Metropolitan News-Enterprise


Monday, September 8, 2008


Page 1


Court Holds Board Member’s Suit Against School District a SLAPP




A suit by a school board member against his district, claiming it violated his civil rights by censuring him and editing his comments out of a tape it prepared for cable television, was properly stricken under the anti-SLAPP law, the Fourth District Court of Appeal ruled yesterday.

Div. Three Thursday affirmed Orange Superior Court Judge Clay M. Smith’s order rejecting the suit by the open-government group Californians Aware and Orange Unified School District board member Steve Rocco. Justice William Bedsworth wrote for the court in an unpublished opinion.

Rocco, who filed a pleading seeking mandamus, injunctive, and declaratory relief, has been described in news reports as “colorful,” “controversial,” and “eccentric.” He is known for attending meetings dressed in all black, including a knit cap, and for refusing to attend closed sessions.

His election drew international publicity because he did not campaign, respond to news media inquiries, or engage in any apparent activity associated with the election beyond filing his papers. His victory was generally attributed to the fact that he ran as “School Teacher/Writer,” while his opponent, a local PTA president, ran as “Orange County Park Ranger.”

Boundaries Redrawn

Rocco, unable to run for re-election to the board because his colleagues redrew the boundaries of the “trustee area” he represents, excluding his residence, is now running for the Santa Ana City Council, on a pledge to fight “the Mexican Mafia,” their “Caucasian Puppetmasters,” and “Judicial Miscreants,” the Orange County Register recently reported.

His action against the district stemmed from a 2006 meeting at which—during the comment period at the end of the meeting—he discussed the decision, made earlier in a closed session, to hire a new principal for Villa Park High School. He said he would have voted to fire the old principal, not merely reassign him to a continuation school where the students would “be suffering with the results of what happened at Villa Park High School.”

He went on to complain about “nepotism and cronyism in the district,” much to the consternation of the other board members. When the board sent out tapes of the meeting for cable broadcast, a standard practice, the comments were missing.

The superintendent subsequently explained that the comments were edited out because they were defamatory. At the same meeting, the board scheduled an agenda item for a future session, calling for consideration of Rocco’s censure.

Censure Approved

At the later meeting, a resolution was approved, calling for censure on the ground that Rocco’s discussion of the principal’s reassignment invaded the principal’s privacy and violated the Ralph M. Brown Act because it involved a personnel matter that was heard in closed session.

In his action against the district, Rocco alleged that there was no Brown Act violation because discussion of personnel matters in closed session is merely permitted, not required; that his comments were protected by absolute privilege since they were part of an official proceeding, that his free speech rights under the state and federal constitutions, as well as the board’s bylaws, were violated.

Smith granted the district’s anti-SLAPP motion and awarded $37,000 in attorney fees.

Bedsworth said the trial judge was correct. The justice rejected the argument that the case falls under the “public interest” exception set out in Code of Civil Procedure Sec. 425.17(b). The provision renders the anti-SLAPP statute inapplicable to an action “brought solely in the public interest or for the benefit of the general public,” if certain conditions are met.

Bedsworth reasoned that the action was brought to benefit Rocco—whose “interest herein is inherently personal”—not the public. 

Free Speech Rights

Rocco cannot prevail in the action, he went on to explain, because the district enjoys the same free speech rights as Rocco. Under the board’s rules, Bedsworth elaborated, censure is an expression of the board’s opinion, not a punishment of dissent, and did not prevent Rocco from expressing his views.

Attorneys on appeal were Dennis A. Winston of Moskowitz, Brestoff, Winston & Blinderman for CalAware and Rocco, and Spencer E. Covert and Michael T. Travis of Parker & Covert for the district.

Amicus briefs were filed on behalf of the California First Amendment Coalition, siding with the plaintiffs, and the California School Boards Association and Educational Legal Alliance for the district. CFAC sought to argue that the anti-SLAPP statute cannot be applied to a Brown Act or First Amendment claim, but Bedsworth noted that the parties had not raised the issue in the trial court or their opening briefs, which, under California law, precludes amici from raising it.

The case is Californians Aware v. Orange Unified School District, G038499.


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