The California Supreme Court rejected the city's petition to review the appeals decision in Tichinin v. the City of Morgan Hill.
Local land use attorney Bruce Tichinin, the centerpiece of the scandal that has rattled Morgan Hill since 2004, says he'll meet with the city to discuss settling out of court on Tuesday.
City Attorney Danny Wan said settling "is certainly an option" but that the meeting was set up at the city's behest before the supreme court decision was announced.
"The City Council has not met to discuss any potential settlement," Wan said in an e-mail. "It is very premature to suggest that any settlement proposal has been made. Of course, in any litigation, settlement is always a possibility if there is a meeting of the minds between the parties.
If a settlement can't be reached, the case will be heard by the Santa Clara County Superior Court.
The case has rattled Morgan Hill since 2004, when Tichinin ordered a spy to follow City Manager Ed Tewes to prove an alleged affair between Tewes and then-city attorney Helene Leichter. Tichinin believed this affair influenced Leichter's decisions regarding Tichinin's clients. Tewes and Leichter denied the affair. The Morgan Hill City Council denounced Tichinin for his actions and asked him to step down from a city committee.
Tichinin claims these council actions defamed him and harmed his business. Tichinin says he has every right to use any legal means necessary to build a case, and that private investigations are legal means.
Tichinin filed the lawsuit in January 2006. The trial court dismissed the lawsuit in December 2006. Tichinin appealed, and in September 2009 the 6th District Court of Appeals agreed that he should have a chance to present his case to a jury.
The city responded with a petition to the supreme court. Tichinin and law professionals said the appeals court's position was tightly written and the supreme court was unlikely to take up the case.
Today, the supreme court voted 5-2 to not take up the case.
Also, the state court rejected the League of California Cities request to make seal the court documents so that any ruling wouldn't set precedence for governments statewide. Wan said the case "has implications for all cities.
"The worry is that, does this mean that city councils and boards of supervisors cannot opine on what they think is proper behavior or give their opinion as to what is good or bad, even if action does not have any punitive action to it? Certain large cities issue resolutions expressing their disapproval over a lot of things."
Both parties claim that if their side wins, it would be a win for the First Amendment. While Tichinin says it's within his rights as a citizen to look into suspected misconduct, city officials argue they have free speech rights, too, and can refute such allegations. But Tichinin says their refuting caused him significant distress professionally and personally.
The case arose out of a Morgan Hill City Council resolution condemning Tichinin for having hired a private investigator to spy on and videotape Tewes. Tichinin alleged that Tewes opposed his client's development project application before the city council because Tichinin had spoken out against The Ford Store of Morgan Hill, which the city had backed.
Through spying, Tichinin hoped to collect evidence of the rumored affair in order to disqualify Leichter from advising the council on the development project. Tichinin sued the city alleging that the city violated his first amendment rights by passing the council resolution.
Tichinin didn't find any evidence of one after a bungled spying attempt at a Huntington Beach hotel in February 2004 that involved two cups of hot chocolate being ordered to Tewes room by unlicensed private investigator Brian Carey. Tewes caught Carey recording his actions as he exited his hotel room.
Wan noted that the city's resolution directed no steps against Mr. Tichinin, but merely expressed disapproval of Tichinin's unwarranted and covert surveillance of the city manager.
Leichter was awarded $215,000 in salary, benefits and compensation for "alleged physical injury or sickness" in a settlement agreement when she resigned in April 2005. She recently resigned from her post as Santa Clara's city attorney.
Natalie Everett
Natalie Everett Natalie Everett is the education and city reporter for The Times. Reach her at (408) 779-4106, ext. 201, or neverett@morganhilltimes.com.
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