Issue
In Levy v. City of Santa Monica, (2004 Daily Journal DAR 588 Cal. App. 2 Dist., January 20, 2004) the California Court of Appeal, Second Appellate District, addressed the issue of whether a trial court erred in finding that a city council member’s inquiry to the city planning department on behalf of a constituent was not protected by the council member’s First Amendment rights.
Facts
David and Beth Levy (Homeowners) built a large elevated playhouse in their backyard. A neighbor of the Homeowners complained about the playhouse to the building and safety department of the City of Santa Monica (City) and also to her City council representative and mayor, Ken Genser. Councilman Genser sent two e-mails on the neighbor’s behalf to the City’s director of planning and community development and the City Manager to inquire whether the Homeowners needed a permit to build the playhouse. The building inspector subsequently sent the Homeowners a “Notice of Violation” directing them to remove or modify the playhouse.
The Homeowners filed a lawsuit against the City and Councilman Genser seeking, among other things, a permanent injunction prohibiting City Council members from engaging in acts designed to influence the City’s administrative staff through direct communications with City staff, other than the City Manager, in matters involving zoning enforcement. The City and Councilman Genser asserted the communications were constitutionally protected speech and sought to strike the lawsuit through use of a Strategic Lawsuit Against Public Participation (SLAPP), which allows a defendant to file a motion to strike a lawsuit that interferes with his or her constitutional right of petition or free speech. The trial court found that SLAPP was not applicable and refused to strike the lawsuit.
Appellate Court Decision
The Court of Appeal found that the City’s and Councilman Genser’s activities are protected under the First Amendment. Section 6.10 of the City Charter provides that, except for the purpose of inquiry, the City Council and its members must deal with the City’s administrative service solely through the City Manager and further prohibits City Council members from giving orders to the subordinates of the City Manager. The Homeowners asserted that Councilman Genser violated Section 6.10 by drawing attention to the neighbor’s position which they claim amounted to advocacy. However, the Court noted that under this definition of advocacy, “virtually all inquiries would be suspect.” The Court reasoned that if it adopted the Homeowners’ position, council members might refrain from making inquiries for fear of being sued or held in contempt.The Court determined that the neighbor’s act of contacting Councilman Genser and his act of contacting the City’s planning staff constitute petitions for grievances against the government and are protected by the First Amendment. The Court concluded that the purpose of Section 6.10 is not to prohibit protected speech, but to define the lines within city government.
The Court noted that under the First Amendment, legislators are given wide latitude to express their views and there are no stricter free speech standards placed on legislators than on the general public. Therefore, any law that restricts a legislator’s freedom of speech must be narrowly construed. The Court concluded that enjoining City Council members from advocating a constituent’s position would amount to an “overly broad restraint on speech which would inhibit constitutionally protected activity.”
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