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  • Saturday, February 03, 2007

     

    OUSD WINS MOTION to DISMISS ROCCO SUIT

    Orange Unified Schools DIGEST SPECIAL REPORT
    a news service of Orange Net News /O/N/N/

    Rocco Censure / Californians Aware Lawsuit thrown out in Legal Victory for OUSD Attorney Spencer Covert

    OUSD Counsel Spencer Covert won a major court victory on Friday February 2, over longtime nemeses Richard McKee and the first amendment watchdog group Californians Aware in the Rocco Censure Lawsuit. The two have tangled in court battles over the years including caes of alleged Orange Unified Brown Act violations.

    Orange County Superior Court Judge Clay M. Smith ruled in favor of Orange Unified’s contention that the Rocco Censure was in itself an expression of free speech of the collective Trustees. Smith wrote (full text of finding follows report below):

    “ It is interesting that Respondents [ OUSD ] have been hailed into court precisely for exercising the same right which Petitioners purportedly seek to vindicate, the freedom of expression. CCP 425.16 is intended to address just such a situation”

    Judge Smith also wrote about the comment Rocco made about transferred principal Ben Rich that was the center of the controversy:

    "To be certain, Petitioner Rocco’s public comments regarding a highly sensitive personnel matter can be fairly characterized as misguided, inappropriate, and even boorish. And, as Petitioners point out, Mr. Rocco enjoys a First Amendment right to make such statements. That right has not been infringed nor threatened by Respondents"


    At the January 18, 2007 OUSD Board Meeting, Californians Aware attorney Dennis Winston made a quote filled statement making his lawsuits point that the OUSD Censure was a prior restraint on speech. Judge Smith addressed this issue of the Rocco lawsuit stating:

    “Petitioners [Rocco and Californians Aware] argue that the Resolution [of Censure] constituted impermissible punishment because of its use of the term “censure.” The mere use of the term, however, cannot be controlling. It is undisputed that Respondents have taken no action to prevent (either in the past or in the future) Mr. Rocco from the exercise of any right. They have not restricted his participation as a member of the board or as a citizen. They have imposed no penalty or constraint whatsoever. The undeniable fact is the Board has done nothing of substance other than express its disapproval of Mr. Rocco’s statements. Under these circumstances, the resolution is not a violation of any protected right of Petitioners.”

    In practice since the Censure and the lawsuit, the OUSD Board has been more than tolerant of Rocco’s comments and speech. The change back to ignoring Rocco instead of the more aggressive approach championed by Nichols in an apparent exasperation, seems to have helped more than trying to silence the exocentric trustee.

    The lawsuit sought to nullify the Resolution of Censure and have OUSD pay the legal fees of the suit.

    FULL TEXT OF JUDGE SMITH’S RULING

    Below is the full text of Judge Smith’s ruling in favor of OUSD’s motion to dismiss the Rocco Lawsuit.

    (NOTE: Respondents = OUSD / Petitioners = Rocco and Californians Aware):

    Respondents’ special motion to strike (SLAPP) the Petition:

    As a preliminary matter, Respondents’ evidentiary objections to the Rocco Declaration, Paragraph 1 is overruled and the objections to Paragraphs 2, 3 and 4 are sustained. Defendants’ evidentiary objections to the McKee Declaration, Paragraphs 3, 4, and 7 are overruled and the objection to Paragraph 6 is sustained.

    As the parties acknowledge, courts apply a two-step analysis in evaluating anti-SLAPP motions pursuant to CCP 425.16. The first step in this process is to determine if the challenged conduct is covered by CCP 425.16. In this case, the Board’s resolution is clearly within the scope of CCP 425.16(e). Holbrook v. City of Santa Monica, 144 Cal. App. 4th 1242, 1247 (2006).

    Having made this determination, the burden shifts to Petitioners to demonstrate that they have a probability of prevailing on their claim. They have not done so.
    To be certain, Petitioner Rocco’s public comments regarding a highly sensitive personnel matter can be fairly characterized as misguided, inappropriate, and even boorish. And, as Petitioners point out, Mr. Rocco enjoys a First Amendment right to make such statements. That right has not been infringed nor threatened by Respondents.

    Just as Petitioner Rocco is free to express a disagreeable opinion, Respondents also enjoy the right to express their point of view. In essence, Resolution No. 10-06-07 is the Board’s expression of it’s believe that Mr. Rocco’s comments had violated the California constitution, state law, and the Board’s bylaws. Indeed, it seems clear that the Board would have no other means of collective expression other than by the adoption of a resolution.

    Petitioners argue that the Resolution constituted impermissible punishment because of its use of the term “censure.” The mere use of the term, however, cannot be controlling. It is undisputed that Respondents have taken no action to prevent (either in the past or in the future) Mr. Rocco from the exercise of any right. They have not restricted his participation as a member of the board or as a citizen. They have imposed no penalty or constraint whatsoever. The undeniable fact is the Board has done nothing of substance other than express its disapproval of Mr. Rocco’s statements. Under these circumstances, the resolution is not a violation of any protected right of Petitioners.

    It is interesting that Respondents have been hailed into court precisely for exercising the same right which Petitioners purportedly seek to vindicate, the freedom of expression. CCP 425.16 is intended to address just such a situation.

    The Court finds that Petitioners have failed to demonstrate a probability of success as to any cause of action. The motion is therefore granted.



    Orange Unified Schools Digest is an independent news service of
    /O/N/N/
    Orange_NetNews@yahoo.com
    “Independent, Local, News and Viewpoints”

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