OC Judge Allows Lawsuit Against Orange County Public Comment Policies to Move Forward

JULIE LEOPO, Voice of OC

The speaker's podium at the Orange County Board of Supervisors meeting on May 7, 2019.

A lawsuit alleging Orange County supervisors have unconstitutionally restricted public comments got the green light to move forward Wednesday, after a Superior Court judge rejected a county legal motion that argued there were no legal grounds for the complaint.

In her new ruling – in an updated case by the American Civil Liberties Union (ACLU) – OC Superior Court Judge Sheila B. Fell found the plaintiffs “alleged sufficient facts” to show that restrictions on speech at supervisors’ meetings must “be reasonable and viewpoint neutral.”

“The lack of any guidance or standard for the Chair to decide whether to grant permission renders the [speaking] Rule unreasonable and, as such, unconstitutional,” Fell ruled on Wednesday.

The ruling allows the lawsuit to move closer to an evidence-gathering phase, and a possible trial next year.

[Click here to read the ruling.]

The case was brought by the ACLU on behalf of a group of homeless advocates, the People’s Homeless Task Force, who often criticize supervisors during public comments at the supervisors meetings. Among other things, the lawsuit alleges supervisors enforce speaking time limits more strictly against people who criticize them.

At one meeting in 2017, Supervisor Michelle Steel, in her first meeting as chairwoman of the board, let some corporate executives talk for about twice as long as the time limits she enforced against homeless advocates and county workers.

County spokeswoman Molly Nichelson said county officials had no comment on Wednesday’s ruling rejecting their motion. All five county supervisors were contacted for this story and didn’t return messages seeking comment, except for Supervisor Doug Chaffee.

“I’m not aware of anything that is other than a procedural decision. And it will wind up going to trial as something more detailed later on,” Chaffee said via voicemail.

“What we, as a county, tried to do with our legal counsel is to knock the case out with a demurrer. And so the judge I think felt that it needs to go on to a trial or some further discussion. And so it will, and we’ll see what happens later.”

The ACLU’s lead attorney in the case said the ruling clearly bolsters their point that the County of Orange rules for public comment violate free speech rights. 

“We’re very pleased that the court denied the county’s motion,” said Peter Eliasberg, chief counsel with the ACLU of Southern California.

“We think that this gives us an opportunity to go forward and further develop the work and further show that a variety of the county’s policies really are not compatible with their obligations with respect to public transparency and public access to government through the Brown Act,” he added, referring to the California law that requires open and equal access to meetings of local elected officials.

“We’re confident that the court will see it our way and that we’ll get rulings that some, if not all, of the policies that we’re currently challenging violate the law.”

County attorneys have argued in court filings that their meeting and public comment rules are entirely legal and constitutional, and common among local governments.

“The Board’s Rules of Procedure are entirely reasonable, non-content based, and fall squarely within the law,” county attorney Rebecca Leeds wrote in a filing last week.

“These Board Rules reflect ordinary procedures for structuring public meetings adopted by other municipalities and school districts throughout the State,” the count filing adds.

County attorneys also noted in court filings that the ACLU dropped its allegations that the county has an illegal policy to destroy public records within two years, after county attorneys noted that Gov. Gavin Newsom vetoed a bill that would have set a two-year requirement in state law.

Eliasberg said the public records allegations were dropped because the county is no longer saying they can destroy records at any time, under the “transitory records” exemption the county previously claimed.

“They said they are no longer going to claim they have a right to destroy these so-called transitory records at any time. And so that’s really why we dropped the claim,” Eliasberg said Wednesday.

In California, if the ACLU or anyone else suing a local government wins on any of the claims they allege, taxpayers are on the hook for their attorney fees on top of the agency’s attorney fees. The cost can stretch into the hundreds of thousands of dollars for taxpayers for individual cases.

When a federal appeals court ruled the OC District Attorney’s office illegally restricted the rights of people it accused of being gang members without giving them a chance to show they weren’t in a gang, the county was ordered to pay over $3 million in legal costs to the ACLU.

The ACLU has another active lawsuit against the County of Orange, filed in April, which alleges the Sheriff’s Department has failed to protect inmates from coronavirus through physical distancing.

County officials dispute the jail allegations, and on Wednesday won a ruling from the U.S. Supreme Court blocking a lower court order from going into effect against the county until a full appeal is heard.

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.