager Ed Tewes under surveillance in 2004. Tichinin was hoping to prove that Tewes was having an affair with then-city attorney Helene Leichter.
Attorneys for Morgan Hill have labeled Tichinin’s claim as a strategic lawsuit against public participation, or SLAPP, a legal term that describes lawsuits filed solely to prevent defendants from exercising their free speech rights.
That motion is supposed to be heard in June, but this week, Santa Clara County Superior Court Judge William J. Elfving approved Fink’s request to take evidence from each council member at the time of the surveillance and anyone who participated in the city’s subsequent investigation.
Fink indicated that will delay the June hearing. Santa Cruz attorney Timothy J. Schmal, who is representing Morgan Hill, disagreed with Fink on the importance of Elfving’s order, but agreed that the case will plod along.
“There are weird things involved in this case. It’s a federal case in state court. It’s very confusing,” Schmal said. “The evidentiary issues will be complex. Which law governs, state or federal, is a cloudy issue as well. This case, as it’s presently postured, is a real head-scratcher.”
Tichinin originally filed a slander and defamation suit last summer, but Fink amended the claim in January and presented it as a federal civil rights matter. City officials believe they were simply doing their job when they investigated the surveillance of Tewes, who was followed to a conference in Huntington Beach.
In his motion asking Elfving to dismiss the claim, Schmal argues that the city’s acts were made in “furtherance of the city’s right of free speech in connection with a public issue,” and that any claim to free speech made by Tichinin in relation to the surveillance is outweighed by Tewes’s rights to privacy.
Tichinin believed that if he could prove Tewes and Leichter were having an affair, the city would approve a development project, proposed by Tichinin and his partners, that Leichter has counseled against. There has never been any evidence that Tewes and Leichter were involved.
