In 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.
Californians Aware, 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.
CalAware, 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:
After 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 was unsuccessful.
Orange 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 attorney fees.
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.
Confident that 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.
Despite 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 membership.
Francke says he is outraged by the decision.
...Here, 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 [email protected]
Jeff Mitchell is a longtime California journalist and political observer.