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By Brian Park

The San Juan Capistrano City Council voted in closed session Tuesday for a plan to temporarily bring newspaper racks back to City Hall and the Community Center, but representatives for a local newspaper suing the city say the proposal falls short of their expectations.

The proposal allows news racks to be placed a few feet from their original locations, while the city continues its legal battle with Community Common Sense, publishers of a monthly newspaper.

However, Wayne Tate, attorney for Common Sense, said his clients aren’t likely to accept the city’s proposal as presented. Kim Lefner, editor of Common Sense, said the city should also stop using its anti-littering ordinance as a way to prevent the placement of her paper on city properties. Lefner also said Common Sense cannot accept the proposal until the city rescinds a letter sent to them in September by City Attorney Hans Van Ligten that threatens to prosecute them.

“In order to protect ourselves, the city needs to agree to those two terms. Those are critical, and they didn’t,” Lefner said.

The two sides are due in court Thursday, December 19. Last Wednesday, Van Ligten and fellow Rutan & Tucker attorney Philip Kohn spent nearly three hours negotiating with Tate at the request of Orange County Superior Court Judge James Di Cesare.

The lawsuit stems from the council’s closed session decision in August to remove news racks at City Hall and the Community Center. In November, Common Sense filed their lawsuit against the city, Van Ligten and the three council members who voted in favor of the ban, Mayor Sam Allevato and councilmen Larry Kramer and John Taylor. Councilman Roy Byrnes voted against the ban. Councilman Derek Reeve, an attorney, recused himself from that discussion because he has represented Common Sense in the past.

The lawsuit accuses the parties of violating the First Amendment’s protection of free speech and states that the city’s decision came only after they placed their own papers at the two locations, despite two other newspapers, The Capistrano Dispatch and the Capistrano Valley News, having racks there for at least a decade.

Allevato announced the council’s decision at the start of their meeting on Tuesday. He said that while the proposal allows for the temporary return of news racks, the city has been evaluating new regulations since before the lawsuit.

“The City Council confirmed that it continues to recognize the First Amendment rights of all, including news organizations and other groups, to engage in protected activities on public property,” Allevato said.

While Reeve recused himself from the closed session discussion, Byrnes abstained from voting. In a letter written before the meeting, Byrnes said he felt the discussion belonged in public.

“Notwithstanding the fact that this matter involves litigation, the central issues encompass public policy regarding freedom of the press, constitutional freedoms and fair treatment of citizens by government. I hold that it is in appropriate for our City Council to be making policy on such matters behind closed doors,” Byrnes wrote.

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