an action that will no doubt have a chilling effect on those seeking to
keep California government and school districts operating in the
sunshine, an Orange County school district board has successfully
convinced a California appeals court that it not only has the right to
shut down and cover-up dissent but also financially punish those
seeking to expose the illegal actions.
a Carmichael-based non-profit dedicated to helping Californians and
California journalists keep their government operating out in the open,
sued the Orange Unified School District when it edited out a school board member’s public
criticism of the panel’s decision to demote one of the district’s high
school principals from a DVD
recording of the meeting.
The board also acted to formally censure the
offending board member, a violation of its own bylaws.
and its then president, Richard McKee, warned the board that its
actions violated the state’s Brown Act which, among other things,
prohibits the district from discouraging the expressions of its
publicly elected governing board members.
CalAware’s general counsel, Terry Francke, takes the story from here:
the censure action, McKee and CalAware petitioned the court for an
order overturning the censure and for a declaration that the editing of
the recording of the meeting was unlawful. It sought no money damages
or other remedies, and was filed by a trial lawyer on the CalAware
board who took the case pro bono publico-waiving any fees if the action
Unified (in response) filed an anti-SLAPP (strategic lawsuit against
public participation) motion, claiming that McKee and CalAware were
trying to stifle the district’s right to free speech. Such a motion
asks dismissal of any lawsuit that attempts to chill the valid exercise
of free speech in matters of public interest. If the court grants the
motion, not only is the case against the speaker tossed out of court,
but the plaintiff seeking to stop the speech must pay the speaker’s
The trial judge liked-and promptly
granted-the district’s anti-SLAPP motion, saying the OUSD Board was
right to censure the minority member’s criticism, calling it “boorish,”
and concluded that the alteration of the meeting (DVD) to remove the
critical comments was protected, because it represented the right of
the district to control its own speech.
the ruling would be overturned under Proposition 59, the Brown Act and
the First Amendment, McKee and CalAware appealed, pleading that the
public had a right to hear all the comments made by its elected
representatives at an open meeting. But the Fourth Appellate District
sitting in Santa Ana agreed with the trial court that the district’s
speech rights trumped the dissident trustee’s, ruling that McKee and
CalAware were responsible for OUSD’s attorney fees. Then, after the
California Supreme Court denied review, reality set in.
the fact that the Brown Act itself protects plaintiffs suing to enforce
open government from such a fee order unless the action is judged
“clearly frivolous and totally lacking in merit” (a finding not made by
either of these courts), McKee and CalAware are on the hook (for the
district’s attorneys fees).
Francke says that in
the wake of the decision McKee’s wages have been garnished and a lien
has been placed upon his home to help pay the $86,000 he owes the
Orange district. The 34-year Pasadena City College chemistry professor
and opens meetings and government activist says he has taken out a
second trust deed and is currently dismantling his retirement accounts
to come up with more cash. CalAware, a small nonprofit, has put in
$6,000 but cannot contribute much more due to its small size and
Francke says he is outraged by the decision.
despite the California Constitution and the Brown Act, the courts have
granted public agencies the right to punish expressions of concern made
by their own officers to the public they serve, and to censor any
information from its publications that the agency doesn’t want the
people to see or hear,” Francke said. “These are rights usually
associated with an authoritarian regime, not a democratic republic.
More information on the
case can be had by clicking on the link above or e-mailing Francke at
Jeff Mitchell is a longtime California journalist and political observer.