City Wants to SLAPP Attorney

City seeks to dismiss lawyer’s First Amendment lawsuit against
Morgan Hill by claiming city leaders’ free speech rights were
violated
Local attorney Bruce Tichinin’s lawsuit against the city is a meritless claim intended to freeze the First Amendment rights of city officials and interfere with their ability to carry out their duties, lawyers for the city say.

“There were violations of Mr. Tewes rights of privacy and the city council tried to figure out how and why that happened,” said Santa Cruz attorney Timothy J. Schmal. “A legislative body trying to do their job, trying to represent the interest of their city, is legally privileged speech. … What Mr. Tichinin did isn’t legally privileged.”

Tichinin filed a suit in January that claims city council members violated his First Amendment rights when they publicly criticized him and suggested he should be investigated for criminal wrongdoing for placing City Manager Ed Tewes under surveillance in 2004. Tichinin was hoping to prove that Tewes was having an affair with then city attorney Helene Leichter.

In a recent court filing, Tewes said he was “extremely distressed” by the surveillance, which occurred while he was at a conference in Huntington Beach.

“In fact,” Tewes said. “I feared for my family … and was stressed, concerned and worried and anxious over the uncertainty of what was happening.”

Tichinin’s claim arises from the subsequent city council investigation. After he admitted that he arranged the surveillance, the city council asked Tichinin to resign from the city’s urban limit line task force and threatened to report him to the Santa Clara County District Attorney’s office and the state bar.

Tichinin remained on the task force and his activities were not reported to either agency, but he claims the council’s July 2004 action, 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 actions against him were retribution for investigating Tewes, whom he believed used his influence over Leichter to encourage her to torpedo a residential development proposal Tichinin made, and for suing the city over the controversial Bob Lynch Ford store in January 2004. Tichinin has estimated his losses at about $2 million.

“In civil rights stuff, you’re talking about an accumulation of events, you can’t surgically separate one motive from another,” Tichinin’s attorney, Steven Fink said when the suit was filed. “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.”

Attorneys for Morgan Hill have labeled Tichinin’s claim as a strategic lawsuit against public participation, or SLAPP, a legal term that describes lawsuits filed to solely to prevent defendants from exercising their free speech rights. In his motion asking a Santa Clara County Superior Court judge to dismiss the claim, Schmal argues that the city’s acts were made in “furtherance of the city’s right of free speech in connection with a public issue,” and that any claim to free speech made by Tichinin in relation to the surveillance is outweighed by Tewes’s rights to privacy.

Schmal said that it can be difficult to win a SLAPP ruling because such a ruling puts an end to any further litigation and puts the losing side on the hook for all attorneys’ fees and costs. He said the city will prevail on the merits of the case if the anti-SLAPP motion fails.

“I am confident that the city will eventually prevail in the lawsuit, either by the anti-SLAPP motion or by other means,” he said, “even if, ultimately, full-blown trial is required.”

The roots of the case are in a proposal Tichinin and developer Howard Vierra made to the city to build new homes at the base of El Toro Mountain.  

The city rejected the proposal on the advice of Leichter, who said that the site was outside of a voter-approved growth boundary. That boundary later survived a court challenge.

Tichinin and Hedy Chang, a city council member at the time, believed Leichter argued against the proposal because she was under the influence of Tewes. They 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 the 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. Tewes later observed the man following him with a video camera. Tichinin has said the investigator performed those actions without his knowledge or instruction.

Fink said Friday that the city filed the anti-SLAPP motion to avoid turning over evidence and arguing the case on its merits.

“If there’s not room in this town for both of us, and we’re going to have a shoot out, I don’t want to have a gun with one bullet when you have six,” Fink said. “We’re glad to hear the case on its merits. We’re thrilled.”