Thursday, May 31, 2018
Court of Appeal:
Order Conditioning Attendance at Public Hearings Is Valid
Workplace Harassment Order Is Affirmed Requiring a Man Whose Conduct Was Aggressive to Arrange For Deputy Sheriff to Be Present If He Comes to Session of Supervisors or Planning Commission
By a MetNews Staff Writer
The Third District Court of Appeal yesterday affirmed a workplace restraining order obtained by a county against a property owner who had behaved in a threatening manner toward two county employees, ordering that he not harass them and requiring that he arrange for a deputy sheriff to be present any time he attended a meeting of the planning commission or the board of supervisors.
Acting Presiding Justice Coleman Blease wrote the unpublished opinion, which affirmed a decision of a retired judge from Calaveras County, Douglas Mewhinney. He was assigned to hear the matter in San Joaquin Superior Court based on the allegation of the landowner, real estate agent Roger Towers, that the local judges were biased against him.
Mewhinney on Nov. 18, 2016, heard testimony from two members of the public who had witnessed Towers’s conduct at public meetings, as well as the two employees, Community Development Director Kerry Sullivan and environmental planning consultant Amy Skewes-Cox, who had drawn his ire based on their perceived roles in limiting him in developing his property.
The visiting judge acted pursuant to Code of Civil Procedure §527.8 which provides, in part:
“If the judge finds by clear and convincing evidence that the respondent engaged in unlawful violence or made a credible threat of violence, an order shall issue prohibiting further unlawful violence or threats of violence.”
Blease described some of the incidents giving rise to the three-year restraining order:
At a board of supervisors meeting in 2003 or 2004, Towers “lunged” at Sullivan “while making a loud, guttural noise, but was stopped by his wife’s intervention from contact with” her; at a board meeting in January 2010, he “verbally attacked” Sullivan; when he spoke at a planning commission meeting in November 2015, “his hands were shaking, he was red in the face, and he appeared angry and agitated” and accused Sullivan of lying.
Blease also recited:
At a planning commission meeting on Sept. 29, 2016, Towers spoke twice and each time “was intense, visibly shaking, red-faced, and appeared to some of those present to be more dangerous and threatening than on previous occasions,” hurling accusations at Sullivan and Skewes-Cox; in an Oct. 11, 2016 lawsuit (his fourth against the county) he named Sullivan and Skewes-Cox as defendants (alleging they had conspired with San Joaquin Superior Court judges).
First Amendment Invoked
Towers argued on appeal that he has a First Amendment right to denounce government employees at public meetings, and to do so angrily. Blease said the restraining order does not offend free-speech rights, declaring:
“An expression within the scope of the First Amendment is one that seeks to persuade….As speech moves from persuasion to threats, the state has more latitude to regulate it.
“Thus, if there is evidence that the elements of a petition under section 527.8 have been satisfied, the speech is not constitutionally protected….We have concluded there was sufficient evidence to support the trial court’s findings, thus Towers’s First Amendment claim fails.”
Towers also contended that the requirement that he arrange for the presence of a deputy sheriff whenever he attends a meeting of the board of supervisors or planning commission meetings constitutes an unlawful prior restraint and that the order is impermissibly vague. Blease responded:
“The order did not prevent Towers from attending and speaking at County supervisor or planning meetings. Rather, the order provided that such attendance required Towers to contact the sheriff’s office to arrange the presence of a deputy, and if no deputy could be present, to contact County Counsel’s office to arrange for the presence of a deputy. This provision does not enjoin speech, was sufficiently narrowly tailored to accomplish the objective of protecting the employees, and was sufficiently precise….Accordingly, the order was not vague, nor was it an impermissible prior restraint.”
The case is San Joaquin County Counsel’s Office v. Towers, C084030.
On March 13, U.S. Magistrate Judge Kendall J. Newman of the Eastern District of California recommended that District Judge John A. Mendez dismiss with prejudice Towers’s action seeking a declaration that the restraining order is unconstitutional.
He said Towers “has an adequate opportunity to litigate his federal claims” in state court and “has not sufficiently demonstrated ‘extraordinary circumstances’ based on the County’s alleged bad faith in seeking these restraining orders” to justify non-application of the doctrine requiring abstention from interference with state proceedings.
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