An Individual May Sue City For Unlawful Retaliation If City Passes A Resolution Condemning Him For Exercising His Constitutional Rights

In Tichinin v. City of Morgan Hill, (— Cal.Rptr.3d —-, Cal.App. 6 Dist., September 21, 2009), a California Court of Appeal considered whether an individual who conducted business before a city council, and then investigated city officials when decisions went against him, could sue the city for unlawful retaliation for exercising his constitutional rights when he was subsequently condemned in a city resolution.

The court ruled that because the individual had shown a likelihood of success by 1) demonstrating his conduct was constitutionally protected, 2) that he had been injured by the city’s action, and 3) that the city’s action resulted from his constitutionally protected activity, his lawsuit did not violate California’s anti-SLAPP law and could proceed.

Facts

In 2002 and 2003, Bruce Tichinin, an attorney, represented several clients with business before the City Council of the City of Morgan Hill (“City”). In the process, he had meetings with City Manager J. Edward Tewes and City Attorney Helene Leichter. At first, Tichinin believed that City Attorney Leichter was sympathetic to his causes, but City Attorney Leichter eventually took a position against Tichinin’s client’s interest during the city council proceedings.

Tichinin suspected that City Attorney Leichter was being unduly influenced by City Manager Tewes, because Leichter and Tewes were rumored to be having an extramarital affair, which they both denied. Tichinin then hired a private investigator to follow and monitor City Manager Tewes for evidence of an affair with City Attorney Leichter that may have constituted a conflict of interest, and may have improperly influenced Leichter’s comments to the city council. Tewes learned of the investigator and said the surveillance made him fear for his own and his family’s safety. The City responded by initiating an investigation into who was following City Manager Tewes. During that investigation, Tichinin denied he was involved in the surveillance. Tichinin later acknowledged that he was in fact behind the surveillance of Tewes, apologized for having lied about it, and explained that he feared retaliation from the City if his involvement were known, or alternatively, that if he admitted that he was behind the investigation, he would be divulging attorney-client privileges.

In July 2004, the city council adopted a resolution condemning Tichinin for his surveillance activities, declaring them unwarranted and unjustified, deploring his false statements, and asking for his resignation from an advisory City subcommittee for which he was a member.

Tichinin filed suit against the City under 42 United States Code section 1983, alleging that the City had unlawfully retaliated against him for exercising his constitutional rights. The City answered with an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion under California Code of Civil Procedure Section 425.16 to strike the action. The trial court granted the anti-SLAPP motion, struck Tichinin’s complaint, and awarded attorney’s fees to the City. Tichinin appealed.

Decision

Ruling on an anti-SLAPP motion requires a two-step process. First, the court decides whether the challenged cause of action arises from protected activity. If so, the court then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.

The court found that Tichinin’s conduct was constitutionally protected. Citing Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 932, the court found that the protection of First Amendment rights encompass a “breathing space” necessary for the effective exercise of those rights. Here, the court found that Tichinin’s surveillance of Tewes to investigate a potential conflict of interest that could have affected his success in petitioning the City, fell within that “breathing space.” Because his investigation conceivably could have revealed evidence of a rumored inappropriate relationship that could have affected City decisions, it was necessarily incidental to his protected petitioning conduct, the court said. Further, the right to free speech has long been held to include non-expressive conduct that intrinsically facilitates one’s ability to exercise the right to free speech. Tichinin’s investigation was such conduct, the court found.

For his retaliation claim to proceed, Tichinin further needed to show that the City’s actions caused injuries that would likely chill an ordinary person from further engaging in the protected context. Tichinin alleged the City’s action induced fear of criminal prosecution, State Bar discipline, shame, outrage, emotional distress and caused a loss of professional reputation, income, and good will. Those alleged injuries, if believed, were sufficient to deter an ordinary person from continuing to exercise the protected rights, the court found.

As such, the court ruled that the evidence clearly showed that the City’s adverse action against Tichinin was a direct result of his hiring the investigator, a protected act because it fell within the “breathing space” of Tichinin’s rights to petition and free speech. In condemning Tichinin, the City had directly and intentionally punished lawful and protected conduct in order to deter similar conduct in the future. Tichinin satisfied all the burdens for establishing that his lawsuit was sufficiently viable to survive an anti-SLAPP motion and proceed forward.

The trial court’s judgment was reversed.

Questions

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Mona G. Ebrahimi | 916.321.4500