Metropolitan News-Enterprise


Thursday, November 13, 2008


Page 3


SLAPP Ruling Against School Board Member Left Standing




The California Supreme Court yesterday declined to review a ruling that barred a school board member from suing his district, which he claimed violated his civil rights by censuring him and editing his comments out of a tape it prepared for cable television.

The justices, at their weekly conference in San Francisco, unanimously let stand the Fourth District  Court of Appeal’s ruling,  in Californians Aware v. Orange Unified School District, G038499, that Steve Rocco’s suit against the Orange Unified School District was properly stricken under the anti-SLAPP law.

Div. Three, in its Sept. 4 ruling, affirmed Orange Superior Court Judge Clay M. Smith’s ruling that Rocco and his co-plaintiff, the open-government group Californians Aware, did not show a likelihood of prevailing and that their suit implicated the district’s free speech rights.

Justice William Bedsworth wrote for the court in an unpublished opinion.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.”

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, ran for the Santa Ana City Council on a pledge to fight “the Mexican Mafia,” their “Caucasian Puppetmasters,” and “Judicial Miscreants.” He was defeated last Tuesday.

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.

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. 

Rocco could not 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.

In other conference action, the court agreed to decide whether a trust beneficiary’s demand for arbitration of a dispute with the trustee constitutes a “contest” within the meaning of the trust’s no-contest clause. Div. Six of this district’s Court of Appeal, in an unpublished opinion in Greenelsh v. Johnson, B198228, ruled in favor of the trustee, saying the demand for arbitration was a direct attack on the settlor’s testamentary plan.

The court also held that the beneficiary’s withdrawal of the arbitration demand prior to a ruling on the trustee’s petition to have the demand ruled a contest did not divest the court of jurisdiction, so the beneficiary could not avoid the consequences of violating the no-contest clause.


Copyright 2008, Metropolitan News Company