FREEDOM OF PETITION/FREEDOM OF SPEECH — Bob Egelko, reporting in the San Francisco Chronicle, notes that the California Court of Appeal has concluded that a lawyer "wasn't acting as a Peeping Tom or a member of the
paparazzi when he hired an investigator to stake out a Morgan Hill
official in an unsuccessful search for evidence of a suspected romantic
attorney Bruce Tichinin was exercising a citizen's right to look into
possible government wrongdoing, and can sue the city of Morgan Hill for
allegedly retaliating against him by denouncing his actions, the
appellate panel in San Jose said Monday.
Tichinin's lawyer said the ruling by the Sixth District Court of
Appeal should be good news for anyone, including the media, who is
trying to find out what public officials are up to.
"You're (constitutionally) protected when you lawfully gather
evidence," said attorney Steven Fink. "You can fight city hall
Actually, the case provides the news media with no rights or protections they have not had for many years, above all "to find out what public officials are up to," as former presidential candidate Gary Hart and, more recently, John Edwards could affirm to their chagrin.
Morgan Hill City Attorney Danny Wan said Tuesday that local
officials should be concerned when a court extends constitutional
protection to "spying on city employees based on just rumors." He said
the city hasn't decided whether to appeal to the state Supreme Court.
Tichinin represented a developer who wanted to build housing in
Morgan Hill. According to Tichinin's lawsuit, then-City Attorney Helene
Leichter supported the project at first, but turned against it after
City Manager J. Edward Tewes expressed opposition. The city rejected
the plan in 2004.
Tichinin said he suspected Tewes was improperly influencing
Leichter. With the developer's approval, he hired a private
investigator to look into rumors that had been circulating in the city
since 2002 that Tewes and Leichter were having an affair, the court
What followed, by the court's description, was a bizarre sequence at
a hotel in Huntington Beach, where Brian Carey, an employee of the
investigator, reserved a room in February 2004 to keep an eye on Tewes.
Tewes said he had returned to his room at one point and found a
serving of hot chocolate for two, which he later learned Carey had
ordered and placed in the room.
The next morning, Tewes, suspecting that someone was stalking him,
made a loud noise in his room, then hid in the hallway and saw Carey
approach with a video camera, which he put aside when he saw Tewes.
The City Council, meanwhile, conducted its own investigation and
concluded the rumors of an affair were unfounded. Leichter left office
in 2005 and is now the city attorney in Santa Clara. Tewes is still the
Morgan Hill city manager.
After Tewes reported the hotel incident, City Council members
confronted Tichinin, who at first denied ordering the surveillance but
later admitted it, the court said.
At a July 2004 meeting, the council
passed a resolution condemning Tichinin for both the surveillance and
the falsehood. Tichinin's suit accused the city of violating his rights and
damaging his reputation and his law practice. A Santa Clara County
judge dismissed the claim, saying the council had the constitutional
right to criticize him.
But the appeals court said the lawyer had the right to check out a
possible conflict of interest that could have harmed his client.
The city compared Tichinin to a paparazzi photographer who was found
liable for harassment for stalking Jacqueline Kennedy Onassis. But in
the 3-0 ruling, Presiding Justice Conrad Rushing said Tichinin had not
been engaged in "extreme, excessive and unreasonable conduct," but
instead in "lawful efforts to gather evidence and information about
public officials concerning allegedly improper or unlawful conduct."