MOORLACH UPDATE — Good Friday — April 18, 2014

The Board of Supervisors is courteous to public speakers, almost to a fault (if you’ve ever watched one of our meetings and observed our regulars). But, one of the more “abrasive” public speakers sued the County and lost in Federal Court. Last night I was informed that the U.S. Ninth Circuit Court of Appeals came to the same conclusion as that of Central District Judge James V. Selna, but for different reasons. The American Civil Liberties Union (ACLU) took on a client known for being a bully, on what I believe was a weak and inaccurate position, to somehow bully the Board of Supervisors in a new form and fashion back in September 2011 (see MOORLACH UPDATE — Sounding Off — September 9, 2011). Being affirmed on appeal makes this a good Friday for me, although it is a somber, reflective, and holy day for the Christian Church.

Most public speakers do not mind being asked a question by a Supervisor. Mr. Fitzgerald did not wish to be interrupted from his prepared speech when I tried to ask him a question. All I wanted to do is ask if he had seen the Internal Audit Department report prepared specifically to address the charges he had delivered during previous Board meetings about the Assessment Appeals Board. If he had not been aware of it, I wanted to hand him a copy (see http://ocgov.com/civicax/filebank/blobdload.aspx?BlobID=5731). At one meeting, I felt compelled to take exception to Mr. Fitzgerald’s comparison of the Clerk of the Board, who oversees the Assessment Appeals Board, to a concentration camp commander. As my parents lived in Nazi-occupied Netherlands during World War II, I thought the statement could not be left hanging in the air without some response. Mr. Fitzgerald is free to say whatever he wants. So am I. And when his speech edges over to an inappropriate area, then I should be compelled to challenge such bullying behavior. I will always be perplexed as to why the Orange County ACLU took on this case and stole precious time from so many here at the County. It does not appear to have good leadership, as this is not the only curious move that the ACLU has made in recent memory. For an example, see MOORLACH UPDATE — Homeless Shelter — October 18, 2013, which also provides links to the prior UPDATES on William D. Fitzgerald v. Orange Count; Bill Campbell; John Moorlach; Janet Nguyen; James C. Pena, in their official and individual capacities. Let’s hope this frivolous litigation is behind us, as condemning bullying on school grounds is the fad, it seems odd for the ACLU to condone it for adults.

With that, may you have a wonderful Easter weekend.

Court says supervisors didn’t violate speech rights with interruptions

Anaheim man sued after his comments drew reactions at public meetings.

BY ERIC HARTLEY

A federal appeals court ruled Thursday that an Anaheim man’s First Amendment rights were not violated when his speech drew strong reactions at Orange County Board of Supervisors meetings.

The 9th U.S. Circuit Court of Appeals also upheld a board rule barring “personal, impertinent, slanderous or profane remarks” at public meetings. But the court made its ruling “unpublished,” meaning it does not set precedent for future cases.

William D. Fitzgerald testified that he was intentionally “abrasive” when speaking before the board in 2010 and 2011, comparing the board clerk to a concentration camp commander and later using the phrase “cowardly Vietnamese” when discussing a redistricting proposal.

At both meetings, supervisors interrupted Fitzgerald and a sheriff’s deputy approached him, videos of the meetings showed.

But the appeals court wrote, “… the record shows that at both meetings, Fitzgerald departed the speaker’s podium of his own accord. Thus, he did not suffer injury at either meeting.”

Fitzgerald sued in federal court in 2011, saying his free-speech rights were violated. At a 2012 trial, he testified that the deputy ordered him to leave the building, but the deputy testified that the claim was untrue. A judge ruled against Fitzgerald following the trial.

The appeals court said the judge erred in ruling that Fitzgerald had no standing to challenge a board procedural rule that says people who make “personal, impertinent, slanderous or profane remarks” can be barred from speaking or removed from a meeting.

But because the county has said the rule would be enforced only if a speaker’s conduct actually disrupted a meeting, the appeals court found the rule constitutional.

Bardis Vakili, an American Civil Liberties Union attorney who represented Fitzgerald, said he was pleased the county has agreed it can’t cut off speech simply because people criticize board members. Supervisor John M.W. Moorlach said no one on the board ever restricted Fitzgerald’s right to speak, but supervisors tried to ask him questions and respond to his offensive comments.

Contact the writer: ehartley or 949-229-5950

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