Local lawyer refiles lawsuit against city
Morgan Hill – It’s the scandal the city can’t shake.
Two years after Morgan Hill lawyer Bruce Tichinin had Ed Tewes followed in a failed attempt to prove the city manager was having an affair, Tichinin has refiled his lawsuit against the city that claims council members violated his First Amendment rights when they publicly criticized him and suggested he should be investigated for criminal wrongdoing.
“We were forced to do this,” Tichinin said this week. “The city was absolutely uncooperative in our attempt to settle with them.”
Tichinin first filed suit last July. Since then, his complaint has evolved from a simple defamation claim to a complex argument of constitutional law and charges that he was subjected to personal and professional harm by city leaders, who deprived him of free speech and the right to petition.
A settlement is still possible, but a lawyer for Tichinin said the case, which encompasses everything from charges of adultery and political deceit to the city’s environmental and growth policies, is headed to trial. San Jose attorney Steven Fink wouldn’t say why settlement talks failed, but said money was not the reason. Originally, Tichinin had said he would drop the suit if the city offered a formal apology and estimated his losses at $2 million.
“I’m never going to give up talking about a settlement,” Fink said “If you can’t come to a reasonable settlement then what you do is go to court and try the case.”
Tichinin’s claim arises from a city council investigation into the lawyer’s surveillance of Tewes and the July 2004 council decision to try to boot Tichinin from the city’s urban limit line task force and report him to the Santa Clara County District Attorney’s office and the state bar.
Tichinin claims those actions, along with comments council members and Mayor Dennis Kennedy made in public and to the media, caused him substantial shame and damaged him professionally. His suit says the action was taken to punish him for investigating Tewes, whom he believed illegally torpedoed a residential development proposal Tichinin made, and for suing the city over the controversial Bob Lynch Ford store in January 2004.
“In civil rights stuff, you’re talking about a accumulation of events, you can’t surgically separate one motive from another,” Fink said. “The basic theory is that Bruce was punished for serving as a lawyer or advocate for himself or his clients, which is the right to petition, and that Bruce is being punished for his speech.”
Interim city attorney Dan Siegel declined to comment on the suit, though the city has been served. Kennedy said “I am convinced there is no merit to his claim and the city will ultimately prevail.”
The roots of Tichinin’s case are in a proposal he made to the city to develop new homes at the base of El Toro Mountain.
The city rejected the proposal on the advice of then-city attorney Helene Leichter, who said that the site was outside of a voter-approved growth boundary. That boundary later survived a court challenge.
Tichinin believed Leichter argued against the proposal because she was under the influence of Tewes.
Tichinin and Chang alleged that Tewes and Leichter, both married, were having an affair. Both parties denied the affair and there has been no evidence to support the allegation.
But according to the city council investigation, Tichinin believed he could win support for his proposal if he proved the affair. And in February 2004, he had Tewes followed to a conference in Huntington Beach, at a time when Leichter was also out of town.
The investigator did not see Leichter with Tewes, and council members believe the investigator broke into Tewes’ hotel room to create the appearance that he was not alone, going so far as to order hot chocolate for two from room service.
Fink said his client’s activity may have been distasteful, but argued Tichinin was within his rights.
“Geraldo Rivera has been unsavory to me for 30 years, but I sure can’t sue him for what he does unless he hits me,” Fink said. “You don’t like what he did, but it wasn’t illegal. It was his constitutional right.”
Leichter resigned and received a settlement agreed not to sue the city. No action was taken against Tichinin by either the district attorney or the state bar, but he claims to have lost substantial business in the last year and a half. Fink said they have not yet determined an appropriate level of damages.
“We’ve categorized them but we haven’t added them up,” he said. How do you add up shame, humiliation, defamation? There’s no mathematical formula.”
