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| Following are two news articles on the city attorney’s crusade to silence me. There is also the RPA spin, Mayor Butt Hit With Restraining Order.
This morning, Superior Court Judge Jill Fannin denied my ex parte application to intervene in my personal capacity into an action where I was sued only in my official capacity and for which the City has refused to tender a defense. The Court spent only a few minutes reviewing the papers before taking the City’s position at face value and without much question, that there is no legal difference between an official sued in their official capacity and personal capacity, and that therefore the Mayor sued in in his official capacity and in his personal capacity are the same party.
It is a decision that flies directly into the face of very well-settled law and clear prior decisions of both the California Supreme Court and U.S. Supreme Court. Justice White, delivering the majority SCOTUS opinion in Will v. Michigan Dept. of State (1989) 491 U.S. 58, wrote:
“Obviously state officials are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office”.
“Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of law. [citations]. Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against the entity of which an officer is an agent.’ [citations]. As long as the government entity receives notice of and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity.”
The Will decision was cited and formally adopted by the California Supreme Court in Venegas vs. County of Los Angeles (2004) 32 Cal.4th 820.
The Venegas Court held that an action against an official in their official capacity is an action against the office, and thus the government entity, not against the individual. Id. at 829 fn 3, 4.
Article IV, Sec 3 of The Charter of the City of Richmond states that the City Attorney “shall represent the City in all actions”. The language is mandatory and not permissive. It is clear that only the City Attorney can represent the Mayor in his official capacity, but the City Attorney has stated on the record that she will not do so and will not oppose the City’s (as plaintiff) claims against the City (as defendant). This approach – bypassing normal legal process by directing the defendant City of Richmond to not defend itself and fall on its own sword – is not dissimilar to the City Council’s direction to the City Attorney in the Pt. Molate litigation to side with the Appellants. The City Attorney’s refusal of that direction is ironically one of the communications the City seeks to keep secret by this action.
An appeal of the decision to the First District Court of Appeals was filed today, which stays the Superior Court action, and will put resolution of this question in front of a three-judge panel at the 1DCA. We are confident that the 1DCA will follow the clear and well-settled precedent of the highest courts in the land and correctly apply basic and fundamental principles of civil procedure, due process, and open government, allowing the City’s complaint to be answered.
In any event, I will not be complying with the TRO.
Rachel Swan
Dec. 10, 2021Updated: Dec. 12, 2021 8:01 p.m.
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Richmond filed a temporary restraining order to stop Mayor Tom Butt from disclosing information it deemed confidential.
Paul Chinn/The Chronicle 2018
The city of Richmond filed a temporary restraining order to stop Mayor Tom Butt from disclosing communications it deemed confidential — but the mayor says the action is part of the departing city attorney’s misuse of power to stop him from exercising his free speech rights.
A Contra Costa County Superior Court judge issued the temporary restraining order on Tuesday at the request of outside attorneys hired by the city asking the court to stop the mayor from making public communications that City Attorney Teresa Stricker said were confidential because of attorney-client privilege.
The order immediately enjoins the mayor from posting “attorney-client communications” on his website, tombutt.com. It cites two examples of posts he made that contain such content — on Nov. 5 and Nov. 16.
On those dates, Butt posted blogs to his popular “E-Forum.” The first post, on Nov. 5, contained advice from the city attorney to the City Council over federal litigation concerning a development at Point Molate. In second post, on Nov. 16, Butt published the findings of a two-year corruption investigation the city started against him — findings that concluded the complaints were without merit.
“I think they were hoping I would go to jail or something like that,” Butt told The Chronicle, referring to the corruption probe.
In a Dec. 7 court declaration, Stricker said that on Nov. 5, the mayor “posted on his website a significant portion of a confidential written attorney-client communication” that she emailed to all members of the council, including Butt, on Oct. 20. The email bore the heading “confidential communication,” which Butt removed when he posted it to his blog, Stricker said.
Within hours, Stricker said she sent a cease-and-desist demand to the mayor, but he did not remove the post.
Similarly, on Nov. 16, Stricker sent a confidential attorney-client memorandum to the mayor and council, summarizing the conclusions of the investigation of the mayor. It also had headings labeling the message as “confidential attorney client communication” and the words “confidential communication” at the beginning of the message, along with a “confidential” notation in the e-mail subject line, she said in the declaration.
In the declaration, Stricker wrote that the mayor again posted most of the communication on his website, removing the “confidential” headlines. Stricker wrote a cease-and-desist demand, but he did not remove the post. Days later, on Nov. 23, the council approved a resolution to censure the mayor.
Stricker said in the filing that the mayor’s disclosures were inflicting “immediate irreparable harm” on the city. The city attorney announced her resignation in November. She declined to comment for this story, and attorneys who filed the case could not be reached.
Butt called the restraining order, which was authorized by the City Council, part of “an elaborate conspiracy to shut down criticism of City Council members and the city attorney by the mayor and deprive him of his First Amendment rights.”
He said the court made a significant error, and that his attorney will be filing a motion Monday, arguing that the restraining order is an unprecedented attempt by a California charter city to sue itself.
The mayor is also considering his own lawsuit accusing the city of using court to intimidate him from exercising his right to free speech.
For the past several months the mayor has sparred with the progressive majority of the City Council over several issues, including police funding, the Point Molate lawsuit, sideshow prevention and infrastructure. Recently, the mayor said, “an extraordinary set of events have shaken the city of Richmond to its foundations,” ranging from the city attorney’s resignation, to the termination of the city manager in November, to the police chief being placed on administrative leave.
Currently, he said, the city has 100 full- and part-time positions vacant.
“Within the past month, they have passed resolutions condemning me twice,” Butt said. “They’ve censured me. They’ve requested that the district attorney and the grand jury investigate me. They went out and got this temporary restraining order. ... I’m not sure what else they can do. Maybe they’re going to hire a hit man.”
He added: “It’s pretty much a clown car over here in Richmond.”
Rachel Swan is a San Francisco Chronicle staff writer. Email: rswan@sfchronicle.com Twitter: @rachelswan
Richmond Mayor Tom Butt slapped with restraining order sought by own city
Michelle Robertson, SFGATE
Dec. 13, 2021
OAKLAND, CA - SEPTEMBER 26: Richmond Mayor Tom Butt is photographed on Wednesday, September 26, 2018, in Oakland, California.
MediaNews Group/East Bay Times v/MediaNews Group via Getty Images
The City of Richmond has successfully hit its own mayor, Tom Butt, with a temporary restraining order for allegedly violating client-attorney privilege by posting "confidential" information on his regularly updated e-forum, the order said. Butt alleged the order violates his First Amendment rights, and told SFGATE he does not intend to comply.
Granted Dec. 7, the order from a Contra Costa County Superior Court judge ruled that Butt posted "confidential and privileged communication" on Nov. 5 and 16 from City Attorney Teresa Stricker. Stricker declined to provide comment for this article, and will be resigning from her position in January after repeated fights with Butt.
At time of writing, the two postings in question remain on the e-forum.
The Nov. 5 post concerns a lawsuit filed against Richmond over the highly contentious Point Molate development at a former military base, according to the Mercury News. The Nov. 16 post concerns an investigation into Butt for "alleged discrimination, retaliation, 'corrupt conduct,' 'abusing power,' 'circulation of information externally,' and more," Butt writes. That post also includes a "confidential" document written by Stricker.
Butt told SFGATE by email that he does not intend to comply with the order, and he alleged that it had yet to be served.
He said that "the court made a significant error," and his attorney will file an ex-parte motion on Monday. Butt's legal team is also considering an anti-SLAPP suit, he added. Anti-SLAPP laws "are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights," according to the Reporters Committee for Freedom of the Press.
In a statement, Butt also called the action "an unprecedented attempt by a California Charter City to sue itself" and that his "public interest communications" are "expressly protected by the First Amendment to the U.S. Constitution and Article I, Section 2 of the California Constitution, from his personal web server."
A hearing is scheduled for Dec. 29, according to court documents. |
