• 05/13/2013: City Council Resolution 35-13. City Council approval of amendments to the Final Development Plan related to the residential portion of the Emerson Ranch Development. No changes to the commercial portion.
• 06/14/2016: City Council approval of Woodbury (Neighborhood 6). o City Council Resolution 86-16: Approval of a General Plan Amendment designating approximately 16-acres of the 24-acre commercial site to “MultiFamily Residential, Low Density”. o Ordinance No. 13-16: Amending the existing P-1 (Planned Unit Development) District to accommodate a Final Development Plan for the project titled, “Emerson Neighborhood 6 – Woodbury”
o City Council Resolution 87-16: Approval of 1) a Vesting Tentative Map to subdivide approximately 16 acres into 104 single family lots with associated improvements, 2) a Final Development Plan for the portion of the P-1 District modified by the vesting tentative map, and 3) Design Review of house plans and architecture, and a plotting plan.
• 06/08/2021: City Council approval of the Emerson Ranch Commercial Design Review.
o City Council Resolution 76-21: Design Review approval to develop an approximately 8-acre commercial center to include a gas station and convenience store, car wash, drive-through restaurant, grocery store, and three retail pad buildings1.
Potential Future Entitlements:
• Per the approved P-1 District for the Emerson project, if additional conditionally permitted uses that were not originally approved are proposed in the future, they would be subject to approval of a conditional use permit. Examples of such uses are as follows: Gas Service Stations (with or without Car Wash and/or Convenience Store); Restaurants (with drive-thru service); Liquor Store; Hotels; Bar, lounge, tavern and similar establishments; and Tobacco Oriented Retail Establishment. The gas station approved in the Emerson Commercial site will be subject to approval of a conditional use permit (under the use of Liquor Store) if the operator proposes to sell beer, wine, or alcohol.
1 Per the June 8, 2021 Staff Report supporting City Council Resolution 76-21, the P-1 District Development Standards of the adopted Emerson Ranch Conceptual Commercial Design (City Council Ordinance No. 18-10) includes a zoning matrix of permitted land uses. All of the uses proposed in the proposed plan approved by City Council Resolution 76-21 were included in the conceptual plan, and therefore, permitted by right. No conditional use permits were required. If additional conditionally permitted uses that were not originally approved and conceptualized are proposed, they would be required to file an application for conditional use permit approval. 193
Subject: Summary of Entitlements at the Emerson Ranch Commercial Site Date: October 14, 2022
Pending Entitlements:
• Shell Hydrogen Fueling Station Design Review (DR 07-22) - Application by Greg Kashiyama, on behalf of Fiedler Group requesting approval of a Design Review (DR 07-22) to install two (2) hydrogen fuel dispensers along with associated equipment at the proposed Shell fuel station located within the Emerson Ranch commercial development. Site modifications include removal of approximately 200 square-feet of landscaping and construction of an equipment enclosure. The project site is located at the property address 920 E. Cypress Road and zoned P1 (Planned Unit Development) District. (APN: 037-192-038). 194
STAFF REPORT
Approved and Forwarded to the City Council
DATE: October 25, 2022
TO: Joshua McMurray, City Manager
FROM: Derek P. Cole, City Attorney
SUBJECT: Analysis Concerning Regulations Limiting Discussion of Personnel Matters During Public Comment
Background and Introduction
At previous City Council meetings, a member of the Council has requested an analysis of what limitations, if any, the Council may impose during public comment concerning the expression of personnel matters involving City employees. This memorandum and the attachments are intended to respond to this request.
As will be explained, the City Council does not have any authority to limit the discussion of personnel matters, including the making of complaints and charges, during public comment.
Analysis
I attach two judicial opinions to this Staff Report. These cases, which challenged rules made by school-district boards, make very clear that the First Amendment precludes any restrictions on discussion of personnel matters during public comment.
For purpose of this discussion, a restriction on “personnel” matters would be typified by a rule at issue in one of the attached opinions. In the Moreno Valley USD Case, the rule read as follows:
“No oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee. If an attempt is made to include charges or complaints against an employee in any way, the Board President will order the presentation stopped at once, and the Board meeting will continue in accordance with the established agenda. All charges or complaints against employees must be submitted to the Board under provisions of Board policy. 195
Any individual who violates this policy will be warned to discontinue his/her comments immediately. If the individual willfully interrupts the meeting by refusing to comply with the warning, the Board President may authorize the removal of the individual pursuant to Government Code section 54957.9.”
I will avoid a very lawyerly or overly complex analysis of this issue because I believe the law as to this subject is so clear. Succinctly summarized, the reasoning of the two attached cases is that:
1. In requiring that the public be given an opportunity to comment on matters within the jurisdiction of the City Council, the Brown Act creates what First Amendment law describes as a “limitedpurpose public forum.”
2. When government creates a limited-purpose public forum, any “content-based” restriction on the speech allowed in such a forum is subject to strict constitutional scrutiny. A limitation on “personnel” matters is inherently content-based as it declares as off-limits speech concerning specific types of subjects—e.g., complaints about or charges against public employees.
3. Under strict-scrutiny analysis, local governments do not have a “compelling interest” in limiting public comment on these subjects. The protection of the rights of public employees who may be the subject of complaints or charges does not rise to the “compelling” level necessary to survive strict constitutional scrutiny.
4. Nor, under strict-scrutiny analysis, would limitations on the making of charges or complaints against public employees be “narrowly tailored” to ensure that do not sweep more broadly than necessary to serve any compelling interest.
Conclusion
The City Council has no authority to impose any limitation on public comments concerning personnel issues, including on the making of complaints about or charges against City employees.
196
Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (1997) 121 Ed. Law Rep. 95
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment
Distinguished by Association of Christian Schools International v. Stearns, C.D.Cal., August 8, 2006 973 F.Supp. 951
United States District Court,
S.D. California.
Nancy LEVENTHAL; Margaret C. O'Neill, Plaintiffs,
v.
VISTA UNIFIED SCHOOL DISTRICT; School Board President
David Hubbard, in his Official Capacity, et al., Defendants.
No. 97–709–BTM(LSP).
|
July 1, 1997.
Synopsis
Suit was brought against school district and against school board members in their official capacities, seeking injunctive and declaratory relief with respect to board bylaw prohibiting criticism of district employees at open board meetings. On plaintiffs' motion for permanent injunction and cross motions for summary judgment, the District Court, Moskowitz, J., held that: (1) Eleventh Amendment barred claims against school district and pendent state law claims for declaratory and injunctive relief against the board, but allowed suit under § 1983 for prospective injunctive and declaratory relief against the board members in their official capacities; (2) bylaw's prohibition of criticism violated First Amendment; (3) California law allows public employees to demand that a governing body air complaints about the employee in public, but does not grant the employees the right to force the conflict behind closed doors; and (4) bylaw provision regulating the placement of agenda items at open board meetings was valid.
Motions granted in part and denied in part, and declaration and injunction issued.
Procedural Posture(s): Motion for Summary Judgment.
Attorneys and Law Firms
*953 Guylyn R. Cummins, Gray, Cary, Ware, & Freidenrich, San Diego, CA, Jordan C. Budd, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, for Plaintiffs.
Susan J. Boyle William Wood Merrill Littler, Mendelson, Fastiff, Tichy & Mathiason, San Diego, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION
FOR PERMANENT INJUNCTION AND SUMMARY JUDGMENT, AND GRANTING
IN PART AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT MOSKOWITZ, District Judge.
INTRODUCTION
This matter comes before the Court on Plaintiffs' motion for permanent injunction and summary judgment, and Defendants' motion for summary judgment. Apart from the amended reasoning outlined below in Part IV, the Court adopts its order of 197
Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (1997) 121 Ed. Law Rep. 95
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 June 18,1997 and applies that order to Defendant David Hubbard and to the new Defendants—Jenny Vervynck, Lance Vollmer, Linda Rhoades and Barbara Donovan, sued in their official capacity. Accordingly, for the reasons stated below, the Court grants in part and denies in part Plaintiffs' motion and grants in part and denies in part Defendants' motion.
BACKGROUND
The following facts are undisputed. Plaintiffs Margaret C. O'Neill (“O'Neill”)—a resident, volunteer, and parent of a student in the Vista Unified School District (the “District”)—and Nancy Leventhal (“Leventhal”)—a resident and community volunteer of the District and a former teacher—bring this action against the District and David Hubbard, Jenny Vervynck, Lance Vollmer, Linda Rhoades and Barbara Donovan, in their official capacity as members of the Vista School Board. Plaintiffs challenge School Board Bylaw No. 9002 (the “Bylaw”) under the First and Fourteenth Amendments to the United States Constitution, Article I, §§ 2, 3 and 7 of the California Constitution, and the state's Brown Act, Cal. Gov't Code §§ 54954.3 and 54960, seeking declaratory and injunctive relief.
The Bylaw permits the Board President to “terminate a presenter's address” at an open Board meeting “if a presenter persists, after a warning, to engage in improper conduct or remarks.” Bylaw, § C. The Bylaw acknowledges *954 that state law grants the public the right “to directly address the Board on items of interest to the public that are within the subject matter jurisdiction of the Board,” but limits those rights “with respect to presenting a complaint or charge against an employee of the District.” Id. § B. Under the Bylaw, “[c]omplaints against an individual employee will not be heard at open Board meetings unless the individual employee consents.” Id. § C. In addition, all proposed agenda items must be submitted to the Superintendent nine days before any regular Board meeting to “determine whether the specific matter is directly related to the business of the district or is appropriate for an open Board meeting.” Id. § A. A decision by the Superintendent not to place an item on the agenda may appealed to the Board. Id.
During the public comment portion of the February 20, 1997 Board meeting, the Plaintiffs attempted to address the qualifications and job performance of the District Superintendent, Dr. Jack Gyves (“Gyves”). Specifically, Leventhal expressed concerns that Gyves had a social relationship with Board member Jenny Vervynck (“Vervynck”), and that the relationship might compromise Vervynck's ability to participate in Gyves's contract negotiations and performance evaluations. (Leventhal I Decl., ¶ 5. 1) Because she had concerns over Gyves's fiscal administration of the District, his supervisory skills, and his prior performance as superintendent of another school district, (id, ¶ 8), Leventhal also questioned aloud whether the Board had adequately investigated Gyves prior to hiring him. (Leventhal 1 Decl., ¶ 8; Leventhal 2 Decl., ¶ 5.) As soon as Leventhal mentioned Gyves's qualifications, Board President Hubbard interrupted her, stated that Leventhal was “moving into a personnel issue,” and, pursuant to the Bylaw, informed her that her criticisms could not be made in a public Board meeting. (Leventhal 1 Decl., ¶ 9; Leventhal 2 Decl., ¶ 5.) According to Leventhal, after Hubbard's interruption, she “respectfully—but not voluntarily— terminated [her] comments about the hiring of Dr. Gyves, rather than face the indignity of further censorship and disruption of the proceedings....” (Leventhal 2 Decl., ¶ 7.)
At the February 20 meeting, O'Neill also tried to raise the issue of Gyves's performance at his former position and was similarly rebuffed by Hubbard. (O'Neill 2 Decl., ¶ 3.) O'Neill claims she omitted certain remarks about Gyves 2 from her prepared statement, “not voluntarily” but because “Mr. Hubbard threatened to clear the meeting room if I continued to criticize Dr.
Gyves.” (Id. ¶ 6.)
During the next Board meeting on March 6, 1997, Vervynck responded to Leventhal's comments from the previous meeting.
Vervynck characterized Leventhal as a “voice[ ] of criticism” who “sought to destroy and dismantle” through “innuendo” and the “impugning” of Vervynck's integrity. (Tr. of March 6, 1997 Bd. Mtg., Ex. B to Dow Decl., at 1.) Neither Hubbard nor any other Board member interrupted Vervynck during her statement. Leventhal then spoke, remarking that “it is totally inappropriate to have a community member who is using their free speech rights to speak ... lectured and have judgments made about them 198
Leventhal v. Vista Unified School Dist., 973 F.Supp. 951 (1997) 121 Ed. Law Rep. 95
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 publicly.” (Id. at 5.) Hubbard responded to Leventhal, explaining that while criticisms of the Board and the District were permissible, “I'm not going to allow this to turn into a situation where members of the public engage board members in personal attacks.... [I]f that's an abridgment of First Amendment rights, *955 then I'll wait for a court of law to tell me that.” (Id.) In addition to Leventhal and O'Neill, other members of the District community have expressed concerns regarding their ability to address the Board on matters of public concern. 3
The Board addressed the propriety and legality of the Bylaw at a March 20, 1997 open Board meeting, reiterating that the regulation barred criticism of District employees in open sessions and explaining that the District had no intention of changing the bylaw. The Plaintiffs have declined invitations to air their complaints about the Superintendent in closed sessions.
Since the March meetings, the Plaintiffs contend that the Bylaw continues to inhibit their ability to discuss public issues at open Board meetings. For example, concerns have recently arisen as to whether several top school officials—including Superintendent Gyves—have failed to comply with state bidding laws in connection with the renovation of Vista High School's softball fields. Although the controversy has received some media attention, see, e.g., Philip K. Ireland, VUSD board to discipline employees, North County Times, June 7, 1997, at A1, Leventhal refrained from discussing it in a June 7, 1997 Board meeting lest she violate the Bylaw and risk being silenced or ejected from the meeting. (Leventhal 3 Decl., ¶ 2.)
DISCUSSION
I. Eleventh Amendment immunity
Defendants argue that because school districts are state agencies for purposes of the Eleventh Amendment, see Belanger v.
Madera Unified School Dist., 963 F.2d 248, 251 (9th Cir.1992), the District and the individual Defendants are immune from suit.
As to the District itself, the Court agrees that the Eleventh Amendment bars the Plaintiffs' claims. See, e.g., Cerrato v.
San Francisco Community College Dist., 26 F.3d 968, 972 (9th Cir.1994) (holding college school district immune from suit in federal court under Eleventh Amendment). This holding has little practical effect, however, because Plaintiffs' claims against the Board members in their official capacity remain in the case. Since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it has been well established that plaintiffs may sue state officers in their official capacity for prospective injunctive and declaratory relief. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 609, ––––, 116 S.Ct. 1114, 1132, 134 L.Ed.2d 252 (1996) (“[S]ince our decision in Ex parte Young ..., we have often found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief”.... (citation omitted)); Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986) (“[R]elief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though *956 accompanied by a substantial ancillary effect on the state treasury.”); Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 423 (9th Cir.1996) (holding that Eleventh Amendment does not bar federal suit against state official for prospective injunctive relief); Cerrato, 26 F.3d at 973 (“It is well established that the Eleventh Amendment does not bar a federal court from granting prospective injunctive relief against an officer of the state who acts outside the bounds of his authority.”). Accordingly, the Board members are subject to suit under 42 U.S.C. § 1983 for prospective injunctive and declaratory relief. See, e.g., Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir.1989) (“[A]lthough the Supreme Court held recently [in Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ] that state or state officials are not considered ‘persons' under § 1983, this holding does not apply when a state official in his or her official capacity is sued for prospective relief.”). 199
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 II. Applicable law
As a general rule, courts should “avoid adjudication of federal constitutional claims when alternative state grounds are available.” Vernon v. City of Los Angeles, 27 F.3d 1385, 1391–92 (9th Cir.1994). This concept applies even where, as here, the alternate ground is based in state constitutional law. See Carreras v. City of Anaheim, 768 F.2d 1039, 1042–43 (9th Cir.1985).
In the instant case, however, the avoidance doctrine conflicts with an even stronger constitutional rule. In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Supreme Court held that the Eleventh Amendment bars federal courts from granting injunctive relief against state officials for violations of state law. See Ashker v.
California Dep't of Corrections, 112 F.3d 392, 394 (9th Cir.1997). The Court thus lacks jurisdiction to hear Plaintiffs' pendent state law claims for declaratory and injunctive relief. Although the Defendants did not raise this argument, the Court has an independent duty to examine its own jurisdiction. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 110 S.Ct. 596, 606– 07, 107 L.Ed.2d 603 (1990). Accordingly, the Court need not and cannot invoke the avoidance doctrine to consider Plaintiffs' state law claims.
III. Ban on criticism of employees in open meetings: Bylaw No. 9002 §§ B and C Plaintiffs' primary claims challenge the Bylaw's restrictions on raising “complaints” or “charges” against District employees at open Board meetings. 4 Bylaw, §§ B & C. As explained below, the Court finds the criticism provisions to be violative of core First Amendment values.
Because it concerns the government's ability to limit private expression in a public context, this case is governed by the public forum doctrine. Although the doctrine's roots can be traced back to dicta in the Supreme Court's decision in Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963–64, 83 L.Ed. 1423 (1939), the modern categorical approach began with Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). In Perry, the Court identified three distinct types of fora: first, “traditional” public fora—“places which by long tradition or government fiat have been devoted to assembly and debate;” second, “limited” public fora—“public property which the State has opened for use by the public as a place for expressive activity;” and third, “nonpublic” fora—property not dedicated in any significant way to free or open communication. Id. at 45–46, 103 S.Ct. at 954–56.
Under this categorical system, the state's ability to regulate speech depends on the nature of the forum. The government's power to restrict expression in traditional public fora, the Perry Court explained, is extremely limited: “reasonable time, place and manner regulations are permissible, and a content- *957 based prohibition must be narrowly drawn to effectuate a compelling state interest.” Id. at 46, 103 S.Ct. at 955–56. The Court imposed similar restraints on speech in limited public fora: “Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.” Id. In nonpublic fora, the government may restrict expression only if the regulation is reasonable and viewpoint-neutral. Id.
The first step in the public forum analysis requires the Court to determine the nature of the forum at issue. Here, the Court finds that the open Board meetings are limited public fora, “i.e., fora open to the public in general, but limited to comments related to the school board's ‘subject matter.’ ” Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719, 729 (C.D.Cal.1996). In City of Madison Joint Sch. Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976), where the Supreme Court invalidated a restriction on non-union employee speech at open school board meetings, the Court noted that “the State ha[d] opened a forum for direct citizen involvement.” Id. at 175, 97 S.Ct. at 426. Because 200
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 the case pre-dated Perry's categorical public forum approach, the Court in Madison did not explicitly refer to the school board meeting as a “limited public forum.” Nonetheless, in establishing the three public forum categories, the Perry Court cited the school board in Madison as a quintessential example of a limited public forum, Perry, 460 U.S. at 45, 46 n. 7, 103 S.Ct. at 954–55, 955 n. 7. Since Perry, courts have regularly read Madison to have declared open school board meetings to be limited public fora. See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 803, 105 S.Ct. 3439, 3449– 50, 87 L.Ed.2d 567 (1985) (“[I]n Madison ..., the Court held that a forum for citizen involvement was created by a state statute providing for open school board meetings.”); Baca, 936 F.Supp. at 728, 729 (citing Madison and holding that school board meetings are limited public fora); Clark v. Burleigh, 4 Cal.4th 474, 489, 14 Cal.Rptr.2d 455, 841 P.2d 975 (1992) (noting that Madison “presented a designated public forum unlimited as to speakers but not as to topic: any member of the public could speak, but only on school board business”).
Although the Ninth Circuit has expressed uncertainty about Madison's application to city board meetings, Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 (9th Cir.1995) (stating that city council and city board meetings “fit more neatly into the nonpublic forum niche”), those meetings are distinguishable from the District's Board meetings for several reasons. First and most simply, since Madison the Supreme Court has never wavered from its characterization of school boards as limited public fora. Second, California statutory law mandates the open nature of school board meetings not only in the Brown Act, Cal. Gov't Code §§ 54953 and 54954.3 (requiring meetings of certain public bodies, including school boards, to be open to the public, and declaring that the public must be allowed to speak “on any item of interest to the public ... that is within the subject matter jurisdiction of the legislative body”), but also in the Education Code, Cal. Educ.Code § 35145.5 (“Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the governing board on any item of interest to the public ... that is within the subject matter jurisdiction of the governing board.”).
As noted above, content-based restrictions in a limited public forum (beyond those defining the forum's boundaries) are permissible only if they are narrowly drawn to advance a compelling state interest. See International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 2705, 120 L.Ed.2d 541 (1992). It seems clear that the Bylaw's prohibition on criticism of District employees is a content-based regulation. See Baca, 936 F.Supp. at 729 (“It is difficult to imagine a more content-based prohibition on speech than this policy....”). It is equally clear that the District's concerns and interests in proscribing public commentary cannot outweigh the public's fundamental right to engage in robust public discourse on school issues.
*958 Debate over public issues, including the qualifications and performance of public officials (such as a school superintendent), lies at the heart of the First Amendment. See, e.g., Schenck v. Pro–Choice Network, –––U.S. ––––, ––––, 117 S.Ct. 855, 858, 137 L.Ed.2d 1 (1997) (noting that “commenting on matters of public concern” is “classic form[ ] of speech that lie[s] at the heart of the First Amendment”); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 344–45, 115 S.Ct. 1511, 1518, 131 L.Ed.2d 426 (1995) (remarking that political speech “occupies the core of the protection afforded by the First Amendment”); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77, 98 S.Ct. 1407, 1415–16, 55 L.Ed.2d 707 (1978) (suggesting that discussion of public issues lies “at the heart of the First Amendment's protection”); Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (“The First Amendment affords the broadest protection to ... political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ” (second alteration in original) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308–09, 1 L.Ed.2d 1498 (1957))). Central to these principles is the ability to question and challenge the fitness of the administrative leader of a school district, especially in a forum created specifically to foster discussion about a community's school system. As the Supreme Court explained in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964):
201
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. [I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion.
Id. at 269, 84 S.Ct. at 720 (internal quotations and citations omitted).
Defendants contend that these concerns are outweighed by the District's interest in protecting the privacy and property rights of its employees. They rely primarily on section 54957 of the Brown Act, which provides:
Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency ... from holding closed sessions ... to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.
Cal. Gov't Code § 54957. According to the District, this section codifies the protections for the privacy and property rights of public employees and thus requires the Board to limit criticism of the employees to closed meetings.
Before examining the Defendants' contentions, it is important to remember that even if the Brown Act sanctioned the Bylaw, First Amendment speech guarantees would trump the statute. It is no defense to suggest that since the Brown Act created the Board meetings, the Brown Act can also authorize unconstitutional limitations on those meetings. The essence of the public forum doctrine is the notion that although the government need not devote its property to expressive activity, once it does it is bound by the strictures of the First Amendment.
That said, the Brown Act provides little support for the District's position. Although § 54957 allows public employees to demand that a governing body air complaints about the employee in public, it does not grant the employees the right to force the conflict behind closed doors. Similarly, while the Brown Act permits governing bodies to hold closed sessions about personnel matters, nowhere does it grant those bodies the exceedingly broader authority to silence public speech that may also touch upon related employment issues. As noted above, the sections of the Brown Act and the Education Code that require the Board to hold public meetings grant the public a right to speak “on any item of interest to the public ... that is within the subject matter jurisdiction” *959 of the Board, without exception. Cal. Gov't Code § 54954.3(a) (emphasis added); Cal. Educ.Code § 35145.5 (emphasis added).
The preamble to the Brown Act sets forth the primary purposes of the Act as a whole:
The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants their right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
202
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 Cal. Gov't Code § 54950. In San Diego Union v. City Council, 146 Cal.App.3d 947, 954, 196 Cal.Rptr. 45 (1983), the court balanced the same two Brown Act provisions (the “personnel exception” of § 54957 and the “sunshine law” of § 54953) apparently in conflict in the instant case. Citing the statute's preamble, the court concluded that it “must construe the ‘personnel exception’ narrowly and the ‘sunshine law’ liberally in favor of openness.” Id, at 955, 196 Cal.Rptr. 45. The court explained, “Public visibility breeds public awareness which in turn fosters public activism politically and subtly encouraging the governmental entity to permit public participation in the discussion process.” Id. Thus, while the Brown Act authorizes a school board to discuss personnel matters in closed session, it does not preclude the public from raising such matters at open Board meetings. Once the matter has surfaced in public, the Board and the employee still may adjudicate the matter in closed session.
While the Court recognizes the privacy and property interests of the District's employees, the District's asserted interests pale in comparison to the expressive rights of the public. In Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (C.D.Cal.1996), the district court invalidated a local ordinance strikingly similar to the Bylaw here. Responding to comparable arguments by the defendants, the Baca court explained that the District's interest in protecting its employees' right of privacy is an interest it holds only as an employer, not as a government entity, e.g., a legislative body charged with permitting public comment at its meetings. Thus, its interest as an employer in protecting its employees' right to privacy cannot be characterized as a compelling governmental interest.
Id. at 732. This echoes the Supreme Court's discussion in Madison of the multi-faceted nature of school board operations:
“Whatever its duties as an employer, when the board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment or the content of their speech.” Madison, 429 U.S. at 176, 97 S.Ct. at 426. In presiding over open Board meetings, the District provides a forum for the Plaintiffs' critical comments; it does not endorse, sanction, or act upon those comments at the open meeting. See Baca, at 732 n. 13 (noting how, under Brown Act, decisions over employees' appointment, performance evaluation, discipline/ dismissal/release, salaries, workers' compensation claims, etc. are considered by Board in closed session). As a result, the public's statements cannot, as a matter of law, give rise to an insulted employees' claim for defamation or deprivation of due process. See Baca, 936 F.Supp. at 733 (noting that “one who is not the employee's employer can not directly deprive the employee of due process” (citing Gini v. Las Vegas Metropolitan Police Dep't, 40 F.3d 1041, 1044 (9th Cir.1994))).
Additionally, it is noteworthy that the Bylaw has not been used to protect “the need for civility and expedition in the carrying out of public business.” Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 (9th Cir.1995). There has been no claim that the Plaintiffs disrupted any Board meeting. If and when such problems do arise, the Board has at its disposal other sections of the Brown Act designed to restoring order and civility to the public meetings. See, e.g., Cal. Gov't Code § 54957.9 5 *960 In Madison, the challenged regulation prohibited public speech by teachers “on matters subject to collective bargaining.” Madison, 429 U.S. at 176, 97 S.Ct. at 427. Invalidating the restriction, the Supreme Court noted its potentially broad scope, remarking that “there is virtually no subject concerning the operation of the school system that could not also be characterized as a potential subject of collective bargaining.” Id. at 177, 97 S.Ct. at 427–28. So, too, most items within the Board's “subject matter jurisdiction” can be recast as “personnel” issues and therefore subjected to the Bylaw's limitation. Thus, as in Madison, restraining the public's “expression to the board on matters involving the operation of the schools would seriously impair the 203
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 board's ability to govern the district.” Id. For these reasons, the Bylaw cannot withstand the constitutional scrutiny applied to limited public fora.
Alternatively, the Bylaw fails even under the more deferential standard of review applied to speech restrictions in nonpublic fora. As mentioned above, regulations in nonpublic fora will survive a constitutional challenge only if they are “reasonable in light of the purpose served by the forum and are viewpoint neutral.” Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 392–93, 113 S.Ct. 2141, 2146–47, 124 L.Ed.2d 352 (1993) (quoting Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, 87 L.Ed.2d 567 (1985)). Although content-based restrictions are permissible in nonpublic fora, laws that discriminate not only on the subject matter of speech but also on the viewpoint of the speaker violate core free speech principles. In Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), the Supreme Court explained:
When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology is the rationale for the restriction.
Id. at 829, 115 S.Ct. at 2516 (citations omitted).
The Bylaw effectuates a classic form of viewpoint discrimination. As the Baca court noted, the regulation “allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees' conduct or performance).” Baca, 936 F.Supp. at 730. This system engenders discussion artificially geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue and, ultimately, dynamic political change.
The Bylaw fosters yet another form of viewpoint discrimination, unfairly permitting one-sided debate at Board meetings. As previously discussed, Superintendent Gyves and Board member Vervynck criticized several non-employee speakers. (See, e.g., Rosen Decl. ¶¶ 5,7; Bristol Decl. ¶¶ 6, 8–9.) Yet members of the community at large cannot respond to these charges, even to discuss the same subject matter or issue, if Board President Hubbard determines that their comments relate to a “personnel issue.” In other words, the Bylaw permits the expression of one viewpoint (“complaints” or “charges” against members of the public) but not another (“complaints” or “charges” against District employees). Accordingly, even if the Board meetings were nonpublic fora, the Bylaw operates in direct violation of the First Amendment.
The Defendants' limitation on public criticism is of particular concern in this case, arising as it does in the context of public education. The public entrusts school boards with the education of its children, and the schools play a critical role in the social, ethical, and civic development of those students. To relegate discussion on the education of a community's children to closed, back-room *961 sessions would deprive the public of the most appropriate forum to debate these issues. As Justice Jackson warned in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943): “That [school boards] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” See also, e.g., Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960) (“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”). 204
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 9 It should be made clear that the Court does not pass on the District's ability to limit the forum for complaints for actual disciplinary action against teachers, custodians, cafeteria workers and other non-policymaking employees of the District alleging specific violations of the law or District policies and regulations. Whether the District may require such a complaint to be raised in closed session is not before the Court. The Bylaw at issue here as interpreted by the Defendants proscribes public criticism of all employees, including the Superintendent and other District employees who, at the public's expense and with the public's trust, create and execute policies ranging from public expenditures to everyday student affairs. The Plaintiffs have not sought to file actual complaints for discipline, nor do they allege they intend to, against non-policymaking District employees. Thus, the Court need not decide whether the District can create very narrow Bylaws relating to such complaints for disciplinary action.
Moreover, the Court does not pass on the District's ability to protect its students' right to privacy. See, e.g., Cal. Educ.Code § 35146. The Bylaw in question here is not limited to precluding mentioning students by name. Whether a narrowly drawn bylaw safeguarding the privacy rights of students named at Board meetings would pass constitutional muster also is not before the Court today.
Finally, the Court reiterates that this decision does not invalidate § 54957 of the Brown Act. As discussed above, the Brown Act does not authorize the Bylaw's broad criticism ban, so the constitutionality of the Brown Act has never been at issue here.
IV. Prior approval of agenda items: Bylaw No. 9002 § A
Plaintiffs have standing to challenge Bylaw § A, the provision regulating the placement of agenda items, 6 notwithstanding the fact that Defendants have never denied any of the Plaintiffs' requests to add an item to a Board meeting agenda. 7See, e.g., Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059, 1062 (9th Cir.1990) (holding that plaintiffs have standing to pursue facial challenge to alleged prior restraint “without the necessity of first applying for, and being denied, a permit” (citing City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988))).
Nonetheless, the Court holds that once the Bylaw is stripped of the criticism bans contained in *962 §§ B and C, § A is not an unconstitutional prior restraint.
Read in light of the First Amendment principles outlined in this decision, the Superintendent's determination of whether a proposed agenda item is “appropriate for an open Board meeting” is limited to consideration of whether the item falls “within the subject matter jurisdiction of the legislative body.” Cal. Gov't Code § 54954.3. As a matter of law, the Superintendent cannot factor into his or her decision any additional viewpoint– or content–based criteria. Moreover, § A contains sufficient procedural safeguards necessary to secure constitutional compliance. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 605–06, 107 L.Ed.2d 603 (1990) (noting three procedural safeguards required of prior restraints). While the Bylaw does not explicitly place time limits on the Superintendent's decision to grant or deny agenda requests, it does provide that requests be made “at least nine working days before any regular meaning.” The Court reads into this language an implicit requirement that the Superintendent rule on the request within that nine-day period. Furthermore, § A affords members of the community the opportunity to contest any denials by the Superintendent in a prompt and public hearing. Bylaw, § A (“The appeal will be placed on the agenda of the next regular meeting for action by the Board.”). While mindful of the dangers of prior restraints, the Court recognizes that the Board must have some authority to set its agenda or it would be unable to conduct its business. With the above limitations read into the Bylaw, then, § A does not rise to the level of a proscribed prior restraint. 8 As a final note, each Board meeting features a “public comment period” apart from the regular agenda items. Thus, even if the Plaintiffs were unable to place a given issue on the Board's agenda, they could still raise their concerns during the public comment period.
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 10
CONCLUSION
For the reasons stated above, the Court grants in part and denies in part Plaintiffs' motion for summary judgment and permanent injunction and grants in part and denies in part the Defendants' motion for summary judgment 9 The Court declares that the prohibitions on any criticism, “complaint or charge against an employee of the District” contained in Vista Unified School District Bylaw No. 9002, §§ B and C, violate the Plaintiffs' rights secured under the First and Fourteenth Amendments to the United States Constitution. Defendants David Hubbard, Jenny Vervynck, Lance Vollmer, Linda Rhoades and Barbara Donovan, acting in their official capacity as members of the School Board of the Vista Unified School District, and their agents, successors, see Hafer v. Melo, 502 U.S. 21, 24–25, 112 S.Ct. 358, 361–62, 116 L.Ed.2d 301 (1991) (“[W]hen officials sued in [their official capacity] in federal court die or leave office, their successors automatically assume their roles in this litigation”), and employees who have received notice of this order, are hereby permanently enjoined and restrained from enforcing the prohibitions on any criticism, “complaint or charge against an employee of the District” contained in Vista Unified School District Bylaw No. 9002, §§ B and C.
IT IS SO ORDERED.
All Citations
973 F.Supp. 951, 121 Ed. Law Rep. 95
Footnotes
1 The Plaintiffs have submitted numerous declarations in connection with the motions now before the Court. For the sake of simplicity, “Leventhal 1 Decl.” and “O'Neill 1 Decl.” refer to the declarations filed on May 19, 1997 in support of Plaintiffs' motion for summary judgment. “Leventhal 2 Decl.” and “O'Neill 2 Decl.” refer to the declarations filed on June 2, 1997 in support of Plaintiffs' opposition to Defendants' motion for summary judgment. “Leventhal 3 Decl.” refers to Leventhal's supplemental declaration filed on June 9, 1997 in support of Plaintiffs' motion for summary judgment. 2 According to O'Neill, she omitted the following statement from her remarks: “It is my understanding that in the last two school districts Dr. Gyves has worked in, monies have been paid to him in order to break his contract, due to similar budget problems. In my opinion if this were the past history of Dr. Gyves it would suggest a pattern of behavior.” (O'Neill 2 Decl., ¶ 4.)
3 For instance, Mary Bristol, mother of five former and two current students in the district, has submitted a declaration describing her participation in the March 20, 1997 Board meeting. At that meeting, Bristol expressed her concerns about Gyves's support for a proposal to redraw the District's boundary lines. (Bristol Decl., ¶ 5.) According to Bristol, Gyves denied that he had endorsed the proposal, “attack[ing]” Bristol's credibility and referring to her remarks as “bizarre” and “about typical of the accuracy of your statements historically.” (Id. ¶ 6.) Bristol states that Hubbard, the Board President, made no effort to restrain Gyves's comments, “despite the fact that Mr. Hubbard has repeatedly silenced several members of the public who have attempted to criticize Dr. Gyves and various Board members at recent Board meetings.” (Id. ¶ 9.) Bristol concludes, “Based on Mr. Hubbard's continuing enforcement of Bylaw No. 9002, I now refrain from speaking openly at public Board meetings about my concerns and criticisms regarding the District Superintendent's qualifications and performance.” (Id. ¶ 10.)
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 11 In addition, Leonard Rosen alleges in his declaration that at the March 20 Board meeting he attempted to respond to Vervynck's remarks about Leventhal, stating to the Board, “I have never been more horrified or shocked than I was at the last meeting of this Board. The way that you—Ms. Vervynck—used your office to attack a member of this community.” (Rosen Decl., ¶ 7.) Hubbard stopped Rosen and warned him that “personally challenging a board member” was prohibited. Rosen refused to continue under those restrictions. (Id.) The Board has since declared that criticism of Board members, as opposed to employees of the District, is permitted under the Bylaw. 4 Although it conceivable that, on its face, the Bylaw regulates only formal charges filed against District employees, the District has read the Bylaw to cover even informal criticism about the employees. The Court will accept this interpretation of the Bylaw as accurate. See, e.g., Smiley v. Citibank, 517 U.S. 735, ––––, 116 S.Ct. 1730, 1733, 135 L.Ed.2d 25 (1996) (noting deference accorded to agency interpretation of its own regulations). 5 That section provides in relevant part:
In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot by restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.
Cal. Gov't Code § 54957.9.
6 That section reads in relevant part:
Any member of the public who desires to place a matter for information or action on the agenda of an open Board meeting shall notify the Superintendent in writing at least nine working days before any regular meeting. The written notification shall specify the matter and include any relevant background information. The Superintendent shall determine whether the specific matter is directly related to the business of the district or is appropriate for an open Board meeting. The Superintendent will provide a written response to the person requesting the item with a copy to Board members. Any decision by the Superintendent not to place a requested matter on the agenda may be appealed in writing to the Board. The appeal will be placed on the agenda of the next regular meeting for action by the board.
Bylaw, § A.
7 The Court corrects its June 18, 1997 order and notes that the public's right to speak at open school board meetings includes the right to place school matters on the agenda of those meetings. Cal. Educ.Code § 35145.5. As discussed below, however, the Court still finds Bylaw § A to be a permissible mechanism for determining, prior to an open Board meeting, whether a proposed agenda item is “directly related to school district business.” Id. 8 The Court notes that while a matter may be placed on the agenda for public comment, it may not necessarily be “appropriate” for the Board to discuss the comments raised. For example, the public may wish to be heard on pending litigation or contract negotiations, but the Board members may choose not to respond to protect lawyer-client privileged communications or bargaining positions.
9 Although the Court grants Defendants' motion in part by dismissing Defendant District and dismissing the supplemental state law claims as to all Defendants, the Court finds that Plaintiffs have overwhelmingly prevailed on the core elements of their action, and there will be no apportionment as to any costs and attorneys' fees the Plaintiffs seek to recover, except as to the time spent for researching and briefing the propriety of naming the District as a Defendant. See Odima v.
Westin Tucson Hotel, 53 F.3d 1484, 1499 (9th Cir.1995). The Court having dismissed the District as a party, the Plaintiff is not entitled to fees in this regard. See Hensley v. Eckerhart, 461 U.S. 424, 434–37, 103 S.Ct. 1933, 1939–41, 76 L.Ed.2d 40 (1983).
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 12 End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. 208
Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996) 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment
Distinguished by Olson v. Hornbrook Community Services District, Cal.App. 3 Dist., July 15, 2019 936 F.Supp. 719
United States District Court,
C.D. California,
Eastern Division.
Victoria BACA, Plaintiff,
v.
MORENO VALLEY UNIFIED SCHOOL DISTRICT; School Board
President Frank M. West, in His Official and Individual Capacity, Defendants.
No. EDCV 96–0267 RT (VAPx).
|
Aug. 1, 1996.
Synopsis
Citizen sought preliminary injunction to prevent school district and president of school board from enforcing district's policy prohibiting, at open sessions of school board meetings, comments which include charges or complaints against any district employee, regardless of whether employee was identified. The District Court, Timlin, J., held that: (1) under California Constitution, board could not censor speech even if speech was, or might be, defamatory; (2) under California statutes, open session of school board meeting was a designated, limited public forum; (3) though state could limit subject matter to be discussed at limited public forum, it could not limit views which might be expressed on that subject matter, and regulation of speech in such a forum is subject to the same standard which applies to regulation of speech in a traditional public forum; (4) policy at issue contained content-based prohibitions; (5) district's interest in making sure that members of public could not complain about school district employees in a forum where comments would be privileged under California law did not outweigh public's interest in being able to freely express themselves to their elected officials; (6) district employees' right to privacy could not be used to justify the policy; (7) complaints by member of public about district employees, even if defamatory, legally could not cause deprivation of employees' protected liberty interest, so that policy could not be justified on ground of protecting that interest; (8) policy could not be upheld on ground of district's interest in regulating its own meetings, on ground of secondary effects of the prohibited speech, or on the ground of protecting unwilling listeners; and (9) policy was not justified on theory that there were alternative means of communication.
Motion granted.
Procedural Posture(s): Motion for Preliminary Injunction.
Attorneys and Law Firms
*724 Carol A. Sobel, Mark D. Rosenbaum, Los Angeles, CA, Douglas E. Mirell, Los Angeles, CA, for plaintiff.
Spencer E. Covert, Mark S. Williams, Parker, Covert & Chidester, Tustin, CA, for defendants.
ORDER GRANTING PLAINTIFF VICTORIA BACA'S MOTION FOR A PRELIMINARY INJUNCTION TIMLIN, District Judge.
209
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 Plaintiff Victoria Baca's (plaintiff's) motion for a preliminary injunction (motion) to enjoin the Moreno Valley Unified School District (District), Frank M. West (West), the president of District's school board (collectively defendants), and defendants' agents and employees from enforcing certain provisions of District's policy related to speech at school board meetings, was heard by the Honorable Judge Robert J. Timlin.
The court having taken the matter under submission, and after consideration of oral argument and all papers presented to the court, the court grants plaintiff's motion for the reasons set forth in the following opinion.
I.
PROCEDURAL HISTORY
Plaintiff has filed a verified complaint for injunctive and declaratory relief and damages against defendants. The complaint seeks a declaration that:
(1) District's policy, which prohibits criticism of District employees during the open sessions of District's school board meetings (the policy), is an overbroad and impermissible prior restraint on plaintiff's and other citizens' rights of free speech and petition *725 under the constitutions of the United States and California; (2) the school board's (Board's) selective enforcement of the policy was a violation of plaintiff's right to be free of arbitrary and capricious enforcement of a governmental regulation under the constitution of the United States; and (3) the policy is a violation of plaintiff's right publicly to share her criticisms of school administration with the Board and concerned community members pursuant to California Government Code section 54954.3, a code section found in California's open meeting law, commonly known as the Ralph M. Brown Act (Brown Act). Cal.Govt.Code, §§ 54950 et seq. 1 Plaintiff also filed an ex parte application for a temporary restraining order and for an order to show cause re the issuance of a preliminary injunction enjoining defendants and their agents and employees from enforcing against plaintiff the provisions of District's policy which permitted West, as the Board president, “to deny permission to speak in the public session portion of the Board meeting to any person who mentions, by name or mere title, any public employee of the defendant school board.” This court filed an order (1) restraining defendants and their agents, employees and successors from applying and enforcing the policy during the public forum session of Board meeting and (2) requiring defendants to appear to show cause why they should not be so enjoined.
Following oral argument at the hearing on the order to show cause, the parties stipulated that the temporary restraining order could be extended until August 6, 1996, and that each side would provide the court with briefing on whether the policy applied to all public comments during the public, or open, as opposed to the executive, or closed, session of all District's Board meetings, or applied only to the public comment period of such open sessions, and whether the relief requested by plaintiff encompassed comments made during the open session of Board meetings, or only encompassed comments made during the public comment period.
Having considered such further briefing, the court concludes that the policy, by its terms, applies to all public comments during open sessions of the Board meetings. The court further concludes that the relief requested by plaintiff, i.e., a declaration that the policy suffers from the defects noted above, encompasses the policy as it applies to all such public comments. 210
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 II.
FACTUAL BACKGROUND
District's policy provides, in pertinent part:
“Open Session Charges or Complaints Against Employees ... Prohibited. “1. Employees.
“No oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee.
If an attempt is made to include charges or complaints against an employee in any way, the Board President will order the presentation stopped at once, and the Board meeting will continue in accordance with the established agenda. All charges or complaints against employees must be submitted to the Board under provisions of Board policy. “Any individual who violates this policy will be warned to discontinue his/her comments immediately. If the individual willfully interrupts the meeting by refusing to comply with the warning, the Board President may authorize the removal of the individual pursuant to Government Code section 54957.9.” 2
*726 According to plaintiff's declaration, plaintiff is the parent of a student in the MVUSD, and is president of the Mexican Political Association (MPA) a statewide community activist organization. On May 28, 1996, she attended an open meeting of District's Board. This meeting included a public comment period during which citizens could comment on matters not necessarily included on the Board's meeting agenda.
During the public time period allotted for her comments, plaintiff identified by name and by reference to position two District employees: David Kuzmich, principal of Vista Heights Middle School (Kuzmich), and David Andrews, District's superintendent (Andrews), and alleged that numerous complaints brought to them by parents of children at Vista Heights Middle School went unaddressed. As she spoke, plaintiff was informed by West that she could not mention either employee by position or by name, and that another violation of the policy would result in her removal from the meeting.
Plaintiff continued her remarks and again referred to Kuzmich by position and to Andrews by position and name. She was then physically removed from the meeting by a Riverside County sheriff's deputy at the request of West. Once removed from the meeting, she was watched over by two sheriff's deputies to ensure that she did not attempt to go back into the meeting room.
Plaintiff was the only speaker to be physically removed from the room. However, other members of the public who spoke before and after plaintiff did also identified District employees by name and/or position, sometimes in a critical manner. Although some of those who spoke after plaintiff did were warned by West not to violate the policy, they were not removed.
Plaintiff states that she desires to “learn of shared concerns from other speakers and to allow them to learn of mine through use of the public comment period of the school board meeting.” (Plaintiff's Declaration, p. 4, ¶ 10.) She states that she believes she was singled out for expulsion because of her outspokenness and because of her political activities related to educational and other school-related issues.
III.
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 4
DISCUSSION
A. Criteria for Issuance of a Preliminary Injunction
The traditional criteria which must be met before a preliminary injunction will issue are: (1) strong likelihood of success on the merits; (2) possibility of irreparable injury to plaintiff if relief is not granted; (3) a balance of hardships favoring plaintiff; and (4) advancement of the public interest in certain kinds of cases. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200–1201 (9th Cir.1980). In the Ninth Circuit, a party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Id. at p. 1201.
These are not separate tests, but the outer reaches of a single continuum. Id. The moving party has the burden of proof on each element of either test. Prescott v. County of El Dorado, 915 F.Supp. 1080, 1084 (E.D.Cal.1996). Applying the traditional criteria for issuance of a preliminary injunction to the facts of this case, the court concludes, as discussed below, that the plaintiff has met all four criteria, and that a preliminary injunction should issue.
B. Plaintiff Has Demonstrated a Strong Likelihood of Success on the Merits Plaintiff has demonstrated that there is a strong likelihood that she will succeed on the merits, i.e., that she will succeed in establishing that: (1) speech criticizing District employees is protected from prior restraint or *727 censorship by the freedom of speech components of the United States and California constitutions; (2) the open session of a school board meeting is a designated and limited public forum pursuant to the Brown Act; (3) regulations of speech in such fora must meet the same constitutional standards as must regulations of speech in traditional public fora; and (4) the policy is content-based, not narrowly drawn to effectuate compelling state interests, and therefore is facially unconstitutional.
1. Speech Criticizing a District Employee, Even If Later Proved to Be Defamatory, Is Protected by Both the California 3and Federal Constitutions from Government Censorship and Prior Restraint Plaintiff contends that the policy is a prior restraint on protected expression, and as such it violates the California Constitution.
Defendants suggest that plaintiff's speech “regarding child abusers and racists” is not protected by the First Amendment because it is slanderous and is a “false light utterance[ ],” and that therefore District has a right to prohibit these statements. (Defendants' Supp. Opposition, p. 3.)
Neither side is correct. Plaintiff is wrong because the policy, which merely prohibits certain speech by persons already admitted to and making use of a public forum, is not a true or classic prior restraint, because it does not give a public official the power to deny use of the forum in advance of the actual expression. Westbrook v. Teton County School Dist. No. 1, 918 F.Supp. 1475, 1481–1482 (D.Wyo.1996) (Westbrook ). Instead, the policy is a species of censorship, i.e., a “present government interference with or suppression of expression” accomplished through a “ ‘regulatory, proscriptive or compulsory’ exercise of governmental power.” Keene v. Meese, 619 F.Supp. 1111, 1118 (E.D.Cal.1985), quoting Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324–2325, 33 L.Ed.2d 154 (1972). Defendant is wrong because neither the United States nor California constitution allows government to censor statements merely because they are false and/or defamatory.
The California Constitution, article I, section 2 provides, in relevant part: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” This provision provides an even broader guarantee of the right of free speech than does the First Amendment. Blatty 212
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 v. New York Times Co., 42 Cal.3d 1033, 1041, 728 P.2d 1177, 1182, 232 Cal.Rptr. 542, 546–547 (1986); Wilson v. Superior Court, 13 Cal.3d 652, 658, 532 P.2d 116, 119 Cal.Rptr. 468 (1975); Gilbert v. National Enquirer, Inc., 43 Cal.App.4th 1135, 1145, 51 Cal.Rptr.2d 91 (1996). “ ‘The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen[s] to freely speak, write and publish [their] sentiments is unlimited, but [they are] responsible at the hands of the law for an abuse of that right. [They] shall have no censor over [them] to whom [they] must apply for permission to speak, write, or publish, but [they] shall be held accountable to the law for what [they] speak[ ], what [they] write[ ], and what [they] publish [ ].’ [Citation.]” Aguilar v. Avis Rent–A–Car System, Inc., 45 Cal.App.4th 933, 973, 53 Cal.Rptr.2d 599 (1996), Peterson, P.J., concurring in part and dissenting in part, quoting Dailey v. Superior Court, 112 Cal. 94, 97, 44 P. 458, 459 (1896).
Thus, under the California Constitution, District's Board may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory. 4 Therefore, regardless of any lesser protection *728 for speech provided by the United States constitution 5, there is a strong likelihood that plaintiff will establish that she is entitled to a declaration that District cannot prohibit speech on the ground that it is, or may be, false or defamatory, let alone on the the ground that it is negatively critical of District's employees. 6
2. The Open Session of a School Board Meeting Is a Designated, Limited Public Forum Traditional public fora are places such as parks and streets, which historically have been used for purposes of public assembly.
Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954–955, 74 L.Ed.2d 794 (1983) (Perry ). A designated, as opposed to a traditional, public forum is a public forum created by government designation as “a place or channel of communication for use by the public at large....” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 803, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) (Cornelius ); Perry, 460 U.S. at 45 and 46, fn. 7, 103 S.Ct. at 955, fn. 7, 74 L.Ed.2d 794 (1983).
Access to a designated public forum may be limited by the government if it designates public property as available only for “use by certain speakers, or for the discussion of certain subjects, ...” Cornelius, 473 U.S. at 803, 105 S.Ct. at 3449, supra; Perry, 460 U.S. at 45, n. 7, 103 S.Ct. at 955, n. 7; Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (forum limited to student groups); City of Madison Joint Sch. Dist. v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (forum limited to subject matter of school board business). 7 If the state does limit access to the forum based on *729 subject matter or speaker identity, access limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral. Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384, 392–393, 113 S.Ct. 2141, 2147, 124 L.Ed.2d 352 (1993) (Lamb's Chapel ).
The State of California has designated certain public property for use as public fora. Under the Brown Act, the meetings of certain public bodies must be open to the public, § 54953 8, and the public must be allowed to speak at such meetings “on any item of interest to the public, ... that is within the subject matter of the legislative body, ...” § 54954.3. 9 The Brown Act applies to school districts and to school boards. §§ 45951, 54952 10 ; see Frazer v. Dixon Unified Sch. Dist., 18 Cal.App.4th 781, 790–791, 22 Cal.Rptr.2d 641, 648–649 (1993). 213
Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996) 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 Thus, by opening school board meetings to public comment “on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body,” Govt.Code, § 54954.3(a), the California Legislature has designated school board meetings as limited public fora, i.e., fora open to the public in general, but limited to comments related to the school board's “subject matter.” Therefore, the open sessions of District's Board meetings are limited public fora, and any regulation of speech in such fora must be reviewed in light of the nature of the fora. 11
3. The Same Constitutional Standards of Scrutiny Apply to the Regulation of Speech in The Limited Public Forum of an Open Session of a School Board Meeting As Apply to the Regulation of Speech in a Traditional Public Forum Defendants contend that when a limited public forum is involved, the applicable standard of constitutional analysis is not the strict scrutiny or compelling interest test applied to traditional public fora, citing White v. City of Norwalk, 900 F.2d 1421, 1423 (9th Cir.1990). Notably, however, defendants never clearly state what test does apply when a court decides the constitutionality of a policy which regulates or prohibits certain speech in a limited public forum.
Defendants' lack of clarity can be traced to the fact that defendants have confused *730 two different principles, i.e., they have confused the rule that when the state creates a limited public forum it properly may limit the subject matter to be discussed with the rule that once the particular subject matter which may be discussed in a particular limited forum has been designated, the government may not then also limit the views which may be expressed on that subject matter. Lamb's Chapel, 508 U.S. at 392–393, 113 S.Ct. at 2147, supra. Thus, in White v. City of Norwalk, the case cited by defendants, the court held that although city officials properly could restrict public speakers to the subject matter at hand, i.e., the particular agenda item being discussed, and could stop speech which was unrelated to the subject matter and hence irrelevant, the city officials could not cut off speech because the moderator disagreed with the view expressed. 900 F.2d at 1424–1425.
Thus, contrary to defendants' contention, the applicable standard of review for testing the constitutionality of regulations of speech in a designated, limited public forum is the same standard which applies to regulation of speech in a traditional public forum. Perry, 460 U.S. at 45–46, 103 S.Ct. at 955. This means that even in a limited public forum, before the state can enforce “[any] content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,” and that although “[r]easonable time, place and manner regulations are permissible,” they must be “content-neutral, ... narrowly tailored to serve a significant government interest, and leave open ample channels of communication. [Citations.]” Id.; Clark v. Burleigh, 4 Cal.4th 474, 483, 841 P.2d 975, 980, 14 Cal.Rptr.2d 455, 460, supra; see also 4 Rotunda & Nowak, Treatise on Constitutional Law (2d ed. 1992) § 20.47 at p. 311.
4. The Policy Contains Content–Based Prohibitions
District's policy clearly contains content-based prohibitions on speech, despite defendants' assertions to the contrary. It forbids, at the risk of expulsion from the forum, speech which contains any “charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee.” (Emphasis added.) It is difficult to imagine a more content-based prohibition on speech than this policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter (District employees' conduct or performance). Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 1850, 119 L.Ed.2d 5, 13 (1992) (“[T]he First Amendment's hostility to content-based regulation extends ... to a restriction on a particular viewpoint.... [Citations]”); see also Lamb's Chapel, 508 U.S. at 392–393, 113 S.Ct. at 2147, supra. In fact, policies which attempt to suppress or burden only critical speech are regularly held to be content-based. See, e.g., Westbrook 214
Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996) 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 v. Teton County School Dist. No. 1, 918 F.Supp. 1475, 1494, (D.Wyo.1996), holding that a school district's policy, which limited and restricted teachers' speech criticizing other staff members, administrators or school board members by restricting the audience to which such criticisms could be directed, was content-based because it distinguished between favored and disfavored speech on the basis of the views expressed; Rubin v. City of Santa Monica, 823 F.Supp. 709, 713 (C.D.Cal.1993), holding that an ordinance granting greater First Amendment rights to “speakers who support ‘the human services objectives of the City’ ” (emphasis added) was impermissibly content-based. Cf. Feminist Women's Health Center v. Blythe, 32 Cal.App.4th 1641, 1662, 39 Cal.Rptr.2d 189, 199 (1995): “A restriction against activities within a given area is content neutral, as it makes no reference to the issues or viewpoints raised. [Citations.]” (Emphasis added.)
5. The Policy Is Not Narrowly Drawn to Effectuate a Compelling State Interest Defendants contend that the policy serves three “important” and “significant” government interests: (a) the privacy interests of District's employees (Defendants' Opposition *731 at p. 17), (b) the liberty interests of District's employees (Defendants' Opposition at p. 17–18), and (c) the right of the Board “to regulate its own meeting and structure the flow of information in a manner insuring that all concerned may participate and review the information in an informed and dispassionate manner.” (Defendants' Opposition, p. 20.)
Notably, with one exception, defendants do not contend that these interests are “compelling.” That exception is that defendants do contend that because defamatory statements made during open sessions of Board meetings are absolutely privileged under California Civil Code section 47(b)(3), and because its employees cannot maintain defamation actions to prevent such statements being made to the Board, it has a compelling interest in prohibiting such statements during open sessions, and instead requiring complaints and charges against employees to be made in writing, apparently as part of an administrative process, or to be made to the Board in closed session. (Defendants' Supp. Opposition at pp. 9–10.) When, as here, a regulation is content-based, the governmental interest served by the regulation must be compelling, not merely important or significant, if the regulation is to withstand constitutional scrutiny. Perry, 460 U.S. at 45–46, 103 S.Ct. at 955. It is a well-known attribute of constitutional law that balancing tests use specific terms of art to express the nature and/or weight of the interests which must be balanced against each other. Cf., e.g., Mississippi University for Women v.
Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982) (constitutionality of gender-based discrimination weighs “important” governmental interests); Perry, 460 U.S. at 45–46, 103 S.Ct. at 955 (content-based exclusion requires “compelling” state interest; content-neutral time, place and manner regulations must serve “significant” government interest).
Therefore, defendants' failure to assert, save for the one exception noted above, that District's interests are “compelling” is significant.
As to this one exception, whether a particular governmental interest is “compelling” is never determined in a vacuum. Instead, it is measured in a particular context against the competing private interest at stake. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972) (“there [must be] a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause”); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672, 109 S.Ct. 1384, 1394, 103 L.Ed.2d 685 (1989) (“these [privacy] expectations [of certain Customs employees required to undergo drug-screening as a condition of transfer or promotion into certain types of positions] [do not] outweigh the Government's compelling interests in safety and the integrity of our borders.” The circumstances of this case are such that the court concludes that District's interest in making sure that members of the public cannot complain about school district employees in a forum where their comments would be privileged does not outweigh the public's interest in being able freely to express themselves to their elected officials on all issues related to the operation of public schools without fear of being subjected to tort liability. That the public's interest outweighs District's claimed interest is made abundantly clear by these facts:
215
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 (1) the California Legislature enacted specific legislation providing members of the public with a privilege to protect them from the chilling effect of the threat of litigation in such fora; (2) the Brown Act provides that the public have a right to speak in such fora, so long as such speech is within the subject matter of the school board; and (3) the California Constitution, as discussed above, prevents censorship of even defamatory speech. 12 a. District's Employees' Right to Privacy
Even assuming for the sake of argument that District were to characterize its interest in protecting its employees' right to privacy *732 as compelling, such interest cannot be used to justify the policy for two reasons.
First, District's interest in protecting its employees' right of privacy is an interest it holds only as an employer, not as a government entity, e.g., a legislative body charged with permitting public comment at its meetings. Thus, its interest as an employer in protecting its employees' right to privacy cannot be characterized as a compelling governmental interest. 13 See Waters v. Churchill, 511 U.S. 661, ––––, 114 S.Ct. 1878, 1887–1888, 128 L.Ed.2d 686 (1994) discussing difference between government's interest as a sovereign versus its mission as an employer.
Second, even if District's interest in protecting its employees' right to privacy could be characterized as a governmental interest, District's reliance on such interest presupposes that District's interest in asserting its employees' constitutional right to privacy is so compelling that it trumps the public's First Amendment right to make public comments, negative or otherwise, about such employees' behavior. This is a questionable supposition. See, e.g., Carey v. Brown, 447 U.S. 455, 466–467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980), noting that there is a hierarchy of First Amendment values, and that “ ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ [Citations.]” With due respect to the District's employees' right to privacy under both the California and federal constitutions, under these circumstances such right must give way to the more fundamental constitutional right of freedom of expression under both constitutions.
Third, even if District's policy is intended to protect a compelling governmental interest, it is not narrowly drawn to effectuate such interest, and is both over-inclusive and under-inclusive as to the speech it prohibits.
The policy is over-inclusive because it forbids all complaints against District employees, even when they are not identified by name or position 14 , and because it forbids all criticism of specific employees even when such criticism would not constitute an invasion of privacy. “ ‘[A] crucial ingredient of the tort [of invasion of privacy] is a public disclosure of private facts [citations], that is, the unwarranted publication of intimate details of one's private life which are outside the realm of legitimate public interest [citation].... there can be no privacy with respect to a matter which is already public [citation] or which has previously become part of the public “domain” [citation]. Moreover, ... there is no liability when the [speaker] merely gives further publicity to information about the [person who is the *733 subject of discussion] which is already public or when the further publicity relates to matters which the plaintiff leaves open to the public eye [citation].’ [Citation.]” Gilbert v. National Enquirer, Inc., 43 Cal.App.4th at 1149, 51 Cal.Rptr.2d at 99, supra. The policy forbids public disclosure of any criticism, regardless of whether the criticism reveals private facts about the employee, or merely expresses the speaker's opinion about the employee's performance or conduct as a public employee or involves matters which the employee has revealed in the classroom, administrative meetings, or other arenas open to public scrutiny.
The policy is under-inclusive because it does not forbid speech which does disclose intimate details of a District employee's private life but which does not do so in a critical or negative manner. 216
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 9 Because the policy does not forbid all speech which might invade District employees' right to privacy, and forbids other speech which would not constitute an invasion of privacy, it is clear that the policy is not narrowly drawn to effectuate District's alleged interest in protecting its employees' right to privacy. b. District's Employees' Liberty Interest
District also contends that it has a compelling interest in protecting its employees' constitutional liberty interests, i.e., its employees' right to notice and an opportunity to be heard, although District is none too clear about what event triggers such right to notice and an opportunity to be heard in this particular case. As discussed below, the normal rule is that a public employee must be given notice and an opportunity to be heard before stigmatizing governmental action, e.g., dismissal or demotion, is taken; District's position seems to be that its employees are entitled to advance notice and an opportunity to be heard about any critical comment about an employee made by a member of the public to the Board.
Assuming for the sake of argument that District has a compelling governmental interest in protecting its employees' liberty interest, and assuming further that it can assert such interest as an employer to justify a regulation related to its legislative functions—debatable assumptions as discussed above—nonetheless its interest in protecting its employees' liberty interests cannot be used to justify a policy prohibiting speech by members of the public, because prohibiting such speech does not effectuate the desired purpose of protecting employees from a deprivation of their liberty interests.
To establish a deprivation of a protected liberty interest in the employment context, an employee must demonstrate that he or she was denied due process in connection with stigmatizing governmental action which action so negatively affects his or her reputation that it effectively forecloses the opportunity to practice a chosen profession. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573–574, 92 S.Ct. 2701, 2707–2708, 33 L.Ed.2d 548 (1972); Cafeteria & Rest. Wkrs. U., Local 473 v. McElroy, 367 U.S. 886, 894–896, 81 S.Ct. 1743, 1748–1749, 6 L.Ed.2d 1230 (1961).
Because only the government, i.e., the employee's employer, can provide the employee with due process related to the government's threatened stigmatizing action, it follows that one who is not the employee's employer can not directly deprive the employee of due process. Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d 1041, 1044 (9th Cir.1994). Such a third party can only be liable to the employee if the employee can show that the third party could reasonably foresee that the third party's statements to the governmental employer would cause the employee to be terminated without a pre-termination or nameclearing hearing. Id. Critical or even defamatory statements about the employee by third parties, in and of themselves, also cannot constitute deprivation of a constitutionally-protected liberty interest because injury to one's reputation, without more, is not enough to state a claim for loss of liberty in violation of the constitution. Siegert v. Gilley, 500 U.S. 226, 233–234, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277 (1991); WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1319 (9th Cir.1996); Gini v. Las Vegas Metropolitan Police Dept., 40 F.3d at 1045, supra. *734 Therefore, because complaints by members of the public about District employees, even if defamatory, legally cannot cause a deprivation of the employees' protected liberty interest, a policy forbidding such complaints cannot be justified by merely claiming that the complaints have such effect.
c. District's Interest in Regulating Its Own Meetings
District also contends that the policy is justified because of its interest in regulating its meetings. Indeed, a school board can ensure an orderly discussion and exchange of information by regulating the time, place, and manner for speech at its meetings, and may also require speakers to confine themselves to comments within the school board's subject matter. See footnote 9, ante. 217
Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996) 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 10 Here, the Board has done so in a portion of its policy entitled “Agenda/Meeting Materials” as recited in pages 44 through 49 of Exhibit A to Defendants' Opposition. Such regulation of conduct, e.g., by setting time limits and providing that speakers who actually disrupt a meeting may be removed, without focusing on the content of speech, is reasonable. Perry, 460 U.S. at 45– 46, 103 S.Ct. at 955. But the policy here, which focuses on content and not only conduct, is not narrowly drawn so as to achieve District's purported compelling interest without impinging upon the public's First Amendment rights, which rights include the right to be passionate and even uninformed in the expression of one's views. 15
6. The Policy Cannot Be Justified on the Ground of the Secondary Effects of the Prohibited Speech or on the Ground that “Unwilling Listeners” in the Audience Must Be Protected from Hearing Negative Comments about the District's Employees Defendants also contend they may regulate the content of speech at Board meetings because of the prohibited speech's secondary effects, citing Aguilar v. Avis Rent–A–Car System, Inc., 45 Cal.App.4th 933, 53 Cal.Rptr.2d 599, supra. In Aguilar, the appellate court reversed an injunction enjoining a supervisory employee “ ‘from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis....' ” 45 Cal.App.4th at 937, 53 Cal.Rptr.2d at 602. Although the court concluded that the injunction was not content-based and was constitutional because it targeted “conduct amounting to employment discrimination as a ‘secondary effect’ of such speech within the meaning of R.A.V. v. St. Paul (1992) 505 U.S. 377 [120 L.Ed.2d 305, 112 S.Ct. 2538]”, and did not target the expressive content of the speech, 45 Cal.App.4th at 937, 53 Cal.Rptr.2d at 601–602, it also concluded the injunction was over-broad to the extent it attempted to enjoin conduct committed outside the workplace, and accordingly reversed and remanded the cause for modification. Id. at p. 938, 53 Cal.Rptr.2d at p. 602.
Notably, defendants never identify the conduct amounting to a secondary effect allegedly caused by the speech they seek to prohibit. For example, defendants do not contend that criticism of District employees by members of the public speaking at a Board meeting constitute employment discrimination, the secondary effect discussed in Aguilar, possibly because such comments do not involve “[f]requent or pervasive workplace use of ... slurs resulting in an abusive work environment....” 45 Cal.App.4th at 943, 53 Cal.Rptr.2d at 605, emphasis added.
Furthermore, even assuming that citizens' statements made in the open session of a Board meeting could be considered to involve “workplace use” of language, a questionable assumption at best, the policy here *735 would be overbroad—it does not simply prohibit derogatory racial, sexual, ethnic and similar slurs related to categories protected under Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e–2(a)(1)) and the Fair Employment and Housing Act (Cal.Govt.Code, §§ 12900 et seq.), but instead bans all criticism, no matter how politely phrased.
District also contends that it has an important interest in controlling complaints and charges against employees during its meetings because other persons attending Board meetings are “unwilling listeners,” who do not have the option of refusing to listen to the speaker's negative comments. Defendants cite Martin v. City of Struthers, 319 U.S. 141, 147–148, 63 S.Ct. 862, 865–866, 87 L.Ed. 1313 (1943) for this proposition. Martin v. City of Struthers is of no assistance to defendants. In that case, a city adopted an ordinance which made it an offense to summon the inhabitant of a home to the door when distributing handbills, advertisements, or other circulars. The Supreme Court held that the ordinance violated the First Amendment, and noted that the decision as to whether a particular householder wished to discuss the information being disseminated by door-to-door canvassers should be left to the will of the individual occupant, not usurped by the government making a decision for all its inhabitants. 218
Baca v. Moreno Valley Unified School Dist., 936 F.Supp. 719 (1996) 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865
© 2022 Thomson Reuters. No claim to original U.S. Government Works. 11 Here, District's policy, to the extent it is claimed to be justified as necessary to protect “unwilling listeners” at Board meetings, suffers from a similar infirmity. District has assumed that every person at its meetings does not want to hear complaints and criticisms about District employees, just as the City of Struthers assumed that all of its inhabitants did not want to be summoned to their doors for a possible exchange of information. There is no evidentiary basis for such an assumption here, any more than in Martin v. City of Struthers.
Furthermore, the concept of protecting the “unwilling listener” is tied to residential privacy. Frisby v. Schultz, 487 U.S. 474, 484–485, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420 (1988). In locations other than their private residences, individuals are expected “simply to avoid speech they do not want to hear, [citations], ...” Id. Thus, at a Board meeting, it is up to the individual members of the audience to decide whether they want to listen to complaints and criticisms of District employees, and, if they choose not to listen, they are free to leave.
7. The Presence of Alternative Means of Communication Between Plaintiff and the Board, or Between Plaintiff and Other Members of the of Public, Does Not Justify or Validate the Otherwise Unconstitutional Policy Defendants contend that the policy does not prohibit plaintiff from addressing the Board, and that instead they are merely regulating when and how she may do so if she wants to express complaints against District employees. They contend that she may speak to them through District's complaint resolution process, and that she may speak to them during closed sessions. They also point out that she may address the public orally or in writing without recourse to the Board meeting as a forum. Based on these alternative channels of communication, and on their further contention that the regulation is content neutral and narrowly drawn, they contend the policy passes any constitutional test.
However, the court has determined that the Board's policy is not content-neutral and that it is not narrowly drawn to accomplish even District's purported compelling interests. It therefore is irrelevant whether or not plaintiff and speakers with a similar point of view have ample alternative channels of communication. “One is not to have the exercise of [one's] liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. New Jersey, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939). In other words, “An otherwise invalid restriction on protected activity is not saved by the availability of other means of expression. [Citation.]” Pref. Communications v. City of Los Angeles, Cal., 754 F.2d 1396, 1410 (9th Cir.1985), cert. granted, City of Los Angeles v. Pref. Communications, 474 U.S. 979, 106 S.Ct. 380, 88 L.Ed.2d 333 (1985), jmt. aff'd and remanded, *736 City of Los Angeles v. Pref. Communications, 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), appeal after remand, Pref. Communications v. City of Los Angeles, 13 F.3d 1327 (1994), cert. denied, Pref. Communications v. City of Los Angeles, 512U.S. 1235, 114 S.Ct. 2738, 129 L.Ed.2d 859 (1994); H–CHH Associates v.
Citizens for Representative Government, 193 Cal.App.3d 1193, 1213, 238 Cal.Rptr. 841 (1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988) (“A regulating authority may not adopt rules which preclude the exercise of free expression in an appropriate place, even on the ground another place is available. [Citations.]”). As discussed above, the open session of a school board meeting is a legally proper place for citizens to voice their complaints about a school district's employees. The policy is an invalid restriction on speech at such meetings, and the fact that plaintiff and others critical of District employees may speak in closed sessions, in public, or even on the schoolhouse steps, does not validate the otherwise invalid policy.
Furthermore, even if this court had concluded that the policy was content-neutral or content-based but narrowly drawn to achieve some compelling governmental interest, the proffered “alternative” channels of communication are not equivalent to the forum from which District seeks to exclude plaintiff and others with views critical of District's employees.
While no single case sets out a definitive list of the specific elements to be considered in determining what constitutes the requisite “ample alternative channels of communication,” Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984), the cases do indicate that such channels must be equivalent to the proscribed forum, i.e., they should (1) give the speaker the same opportunity to communicate information to the audience about the speaker's 219
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 12 identity (because the identity of the speaker is an important component of many attempts to persuade), City of Ladue v.
Gilleo, 512 U.S. 43, ––––, 114 S.Ct. 2038, 2046, 129 L.Ed.2d 36 (1994), (2) be similarly inexpensive and convenient as the proscribed channel, id., (3) allow access to the same audience, and (4) be a similarly effective method for communicating the message. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 517, 101 S.Ct. 2882, 2897, 69 L.Ed.2d 800 (1981), quoting Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 93, 97 S.Ct. 1614, 1618, 52 L.Ed.2d 155 (1977).
Additionally, although the cases do not specifically so state in the context of what constitutes ample alternative channels of communication, an alternative channel of communication is not sufficiently equivalent to the proscribed forum if forcing the speaker to resort to it is more likely to have a chilling effect on speech. Lamont v. Postmaster General, 381 U.S. 301, 309, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (conc. opn.) (“[I]nhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government”); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 637, 9 L.Ed.2d 584 (1963) (First Amendment violated when state attempts to achieve the suppression of speech it deems objectionable through means other than formal sanctions); American Communications Ass'n v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950) (indirect discouragements are fully capable of a coercive effect on speech).
In light of the above-noted elements related to alternative channels of communication, it is apparent that the alternative channels of communication suggested by District are not equivalent to the forum provided by the open session of the Board meeting.
First, although the present administrative process provided by the Board for a person who files a complaint with District against a District employee appears to provide at some point in the process an opportunity for the complainant to address the Board about such complaint in closed session, the complainant could not reach the same audience which she or he could reach in an open session of the Board, i.e., other interested members of the general public. After all, closed sessions, by their very nature, are not open to the general public as are the open sessions of school board meetings. Furthermore, requiring all speech critical of District employees to occur *737 during closed sessions not only tends to restrict the audience which the speaker may reach, but also restricts the information available to the general public, a result clearly contrary to that intended by the Brown Act. 16 Second, although speakers have a right to speak in public or even on the sidewalk in front of the Board's meeting place, which right is unfettered by need to request permission from District or its board, any speech there, as opposed to speech in the Board meeting, is not protected by California Civil Code, section 47(b)(3), which provides that publications made in any official proceeding authorized by law are privileged. 17 Thus, comments made outside the Board meeting may subject the speaker to the threat of litigation, a threat which in turn has a chilling effect on speech. Because the traditional public fora do not provide speakers with the same protection from civil liability as is available for speech which occurs in a school board meeting, the traditional public fora are not equivalent channels of communication.
Therefore, even if the policy was not content-based, there are not ample alternative channels of communication which are the equivalent of the forum from which the speech in question is excluded.
C. There Is a Possibility of Irreparable Injury to Plaintiff If Relief Is Not Granted As discussed above, there is more than a substantial likelihood that plaintiff will succeed on the merits of her case. That being so, plaintiff's First Amendment freedoms, as well as those of other members of the public who might wish to criticize District employees during the open session of a Board meeting, are in danger of impairment if a preliminary injunction does not issue to enjoin defendants from applying the policy to persons attending Board meetings pending a final determination on the merits. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.
Elrod v. Burns, 427 U.S. 347, 373–374, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); American–Arab Anti–Discrimination Committee v. Reno, 70 F.3d 1045, 1057–1058 (1995). The duration of a trial is an “ ‘intolerably long’ period during which to 220
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 13 permit the continuing impairment of First Amendment rights. [Citation.]” American–Arab Anti–Discrimination Committee v. Reno, 70 F.3d at 1058, supra.
D. The Balance of Hardships Favors Plaintiff
If a preliminary injunction does not issue, plaintiff will be deprived of her fundamental First Amendment rights until trial on the merits. In contrast, there is no indication that defendants have any legitimate compelling interest, let alone a fundamental constitutional right, which will be adversely affected if a preliminary injunction does issue. Therefore, the balance of hardships clearly favors plaintiff.
E. Issuing a Preliminary Injunction Will Advance the Public Interest The policy affects not only plaintiff's First Amendment rights, but those of all other *738 members of the public who may wish either to speak critically of a District employee's conduct or performance, or to hear such comments made by other members of the public at a public session of a Board meeting.
F. Conclusion
Plaintiff has met all the traditional criteria for issuance of a preliminary injunction: (1) she has a strong likelihood of succeeding on the merits of this case; (2) there will be irreparable injury to plaintiff if relief is not granted; (3) the balance of hardships favors plaintiff; and (4) the public's interest will be advanced if an injunction is granted. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d at 1200–1201, supra. Therefore, the motion is granted and the court orders that a preliminary injunction issue as follows:
IT IS ORDERED that pending hearing and determination of this cause on the merits, defendants Moreno Valley Unified School District and Frank M. West and their agents, employees and successors are hereby restrained and enjoined from applying and enforcing the policy during the open session of any Board meeting.
THE COURT HEREBY WAIVES the requirement of Federal Rules of Civil Procedure, Rule 65(c), that plaintiff give security before a preliminary injunction may issue, on the grounds that (1) the high probability of success on the merits favors exercising the court's discretion to dispense with such security, People ex rel. Van de Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1326 (9th Cir.1985), (2) it appears unlikely that either defendant would incur any significant cost or damages as a result of the preliminary injunction, U.S. v. State of Or., 675 F.Supp. 1249, 1253 (D.Or.1987), and (3) to require a bond would have a negative impact on plaintiff's constitutional rights, as well as the constitutional rights of other members of the public affected by the policy. Smith v. Board of Elections Com'rs for Chicago, 591 F.Supp. 70, 71–72 (N.D.Ill.1984).
All Citations
936 F.Supp. 719, 112 Ed. Law Rep. 917, 96 Daily Journal D.A.R. 12,865 Footnotes
1 All further statutory references will be to the California Government Code except as otherwise noted. 2 Section 54957.9 provides: “In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by removal of the individuals 221
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 14 who are willfully interrupting the meeting, the members of the legislative body may order the meeting room cleared and continue in session....”
Although the policy purports to allow the Board to order the meeting room cleared if a speaker persists in making critical comments by such reference to section 54957.9, the parties apparently have assumed that the consequence of engaging in proscribed speech is that the speaker alone may be removed from the room. 3 In the court's analysis of plaintiff's constitutional challenges, it is mindful of the principle that if the California Constitution provides independent support for plaintiff's claims, there is no need for a decision on the federal constitutional issue. Carreras v. City of Anaheim, 768 F.2d 1039, 1042–1043 (9th Cir.1985). 4 The court's conclusion therefore closes the possibility left open by the California Attorney General that a legislative body might be able to prohibit remarks “which it believes to be slanderous or which might invade an individual's personal privacy.” Office of the California Attorney General, The Brown Act: Open Meetings for Local Legislative Bodies 19 (1994). (See Defendants' Supp. Opposition at p. 25.)
5 Under the United States constitution the government may regulate speech because of its constitutionally proscribable content. However, although defamatory content is constitutionally proscribable, the government “may not make the further content discrimination of proscribing only [defamation] critical of the government,” R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 384, 112 S.Ct. 2538, 2543, 120 L.Ed.2d 305 (1992), nor may it regulate the use of defamatory speech based on “hostility—or favoritism—towards the underlying message expressed.” 505 U.S. at 386, 112 S.Ct. at 2545, supra. Here, the policy proscribes only speech critical of District employees, not speech critical of anyone else, and does not proscribe only defamatory criticism.
6 Even if the policy proscribed only defamatory speech, it would still contain a fatal flaw. Under either the United States or California constitutions, the government may not restrain speech before there has been a judicial determination (in connection with which determination the speaker received all proper procedural safeguards) that the speech is actually harmful. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 1246–1247, 43 L.Ed.2d 448 (1975); Adult Video Ass'n v. Barr, 960 F.2d 781, 789 (9th Cir.1992); People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 57, 550 P.2d 600, 130 Cal.Rptr. 328, cert. denied, 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289 (1976). District's policy would leave the determination of what is “slanderous” or “false” up to one person—in this case, West as president of the Board—apparently without regard for such niceties as whether the statement, though critical, is true, or whether, though false, is privileged, or whether, though couched as fact (e.g., “X is a racist”), is legally an expression of opinion rather than a statement of fact and hence not actionable as slander. This is the very evil the rule against censorship and prior restraint of speech seeks to prevent. Dailey v. Superior Court, 112 Cal. 94, 98, 44 P. 458, 460, supra (Article I, section 2, subdivision (a) of the California Constitution forbids prior restraint or censorship, even by judges, because this “ ‘subject[s] all freedom of sentiment to the prejudices of one man, and make[s] him the arbitrary and infallible judge of all controverted points in learning, religion, and government.’ ”).
Furthermore, even courts will not grant injunctive relief against future speech save in the most exceptional and grave circumstances, e.g., to prohibit the disclosure of military secrets during time of war. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931); Gilbert v. National Enquirer, Inc., 43 Cal.App.4th 1135, 1145, 51 Cal.Rptr.2d 91, 97, supra. Defendants do not contend that complaints about and criticisms of public school employees, even if scurrilous and untrue, constitute the kind of exceptional and grave circumstances which might justify an injunction against speech.
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 15 7 Public property may also be designated by the government for use as an unlimited public forum, i.e., for use by all groups and for the discussion of all subject matters. See, e.g., Clark v. Burleigh, 4 Cal.4th 474, 483 n. 8, 841 P.2d 975, 980, 14 Cal.Rptr.2d 455, 460 (1992); Cal.Ed.Code, § 40041(a). 8 “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.” § 54953. 9 “(a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless action is otherwise authorized by subdivision (b) of Section 54954.2.... “(b) The legislative body of a local agency may adopt reasonable regulations to ensure that the intent of subdivision (a) is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker.
“(c) The legislative body of a local agency shall not prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. Nothing in this subdivision shall confer any privilege or protection for expression beyond that otherwise provided by law.” § 54954.3. 10 “As used in this chapter, ‘local agency’ means a ... school district, ...” § 54951. “As used in this chapter, ‘legislative body’ means:
“(a) The governing body of a local agency....
“(b) A ... board, ... of a local agency, ...” § 54952.
11 Although defendants concede that such sessions are limited public fora, they contend that such sessions are “highly regulated” and “similar to a non-public forum.” Describing a forum as “highly regulated” begs the question of whether a particular regulation applicable to the forum is constitutional; describing a forum as “similar to a non-public forum” is irrelevant in the absence of any explanation of how the alleged similarity affects the level of constitutional scrutiny to which any regulation of speech in such forum must be subjected. Furthermore, to the extent that defendants rely on Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 (9th Cir.1995) to argue that a California school board meeting is a “non-public forum,” such reliance is misplaced, because the Brown Act specifically creates a public forum, albeit one limited to comments related to school boards' “subject matter.” 12 Based on the California Constitution's prohibition on censorship, the employees themselves legally could not prevent members of the public from making defamatory statements; why then should District be able to accomplish on such employees' behalf that to which they themselves have no legal right? 13 When a school board holds open sessions of its meetings and is addressed by members of the public pursuant to the Brown Act, it is not functioning as an employer, but as a legislative body. See §§ 54952, 54952.6, 54953, 54954.3. Legislative bodies declare policy and make provisions for the ways and means of accomplishing declared policy. California Radioactive Materials Management Forum v. Dept. of Health Services (Senate Rules Committee), 15 Cal.App.4th 841, 870, 19 Cal.Rptr.2d 357, 377 (1993). In connection with adopting policies and making provisions 223
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© 2022 Thomson Reuters. No claim to original U.S. Government Works. 16 for carrying out policies, one aspect of the legislative body's function is to listen to public testimony, including public criticism of those persons implementing the policies, i.e., school district employees. § 54954.3.
In contrast, as defendants themselves recognize, Defendants' Opposition at pp. 25–26, matters related to District's duties as an employer are considered in closed session. See, e.g., § 54956.95 (workers' compensation liability and claims considered in closed session); § 54954.5 (public employee appointment, public employment, public employee performance evaluation, public employee discipline/dismissal/release, conference with labor negotiator are all topics which may be discussed in closed session); § 54957.6 (salaries, salary schedules, and fringe benefits to be considered in closed session). These matters involve applying already determined policies to particular situations, which is an administrative or executive function. California Radioactive Materials Management Forum v. Dept. of Health Services (Senate Rules Committee), 15 Cal.App.4th at 870, 19 Cal.Rptr.2d at 377, supra. 14 It is difficult to discern how a statement which does not identify by name or position any particular employee can violate any particular employee's right to privacy.
15 District also tried to justify its resort to content-based regulation by claiming it has an interest in ensuring that participation and review is “informed and dispassionate.” However, the policy does not prohibit “uninformed” or “passionate” speech; it prohibits only speech critical of District employees, regardless of how informed or dispassionate such speech may be. And even if the policy were directed at only passionate or uninformed speech, it would not pass constitutional muster. The First Amendment protects speech which is uninhibited, robust, wide-open, vehement, caustic, and sharp, as well as speech which lacks truth, social utility or popularity or which exaggerates or vilifies. New York Times Co. v. Sullivan, 376 U.S. 254, 270–271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). 16 “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. “The people of the State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” ( Govt.Code, § 54950, emphasis added.)
17 See Frisk v. Merrihew, 42 Cal.App.3d 319, 323–324, 116 Cal.Rptr. 781, 783 (1974) (school board meetings are official proceedings within the meaning of California Civil Code section 47(b)(3)); see also Brody v. Montalbano, 87 Cal.App.3d 725, 731–732, 151 Cal.Rptr. 206, 211 (1978), cert. denied, 444 U.S. 844, 100 S.Ct. 87, 62 L.Ed.2d 57 (1979) (absolute privilege applies to parents' communication with school board which is intended to prompt official action by board regarding school administrator's conduct); Martin v. Kearney, 51 Cal.App.3d 309, 311, 124 Cal.Rptr. 281, 282 (1975) (absolute privilege applies to parents' communication with school board which is intended to prompt official action by board regarding school teacher's conduct).
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