Recently, the California Sixth District Court of Appeal ruled in
my favor in Tichinin v. City of Morgan Hill.
Dear Editor,
Recently, the California Sixth District Court of Appeal ruled in my favor in Tichinin v. City of Morgan Hill. The court held that the free speech and petition clauses of the U. S. Constitution guarantee every citizen the right to investigate an apparent conflict of interest in government, and prohibit the government officials being investigated from using the might and authority of government to retaliate in an attempt to suppress the investigation.
The 45-page opinion of the court is certified for publication in the official reports of cases – a status given to less than one in 10 cases – which means that it is a precedent of sufficient importance to be designated as the law for all of California, not just the parties in the case.
What happened here? Well, panicked at my investigation, the city attempted to destroy me as a legitimate community figure.
Court-ordered release of city records has revealed that as part of its illegal campaign of intimidation and retaliation, the city council publicly threatened to request the District Attorney to prosecute me criminally (for never-specified crimes) and to request the State Bar to take disciplinary action against my license to practice law (for never-specified violations) – even though it secretly knew the District Attorney’s office had informed the city manager that I had committed no crime, and that its own attorneys had told it I had violated no rules of the State Bar.
Predictably, this intentional governmental misconduct nearly ruined my reputation and my livelihood. But, the Court of Appeal now has officially cleared my name.
It confirmed, as I have maintained all along, that, far from violating the law, I was doing quite the opposite – carrying out a mandatory legal duty as a licensed professional. It stated:
“Indeed, as Tichinin correctly notes, an attorney has a duty to investigate the facts underlying a client’s claims and can be sanctioned for failing to do so.”
“(W)e consider it obvious that … penalizing prelitigation investigation could substantially interfere with … the effective exercise of one’s (constitutional) right to petition. Indeed, we can think of few better ways to burden that right than to make it difficult and perhaps legally risky for people to investigate and find evidence to support potential claims.”
The court specifically rejected the city’s defense that its own right of free speech and the privacy of the city manager protected its resolution condemning me.
“Here, however, penal and civil statutes and tort law provide ample protection for the privacy of public officials. Thus, we doubt, and the record certainly does not establish, that the city’s condemnation of Tichinin’s conduct was reasonably necessary to protect privacy rights and thus justified the resulting chilling effect on similar future conduct.”
Absent a successful city request to the Supreme Court for review, the case will now proceed to trial, where, as the city will be quick to point out, I am not guaranteed a recovery.
When the city council adopted the resolution publicly condemning me for the investigation, the now-Mayor of Morgan Hill, Steven Tate, said he “d(id)n’t care what the law is” when my attorney pointed out that I had a legal duty as a lawyer to conduct the investigation. Mr. Tate later said my claim that the investigation was an exercise of the constitutional rights of free speech and petition was just “legal mumbo jumbo.”
Bruce Tichinin, Morgan Hill
Who does my agent represent?
Dear Editor,
It is my understanding that under the Law of Agency the agent is bound to represent the best interest of the principle (the employer).
We, the citizens of Morgan Hill, have appointed agents to represent our interest via the Morgan Hill city government. We have engaged legal council, policy specialists and managers to serve and protect us first.
I understand that the city lawyer has an obligation to first protect the public’s liability interests over the interest of contractors. Our representatives pledge to provide governmental services without advocacy for any race, religion, or commercial interest.
Our city representatives created a “share-the-profit” relationship with a corporation and committed our assets (buildings, equipment and property). Our agents, it appears, blatantly breached the public goal of separation of church and state and they probably have significantly breached the concept of client/principal. The goal is now not service to the public based upon public policy goals but instead is now a faith-based initiative and the corporate goal of profit.
Our legal counsel is advising their principal (us and our children) to sign a Hold Harmless document. Our agent demands that we sign a contract that waives all our protections for the benefit of a contracted service provider (the Young Men’s Christian Association. – “the leader.”)
Several years ago the “the leader” invited members of the city council to serve on the board of the Mount Madonna branch of the YMCA. It appears that from this relationship, and the completion of our Recreation Center, a no-bid contract was executed to form a share-the-profit entity. Our agents empowered the YMCA to charge you and me to use our buildings and equipment.
The Morgan Hill Times reported that the YMCA hosted an expensive dinner party in San Jose. Our agents were invited and praised for executing the YMCA contract. I also read that the YMCA is hosting a party at the Pebble Beach Golf and Country Club. This event features a $250 lunch and expensive golf. If any of our agents (even those hired via the YMCA contract) attended these events as guests then this, in my opinion, constitutes a contract kickback. This would be a negation of the civil service mandate to be at “arms length.”
We need to ask, “Who do our civil servants represent?”
Staten M. Johnston, Morgan Hill
