Thursday, December 20, 2018
Page 3
C.A. Resuscitates Newspaper’s First Amendment Suit Against City
By a MetNews Staff Writer
The First District Court of Appeal yesterday reinstated an action by the publisher of a weekly newspaper against a city in Solano County which, the plaintiff claimed, denied him a contract for the publication of legal notices based on editorial stances he took.
Presiding Justice Stuart R. Pollack of Div. Four wrote the opinion, which was not certified for publication. It reverses a judgment of dismissal that followed the sustaining of the city’s demurrer to all five causes of action, without leave to amend.
It direct that on remand, demurrers be overruled as to two of the causes of action: for violations of publisher David J. Scholl’s First Amendment rights and Public Contract Code §20169.
Scholl sued the City of Dixon—the population of which, at the time of the 2000 census, was 18,351—and several current and former city officials after being denied a contract for the publication of legal notices for the 2016-2017 contract year. Prior to that, his publication, the Independent Voice, had been awarded the contract every year since 2010.
The publisher alleged that the City Council adopted new requirements which excluded his weekly publication from being awarded the contract—particularly a requirement that the contract be granted to a newspaper published at least three times a week.
Among the five city lawmakers voting in favor of the changes were lame duck Councilmen Thom Bogue and Dane A. Besneatte, who allegedly blamed their failure to gain reelection bids on the Independent Voice’s endorsement of rival candidates.
First Amendment Claim
The plaintiff’s first cause of action, that his contract was not renewed in retaliation for protected speech, was based in part on alleged statements by Besneatte in an email to the Independent Voice. According to Scholl’s complaint, the email said:
“Clearly, you do not publish a ‘news’ paper but rather a tabloid hit piece suited to your personal and political leanings just as you handle most everything you are involved with. Because of the lack of credible news-worthiness it is my intention to request that the agreement with your publication and the city regarding public notices be reviewed as I do not think it is appropriate to continue having notices published in such a biased and disingenuous publication.”
The election which Besneatte and Bogue lost came between two votes on the changes to the contract requirements; both councilmen changed their positions from the first vote, which had rejected the changes.
Allegations Sufficient
Pollack wrote:
“The city contends the demurrer was properly sustained because the second amended complaint fails to allege that the denial of a publishing contract would chill or silence a person of ordinary firmness from further First Amendment activities. The complaint is not ‘silent’ on this issue as the city suggests. After detailing numerous issues concerning which Scholl has published criticism of city council actions and endorsed opponents of council members in city elections, the complaint states, ‘Government entities are prohibited from retaliating against the Press—or any individual—for the expression of viewpoints....[¶]...Such retaliation has a chilling effect on the exercise of freedom of the press and freedom of speech as it would dissuade persons of ordinary firmness from criticizing city officials and city government.’ These allegations are sufficient to withstand the demurrer.”
He rejected the city’s argument that Besneatte’s statement and a similar sentiment expressed by another defendant did not establish an improper motive.
Public Contract Code
Public Contract Code §20169 requires legislative bodies of cities with more than one newspaper of general circulation to annually “publish a notice inviting bids and contract for the publication of legal notices required to be published in such a newspaper….”
The jurist said that requirement is subject to the legislative body’s discretion as to qualification of bidders, but pointed out that Scholl “argues that the city council abused its discretion by inviting bids subject to requirements that are unreasonable, retaliatory, and frustrate the purpose of the Public Contract Code.” He continued:
“Whether there is a reasonable justification for these requirements, or whether the requirements were designed solely to retaliate against Scholl by making it impossible for his newspaper to comply, is a factual issue that cannot be resolved on demurrer.”
The opinion rejects Scholl’s contentions that the city violated his due process rights and the federal Sherman Act, and that a writ of mandate should issue directing the City Council to award him the contract.
The case is Scholl v. City of Dixon, A151686.
Controversial Councilmen
The State Bar’s website shows that Besneatte, a member since 1979, is currently as not eligible to practice law. A decision dated July 18 of this year, states:
“During a trial management conference in superior court, Respondent stated that his client was not present in court because Respondent received an email indicating that his client rushed his wife to the hospital. In fact, Respondent never received such email from his client.”
The decision stays a one-year suspension and places the attorney on probation for the same period, but imposes an actual 90-day suspension.
Bogue, currently mayor of Dixon, drew controversy in September when he stated “I don’t welcome pedophiles, active criminals. I don’t welcome those practicing Shariah [Islamic] law....They have the right to kill their wives, kill their children.”
The comments were made in the wake citizens putting up signs expressing the sentiment that Dixon welcomes everyone. Those signs were in response to then-Vice Mayor Ted Hickman’s statement in his Independent Voice column that July should be declared “Straight Pride American Month.”
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