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By Brian Park
A local newspaper is suing the city of San Juan Capistrano, three council members and the city attorney over the city’s closed session decision to remove newspaper racks at City Hall and the Community Center.
The lawsuit accuses the city, Mayor John Taylor, councilmen Sam Allevato and Larry Kramer and City Attorney Hans Van Ligten of violating the First Amendment’s protection of free speech and the freedom of the press.
The complaint was filed electronically Monday, November 18 in Orange County Superior Court by Laguna Hills lawyer Wayne P. Tate on behalf of Community Common Sense, publishers of a monthly newspaper often critical of the council majority of Taylor, Allevato and Kramer and their support for the city’s controversial groundwater recovery plant and disputed tiered water rates.
Tate said the group will seek a restraining order to allow for the return of newspaper racks. In addition, the lawsuit also seeks attorney’s fees and more funds awarded by the court.
Common Sense, formerly known as Capistrano Common Sense before expanding their coverage into Mission Viejo, say the city’s decision to remove newspaper racks came only after they had their own papers placed at City Hall and the Community Center. Two other newspapers, The Capistrano Dispatch and the Capistrano Valley News, had been allowed to place news racks at those cites for at least ten years, the lawsuit says.
On August 6, the city held a closed session meeting to discuss news racks, and during the council’s meeting on October 1, Councilman Roy Byrnes disclosed to Common Sense member Kim McCarthy that the council had voted 3-1 to remove all news racks. Councilman Derek Reeve, an attorney who has legally represented Common Sense in the news rack issue as well as public records act issues, recused himself from the meeting.
Byrnes’ disclosure of the vote was disputed by Van Ligten, who said no reportable action was taken. Byrnes’ revelation, along with Reeve’s ties to Common Sense, sparked a contentious debate on the council dais November 5, which resulted in a 3-2 vote to look into Kramer’s accusations of Brown Act violations by Byrnes and legal and ethical violations by Reeve. The council, encouraged by a peacemaking strategy proposed by the Chamber of Commerce, reversed course from its decision on November 20 and dropped a $25,000 investigation in favor of seeking an opinion from the state Attorney General’s office.
“I’m very disappointed. We just had the City Council meeting to cool things off, and I thought we had, but the next day we have this lawsuit,” Kramer said. “We tried to put out the olive branch, but this is just another lawsuit that will cost the taxpayers.”
The city, along with Taylor, Allevato and Van Ligten, all said they were reviewing the complaint but declined to comment further.
Common Sense members and their supporters have criticized the city for discussing the news rack issue in closed session. During council meetings this month, Assistant City Attorney Patrick Munoz justified the decision, saying cities are allowed to enter into closed session when public discussions would prove a disadvantage, such as in potential legal or real property issues. In this case, Munoz set the potential threat of litigation allowed the council to enter into a closed meeting.
Tate, however, said there was never any threat of litigation.
“Until they decided to do this, who decided to sue them? Where was the threat?,” Tate said. “I don’t know how anybody realistically could do what this city did and not expect anything to happen.”
Common Sense Editor Kim Lefner said the decision to remove news racks is another example of the city targeting her paper and its supporters. According to the lawsuit, when Common Sense members tried to place a stack of papers on city property “in or about 2011,” city staff “made disparaging remarks regarding (Common Sense) and discarded its newspapers.”
The lawsuit also cites an exchange between Common Sense volunteer Alvin Ehrig and two detectives from the Orange County Sheriff’s Department, who accused Ehrig of threatening a city employee when Ehrig attempted to distribute papers at a city property. No charges were filed against Ehrig.
“The detectives brought with them a photograph of Mr. Ehrig and a photograph of his fingerprint. These items were designed to threaten, harass and intimidate Mr. Ehrig and subsequently (Common Sense),” the lawsuit states.
Lefner said Common Sense members, supporters and businesses who advertise in the paper have been heavily criticized and threatened by the paper’s critics.
“We’ve been called names, we’ve been targeted,” Lefner said. “This is a very small town and the relationships here have been developed over the decades. So many of these people have been here for a long time and they sort of see it as their town … This is about printing the truth, and they don’t like it. It makes them uncomfortable.”
Lefner and Tate said any decision in favor of Common Sense would allow The Dispatch and the Capistrano Valley News to also return to City Hall and the Community Center. Tate said the publishers of those papers should take steps to address the issue.
“It seems like the smallest guy is fighting the biggest fight,” Tate said.