City Looks to SLAPP Tichinin

Lawyers seek to dismiss suit by claiming city leaders’ free
speech rights were violated
Morgan Hill – Local attorney Bruce Tichinin’s lawsuit against the city is a meritless claim intended to freeze the First Amendment rights of city officials and interfere with their ability to carry out their duties, lawyers for the city say. 

“There were violations of Mr. Tewes rights of privacy and the city council tried to figure out how and why that happened,” said Santa Cruz attorney Timothy J. Schmal. “A legislative body trying to do their job, trying to represent the interest of their city, is legally privileged speech. … What Mr. Tichinin did isn’t legally privileged.”

Tichinin filed a suit in January that claims 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.

In a recent court filing, Tewes said he was “extremely distressed” by the surveillance, which occurred while he was at a conference in Huntington Beach.

“In fact,” Tewes said. “I feared for my family … and was stressed, concerned and worried and anxious over the uncertainty of what was happening.”

Tichinin’s claim arises from the subsequent city council investigation. After he admitted that he arranged the surveillance, the city council asked Tichinin to resign from the city’s urban limit line task force and threatened to report him to the Santa Clara County District Attorney’s office and the state bar.

Tichinin remained on the task force and his activities were not reported to either agency, but he claims the council’s July 2004 action, along with comments council members and Mayor Dennis Kennedy made in public and to the media, caused him substantial shame and damaged him professionally. 

His suit says the actions against him were retribution for investigating Tewes, whom he believed used his influence over Leichter to encourage her to torpedo a residential development proposal Tichinin made, and for suing the city over the controversial Bob Lynch Ford store in January 2004. Tichinin has estimated his losses at about $2 million.

“In civil rights stuff, you’re talking about a accumulation of events, you can’t surgically separate one motive from another,” Tichinin’s attorney, Steven Fink said when the suit was filed. “The basic theory is that Bruce was punished for serving as a lawyer or advocate for himself or his clients, which is the right to petition, and that Bruce is being punished for his speech.”

Attorneys for Morgan Hill have labeled Tichinin’s claim as a strategic lawsuit against public participation, or SLAPP, a legal term of art that describes lawsuits filed to solely to prevent defendants from exercising their free speech rights. In his motion asking a Santa Clara County Superior Court judge 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.

The roots of the case are in a proposal Tichinin and developer Howard Vierra made to the city to build new homes at the base of El Toro Mountain.  

The city rejected the proposal on the advice of Leichter, who said that the site was outside of a voter-approved growth boundary. That boundary later survived a court challenge.

Tichinin and Hedy Chang, a city council member at the time, believed Leichter argued against the proposal because she was under the influence of Tewes. They alleged that Tewes and Leichter, both married, were having an affair. Both parties denied the affair and there has been no evidence to support the allegation.

But according to the city council investigation, Tichinin believed he could win support for his proposal if he proved the affair. And in February 2004, he had Tewes followed to the conference in Huntington Beach, at a time when Leichter was also out of town.

The investigator did not see Leichter with Tewes, and council members believe the investigator broke into Tewes’ hotel room to create the appearance that he was not alone, going so far as to order hot chocolate for two from room service. Tewes later observed the man following him with a video camera. Tichinin has said the investigator performed those actions without his knowledge or instruction.

What’s a SLAPP?

– Generally, a “SLAPP,” or strategic lawsuit against public participation, is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.

Source: The First Amendment Project, a nonprofit, public interest law firm and advocacy organization dedicated to protecting and promoting

freedom of information, expression, and petition.