By Guest Columnist Michael Ceremello – April 12, 2017 –
Solano Judge Throws Out Independent Voice Lawsuit
Independent Voice (IV) Publisher Dave Scholl received a major setback in his effort to expose the city council’s illegal and unethical bid rigging and sole source contract design to eliminate the IV from competing for the city’s legal notice advertisement when Judge Michael Mattice ruled that Scholl hadn’t sufficiently demonstrated specific causes of action in his complaint.
The gist of this conflict was whether or not the Dixon city council retaliated against Scholl by adding specific language to the Request for Proposals assuring Scholl’s inability to meet certain requirements.
According to Mattice, “Petitioner has not stated a cause of action for violation of his first amendment rights. In order to establish a First Amendment retaliation claim, a plaintiff must establish that: 1) the plaintiff was engaged in a constitutionally protected activity, 2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and 3) the protected activity was a substantial or motivating factor in the defendant’s conduct.” In response, California Newspaper Publishers Lead Attorney Jim Ewert stated, “I’m stunned at this tentative. It is incredulous that he found a newspaper is not engaged in 1st Amendment protected activity.”
Further Mattice stated that there is some protection for free speech when you already hold a contract (the IV held a joint contract along with the Dixon Tribune at that time) but are not entitled to the same protection while seeking a contract. Mattice quoted the 1995 decision of BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR to validate his stance. However, contrary to Mattice’s ruling, the decision does indeed validate a cause of action against retaliation for protected First Amendment political criticism.
The majority of Mattice’s ruling was directed at Scholl’s failure to provide answers to the law’s requirement to partially flesh out the case. A final statement from Mattice was he could see no ability for Scholl to amend his complaint to do this. Kurt Hendrickson of Churchwell and White, the city’s defense attorney, complained that it had taken nine months to get to this point, encouraging the judge to retain his stance.
During Tuesday night’s special meeting preceding the regular council meeting, city attorney Doug White stated, “ … essentially what sustaining this demurrer means is the judge viewed this as a frivolous lawsuit”. Essentially what Mr. White is stating is that freedom of the press as well as freedom of speech is frivolous and any action the government takes against its citizens, including retaliation, is allowed.