Tuesday, September 22, 2009
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C.A.: Surveillance of Public Officials Protected Activity
Attorney Investigation of Suspected Affair Was Related To Potential Claim — Panel
By Sherri M. Okamoto, Staff Writer
A lawyer who hired a private investigator to determine whether a city attorney was engaged in an inappropriate romantic relationship with the city manager and was later rebuked by the City Council for his actions should not have had his claim of retaliation thrown out as a SLAPP, the Sixth District Court of Appeal said yesterday.
The panel concluded that Bruce Tichinin demonstrated a sufficient likelihood of prevailing on his 42 U.S.C. § 1983 action against the city of Morgan Hill and reversed Santa Clara Superior Court Judge William J. Elfving’s order striking the complaint.
In 2003, after Councilwoman Hedy Chang made known her belief that Morgan Hill City Manager J. Edward Tewes and City Attorney Helene Leichter were having an affair and Leichter threatened to take legal action, Chang retained Tichinin.
At this time, Tichinin also represented two clients in matters before the council. Tichinin said he suspected Tewes had been able to influence Leichter to change her recommendation regarding one of these matters.
Upon conveying his suspicions to his client, he said his client authorized him to hire an investigator.
If the investigation uncovered evidence of an affair, Tichinin claimed, he intended to inform the council and request Leichter be removed from further involvement with his client’s matter due to a conflict of interest.
While attending a conference in Huntington Beach in 2004, Tewes said he noticed that he was being watched and became worried that someone was stalking him. Tewes reported the surveillance to the council, which appointed a subcommittee to investigate.
Tichinin initially denied involvement in the surveillance when questioned by a subcommittee member, but later recanted and explained he was investigating the rumored relationship between Tewes and Leichter.
At a meeting July 14, 2004, the City Council adopted a resolution that it “condemn[ed]…the unwarranted and unjustified” surveillance of Tewes and “deplore[d]” the false statements Tichinin had made to avoid disclosure of the surveillance.
The attorney then filed his Sec. 1983 action, asserting that his actions in hiring an investigator were protected under his First Amendment rights of petition and free speech. The city responded with a special motion to strike, which the trial court granted.
On appeal, Tichinin conceded that his action was based on acts by the city that would qualify for protection under the anti-SLAPP statute, so that the burden was on him to show a probability of prevailing on the merits of his claims to withstand the motion to strike.
Presiding Justice Conrad L. Rushing reasoned that the hiring of an investigator, like discovery or settlement talks, could not be considered protected petitioning activity, but that it still fell within the “breathing space” necessary for the effective exercise of the right to petition as long as it is incidental or reasonably related to an actual petition or actual litigation, or to a claim that could ripen into a petition or litigation, and the petition, litigation or claim is not a sham.
As investigation of a potential claim “is normally and reasonably part of effective litigation, if not an essential part of it,” and an attorney has a duty to investigate the facts underlying a client’s claims and can be sanctioned for failing to do so, Rushing posited that the prelitigation investigation of a potential claim “is no less incidental or related to possible litigation than prelitigation demand letters and threats to sue, which are entitled to protection.”
Accepting as true all evidence favorable to Tichinin, Rushing concluded the attorney had made a prima facie showing that his investigation was reasonably related to a potential claim that Leichter had a conflict of interest—a claim that he would have made to the council or incorporated into a lawsuit against the city had that investigation produced evidence of an inappropriate romantic relationship to support it.
Absent any evidence conclusively establishing that the alleged romantic relationship and claim of conflict of interest that Tichinin purported to investigate were a sham, Rushing said the attorney had presented a viable claim.
“To defeat the anti-SLAPP motion, Tichinin did not have to show that the alleged relationship and potential conflict of interest caused or affected the [coucil’s] formal decisions or would or could ultimately have led to a reversal of those decisions,” the justice emphasized. “Tichinin’s burden was to show that the investigation was sufficiently related to a potentially valid, non-sham effort to petition the government to constitute protected conduct.”
Although Tichinin asserted separate causes of action based on violations of his rights to petition and right of free speech, Rushing noted those claims were essentially identical insofar as both alleged that hiring an investigator was protected conduct, adding that the hiring of an investigator can also be considered protected under the right of free speech.
“[T]he right of free speech protects not only the actual expression of one’s views, thoughts, opinions, and information concerning improper or unlawful conduct by public officials but also non-expressive conduct that intrinsically facilitates one’s ability to exercise the right of free speech, including lawful efforts to gather evidence and information about public officials concerning allegedly improper or unlawful conduct,” he said.
Tichinin’s evidence was sufficient to make a prima facie showing that the investigation was protected by his right of free speech, Rushing explained. The jurist cited evidence that Tichinin’s investigator conducted surveillance of Tewes, who was attending a conference in his official capacity as city manager, for the purpose of gathering evidence and information concerning whether Tewes and Leichter were having a romantic affair, which, if true, would be a matter of public concern that Tichinin intended to communicate to members of the council and use to seek relief.
Joined by Justices Richard J. McAdams and Wendy Clark Duffy, Rushing concluded that Tichinin had introduced sufficient evidence to support findings that he was engaged in conduct protected by the First Amendment rights to petition and right of free speech which allowed his claim to withstand the SLAPP challenge.
The case is Tichinin v. City of Morgan Hill, H031019.
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