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New motion seeks to remove three San Juan Capistrano councilmen and the city attorney from the lawsuit

By Brian Park

Attorneys for the city of San Juan Capistrano are fighting back against a local newspaper that sued the city over a decision to ban newspaper racks, saying that the lawsuit violates the First Amendment rights of three council members and the city attorney.

In a motion filed last week in Orange County Superior Court, Assistant City Attorney Philip Kohn argues that Mayor Sam Allevato, councilmen Larry Kramer and John Taylor, and City Attorney Hans Van Ligten should have their names removed from the lawsuit filed by Community Common Sense, publishers of a monthly newspaper in San Juan and Mission Viejo.

Kohn argues that the lawsuit threatens city officials’ freedom of speech and that their actions leading up to the news rack ban are protected by the First Amendment. He supports his argument using the state’s anti-Strategic Lawsuit Against Public Participation law, or anti-SLAPP, which is intended to protect citizens from litigation that threatens to silence or intimidate them from public participation.

“This motion serves to vindicate the rights of the city officials to engage in protected activity associated with their official duties,” Kohn writes. “Among the most fundamental rights protected by the United States and California constitutions is the right of free speech. This case arises out of the city officials’ good faith exercise of this very right.”

The motion is scheduled to be considered in court on March 6 by Judge James Di Cesare. Should he grant the motion, attorneys for the city will also look to recover legal fees from Common Sense.

Although the motion seeks to remove the four men from the lawsuit, Kohn acknowledges the case will go on with only the city listed as a defendant.

“Bottom line is, if you’re saying that the city has a policy that’s irregular in regard to the news racks, then go for it,” Kohn said. “But you don’t need to haul in members of the City Council and the city attorney, who are performing their duties.”

Kohn’s motion comes a month after Di Cesare issued an order for the city to temporarily allow news racks back at City Hall and the Community Center. As part of the order, Common Sense is also allowed to distribute 10 copies of their paper in the Community Center’s senior reading room. The two sides are scheduled to be in court Feb. 27 to consider continuing the order. The city is also developing its own policy to regulate news racks.

The lawsuit stems from an alleged closed session vote by the three councilmen in August to ban news racks at the two locations, despite two other publications, The Capistrano Dispatch and the Capistrano Valley News, having racks there for at least a decade.

Councilman Roy Byrnes disclosed the 3-1 vote during the council’s Oct. 1 meeting to San Juan resident and Common Sense member Kim McCarthy. Councilman Derek Reeve recused himself from the discussion because, as an attorney, he has previously represented Common Sense, including in the news rack issue, through letters sent to Van Ligten before the lawsuit was filed.

But Van Ligten has maintained that “no reportable action” was taken during the closed meeting and that no motion had been passed. Kohn, who works with Van Ligten for the city’s contracted law firm Rutan & Tucker, wrote in his motion that any alleged vote and correspondences from Van Ligten to Common Sense are protected forms of free speech.

Common Sense members and supporters have criticized the city for discussing the news rack issue behind closed doors. Attorneys for the city have justified the decision using the Brown Act, the state’s open meeting and public records law, which allows governing bodies to enter into closed session in case of potential litigation.

But in its initial complaint, Wayne Tate, Common Sense’s attorney, wrote, “no such threat existed,” and that the city “willfully intended to shield their discussion regarding Community Common Sense from the public.”

Tate declined to comment directly on the motion but said he would be filing an opposition to it. As for the Feb. 27 meeting in court, Tate said he was confident that a deal would be worked out.

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