The law offices of Melo and Sarsfield have filed an anti-SLAPP suit against the city of Lemoore to stop its attempts to silence Lemoore City Council Member Holly Blair. According to the suit filed March 14, the City of Lemoore has attempted to file a Temporary Restraining Order (TRO) against Blair three times.
All three requests have been denied.
A mandatory mediation meeting is scheduled at Kings County Superior Court tomorrow March 20, Department 10 at 8:15. presided by the Hon. Kathy Ciuffini. If no agreement is reached the next hearing is set for April 23.
The City of Lemoore is represented by the law firm Lozano Smith.
If Ciuffini orders in favor of Blair in April, Lemoore’s complaint will be dismissed with prejudice, meaning that the city can never file another TRO restricting Blair’s right to speak again. Lemoore will also have to pay Blair’s legal fees.
If the judge orders in favor of Lemoore, the anti-SLAPP suit goes straight to the Fresno Supreme Court on appeal. Once an anti-SLAPP case has been filed, the city cannot go forward with a TRO until all appeals are exhausted.
A dismissal of Lemoore’s complaint would also be a form of vindication for Blair.
The Lemoore City council voted 4-1 last August to censure Blair, and the City and the Lemoore Police Department have been attempting to stop her from publicly criticizing them using the legal system.
The City of Lemoore and Lemoore’s Police Department’s complaint is that Blair’s negative comments are putting the lives of the police and city staff at risk and creating an environment that will make it hard for the city to recruit quality applicants. Chief of Police Darryl Smith and City Manager Nathan Olson feel that as an “agent of their employer” Blair must voice all criticisms concerning personnel in closed session or direct them to the City Manager, Olson.
Blair on the other hand says she is not an employee of Lemoore but an elected official. In a statement submitted as part of the anti-SLAPP case she says:
“I do my best to represent a constituency that in my opinion has a very limited political voice. My constituency does not automatically ‘trust’ the police or the government and I advocate for them. On occasion, the views of my constituency directly conflicts with the views of the members of the City of Lemoore city government, and/or other council members. ….. When I speak at the dais, it is to address my constituency’s concerns about the operation of city government, including the police department, as well as the conduct of city employees. It is my duty as an elected council member to do so. I intend to continue to do so pursuant to the obligations of my elected post.”
According to Melo and Sarsfield’s court brief, “this action (the TRO) has been brought to silence Respondent and her public statements as described above. The California anti-SLAPP law was enacted to protect speech such as Respondent’s here.”
What is an Anti-SLAPP
According to Wikipedia, “A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech.”
One tool to use in defense of these lawsuits against public participation is an anti-SLAPP suit.
According to Blair’s brief, “The anti-SLAPP statute was enacted to check a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional right of freedom of speech and petition,”
In a Lozano Smith newsletter they seem to agree saying, “An anti-SLAPP motion remains a powerful tool for fighting lawsuits in which a plaintiff bases his or her claim on protected speech or petitioning activity (typically, litigation).”
Melo and Sarsfield’s brief claims that, “ALL of Respondents (Blair) statements are protected by the First Amendment” and are protected speech.
The brief continues, “Respondent’s statements at issue constitute criticism of the City Government, criticism of fellow politicians and/or criticism of high-ranking government officials. This is true whether the statements are advocacy by a local legislator at the dais, statements of opinion at the dais or on social media, engaging in petitioning under the First Amendment, or merely reposting magazine articles. The United States Constitution, Bill of Rights, First Amendment protects this activity.”
Lozano Smith coincidentally has been involved in a similar case.
The law firm, which also represents the City of Greenfield, took the Monterey Weekly to court last August seeking a TRO that would prohibit the paper from publishing the law firm’s memos.
The judge declined to issue a TRO but the Weekly had to go back to court on September 7 to fight against Greenfield’s request for a permanent injunction on the publishing any other documents the Weekly has from the law firm.
In response, the Weekly’s lawyer filed an anti-SLAPP motion, arguing, “Greenfield’s suit is a bullying tactic that violates our protected rights to gather and disseminate news. The anti-SLAPP statute exists for moments like these, when those in power drag their critics into court in an attempt to silence them,” according to the Weekly.
When the two sides met in court again in September, according to The Monterey Weekly, “even attorneys Lozano Smith had come around by the time of the hearing on Friday.”
Greenfield lost its case and agreed to pay the Weekly‘s attorney’s fees.
If Lemoore’s case is dismissed, the city will not only have to pay Lozano Smith, but will have to pay Blair’s legal fees. Calculating the per hour rate from the beginning of the case that started January 29, and involved multiple court filings and briefs, Lemoore might owe as much as $50,000 to Melo and Sarsfield.
Melo and Sarsfield Law firm was not available for comment because of the court agreement not to discuss litigation until after mediation.