Tichinin case may go to trial
Sep 25, 2009
By Natalie Everett
Gilroy Dispatch
Bruce Tichinin, a key figure in one of the most infamous Morgan Hill
controversies of the past decade, may get his day in court after an appellate
ruling found he could convince a jury that the city violated his constitutional
rights.
The right violated? Spying on a public official Tichinin thought was engaged in
wrongdoing.
That wrongdoing? Having an extramarital affair that, Tichinin believed, resulted
in unfavorable decisions that affected Tichinin's clients, which included a
developer and a councilwoman.
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 and the 6th District Appellate Court agreed that he should get the
chance to persuade a jury that the city owes him for this distress.
"The city threw mud at me, and the Constitution splashed it back in their face,"
Tichinin said.
In 2004, Tichinin hired a private investigator to prove his theory that City
Manager Ed Tewes and then-City Attorney Helene Leichter were having an affair.
Tichinin believed that the alleged romantic involvement led to Tewes influencing
Leichter to decide against a proposed set of homes at the base of El Toro.
The investigator hired Brian Carey, who staked out a Huntington Beach hotel
where Tewes stayed during a conference in February 2004.
One night Tewes returned to his room to find two cups of hot chocolate from
room service that he had not ordered.
The next day, after talking with hotel personnel, Tewes became suspicious that
he was being followed.
As he left his room on the way to check out, Tewes made a lot of noise in his
room, and then hid in a hallway alcove and waited, assuming he would be
followed. Moments later Carey walked by with a video camera. When Carey saw
Tewes, he hid the camera. Tewes followed Carey to the lobby and later saw
Carey watching him from a distance.
Carey later admitted to ordering the hot chocolate.
Tewes said at the time that he was shaken and distressed by what he
considered to be intrusive surveillance, and he feared for his family, according to
city documents.
The city formed a surveillance subcommittee consisting of councilmen Larry Carr
and Greg Sellers. After the committee issued a final report on the matter, the
council passed a slap-on-the-wrist resolution condemning the detective work,
finding it deplorable and meritless.
The council threatened to report Tichinin to the state board, and asked him to
step down from a city subcommittee.
Tichinin says this was retaliation, and that it was within his First Amendment right
to free speech to conduct research to prove a theory for a potential lawsuit.
In 2006, a trial court dismissed Tichinin's case at the city's behest.
"My business was nearly ruined. My reputation was nearly ruined. I suffered
severe emotional distress," Tichinin said.
The same may be said for the community as a whole, according to Councilman
Greg Sellers.
"It reflected negatively on the entire community, to the extent that we got
coverage on something that reared its ugly head." Sellers said. He declined to
comment further since the case is ongoing.
Shaun Martin, a law professor at the University of San Diego who writes a blog
on California appeals court cases, agreed with the decision in principle.
"I don't think it's all that radical to say that you have the right to investigate
government officials," Martin said. "The central importance of the case is that the
court of appeals says ... citizens may have a constitutional right to investigate
(suspected misconduct) even when that involves invading the privacy of a
government official."
City Attorney Danny Wan said the city was looking forward to a full trial, noting
that the appellate court's decision was based on the motion to dismiss and not
the full presentation of facts.
Wan said the city's options are to appeal again, this time to the California
Supreme Court, or allow the case to go to trial.
Tewes said he doesn't have any thoughts on the matter and won't until Wan
recommends an option.
"I gave all the comments I had five years ago," Tewes said.
In a 2004 statement, Tewes said, "My family and I have been deeply disturbed to
learn that a local attorney, with pending matters before the city government,
arranged for a secret surveillance of my activities in an effort to discredit me and
the city attorney. That individual's conduct is reckless and harmful ... We may
never know what motivated the individuals responsible, but we know with
certainty that the belief that the city attorney and I were having an affair is
baseless and untrue. We know that some may have spread damaging rumors no
matter how false. This has been a trying time for me personally, but I have
confirmed to the City Council my intent to meet my responsibilities to the
community and the city staff without fear or favor."
Leichter, now Santa Clara's city attorney, could not be reached for comment.
She was awarded $215,000 in salary, benefits and "alleged physical injury or
sickness" in a settlement agreement when she resigned in April 2005.
As of November 2006, the Tichinin lawsuit had already cost the city $100,000,
according to a previous Times story.
Chang, who did not seek a third term as councilwoman in November 2004, is out
of town until Oct. 1, according to her voicemail message. She now serves on
California's medical board.
Brian Carey could not be reached for comment by press time either. He is now a
popular bartender in Santa Cruz County, according to his MySpace page and
other Internet sources.
Spy case: CA Supreme Court denies city's petition
Jan 13, 2010
By Natalie Everett
Morgan Hill Times
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.
Sep 25, 2009
By Natalie Everett
Gilroy Dispatch
Bruce Tichinin, a key figure in one of the most infamous Morgan Hill
controversies of the past decade, may get his day in court after an appellate
ruling found he could convince a jury that the city violated his constitutional
rights.
The right violated? Spying on a public official Tichinin thought was engaged in
wrongdoing.
That wrongdoing? Having an extramarital affair that, Tichinin believed, resulted
in unfavorable decisions that affected Tichinin's clients, which included a
developer and a councilwoman.
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 and the 6th District Appellate Court agreed that he should get the
chance to persuade a jury that the city owes him for this distress.
"The city threw mud at me, and the Constitution splashed it back in their face,"
Tichinin said.
In 2004, Tichinin hired a private investigator to prove his theory that City
Manager Ed Tewes and then-City Attorney Helene Leichter were having an affair.
Tichinin believed that the alleged romantic involvement led to Tewes influencing
Leichter to decide against a proposed set of homes at the base of El Toro.
The investigator hired Brian Carey, who staked out a Huntington Beach hotel
where Tewes stayed during a conference in February 2004.
One night Tewes returned to his room to find two cups of hot chocolate from
room service that he had not ordered.
The next day, after talking with hotel personnel, Tewes became suspicious that
he was being followed.
As he left his room on the way to check out, Tewes made a lot of noise in his
room, and then hid in a hallway alcove and waited, assuming he would be
followed. Moments later Carey walked by with a video camera. When Carey saw
Tewes, he hid the camera. Tewes followed Carey to the lobby and later saw
Carey watching him from a distance.
Carey later admitted to ordering the hot chocolate.
Tewes said at the time that he was shaken and distressed by what he
considered to be intrusive surveillance, and he feared for his family, according to
city documents.
The city formed a surveillance subcommittee consisting of councilmen Larry Carr
and Greg Sellers. After the committee issued a final report on the matter, the
council passed a slap-on-the-wrist resolution condemning the detective work,
finding it deplorable and meritless.
The council threatened to report Tichinin to the state board, and asked him to
step down from a city subcommittee.
Tichinin says this was retaliation, and that it was within his First Amendment right
to free speech to conduct research to prove a theory for a potential lawsuit.
In 2006, a trial court dismissed Tichinin's case at the city's behest.
"My business was nearly ruined. My reputation was nearly ruined. I suffered
severe emotional distress," Tichinin said.
The same may be said for the community as a whole, according to Councilman
Greg Sellers.
"It reflected negatively on the entire community, to the extent that we got
coverage on something that reared its ugly head." Sellers said. He declined to
comment further since the case is ongoing.
Shaun Martin, a law professor at the University of San Diego who writes a blog
on California appeals court cases, agreed with the decision in principle.
"I don't think it's all that radical to say that you have the right to investigate
government officials," Martin said. "The central importance of the case is that the
court of appeals says ... citizens may have a constitutional right to investigate
(suspected misconduct) even when that involves invading the privacy of a
government official."
City Attorney Danny Wan said the city was looking forward to a full trial, noting
that the appellate court's decision was based on the motion to dismiss and not
the full presentation of facts.
Wan said the city's options are to appeal again, this time to the California
Supreme Court, or allow the case to go to trial.
Tewes said he doesn't have any thoughts on the matter and won't until Wan
recommends an option.
"I gave all the comments I had five years ago," Tewes said.
In a 2004 statement, Tewes said, "My family and I have been deeply disturbed to
learn that a local attorney, with pending matters before the city government,
arranged for a secret surveillance of my activities in an effort to discredit me and
the city attorney. That individual's conduct is reckless and harmful ... We may
never know what motivated the individuals responsible, but we know with
certainty that the belief that the city attorney and I were having an affair is
baseless and untrue. We know that some may have spread damaging rumors no
matter how false. This has been a trying time for me personally, but I have
confirmed to the City Council my intent to meet my responsibilities to the
community and the city staff without fear or favor."
Leichter, now Santa Clara's city attorney, could not be reached for comment.
She was awarded $215,000 in salary, benefits and "alleged physical injury or
sickness" in a settlement agreement when she resigned in April 2005.
As of November 2006, the Tichinin lawsuit had already cost the city $100,000,
according to a previous Times story.
Chang, who did not seek a third term as councilwoman in November 2004, is out
of town until Oct. 1, according to her voicemail message. She now serves on
California's medical board.
Brian Carey could not be reached for comment by press time either. He is now a
popular bartender in Santa Cruz County, according to his MySpace page and
other Internet sources.
Spy case: CA Supreme Court denies city's petition
Jan 13, 2010
By Natalie Everett
Morgan Hill Times
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.
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September 21, 2009
Tichinin v. City of Morgan Hill (Cal. Ct. App. - Sept.
21, 2009)
California Appellate Report
Shaun Martin
It's been a good afternoon for Morgan Hill attorney Bruce Tichinin, who just
learned that the Court of Appeal not only reversed the substantial award of
attorney's fees against him resulting from the trial court's grant of the City of
Morgan Hill's anti-SLAPP motion, but concluded that he also had a probability of
prevailing on the merits. You can't ask for much more.
Though I want to add two points, none of which relate to the merits.
First, the whole affair is disgusting. On so many levels. By "affair", I don't
mean (at all) to refer primarily to the alleged affair between the city manager of
Morgan Hill and its City Attorney, which Tichinin decided to investigate (on
behalf of some clients) by hiring a private investigator to hopefully snap some
lovely photos. I refer instead to the disgusting view of the innards of city
government that this case affords us. Yuk! I'll leave the whole thing for you to
read, but after looking at the morass here, I'd feel like taking a shower if I hadn't
taken one just 30 minutes ago. For example, Justice Rushing says that
Tichinin's client (a real estate developer) met with the city attorney and city
manager and asked them "what it would take to get [them] to see it his way or
get them on his side" -- get the hint? -- and when they demurred to his request,
that's when the developer told Tichinin to get the photos of them sleeping
together. Ewww. There's lots of other stuff -- lawsuits, retaliation, etc. -- in here
as well. Let's just say that no one comes out looking clean. And I'd much rather
see sausage being made.
Second, the fact that Tichinin wins is a testament to the Court of Appeal, and
proof that you don't necessarily have to have a good appellate lawyer to prevail.
Tichinin writes the brief himself alongside San Jose attorney Steven M. Fink. I
don't usually call out attorneys for writing bad appellate briefs. But I'll make an
exception here, because (1) I read it, (2) it's terrible as a matter of both form and
substance, and (3) since Tichinin and Fink win anyway, they can feel secure
notwithstanding my critique by saying "That just shows that Professor Martin's a
moron and doesn't know a good brief when it hits him in the face." So let me just
say: Ewwww. The two briefs they filed were not good.
So it's a double yuk afternoon
Tichinin v. City of Morgan Hill (Cal. Ct. App. - Sept.
21, 2009)
California Appellate Report
Shaun Martin
It's been a good afternoon for Morgan Hill attorney Bruce Tichinin, who just
learned that the Court of Appeal not only reversed the substantial award of
attorney's fees against him resulting from the trial court's grant of the City of
Morgan Hill's anti-SLAPP motion, but concluded that he also had a probability of
prevailing on the merits. You can't ask for much more.
Though I want to add two points, none of which relate to the merits.
First, the whole affair is disgusting. On so many levels. By "affair", I don't
mean (at all) to refer primarily to the alleged affair between the city manager of
Morgan Hill and its City Attorney, which Tichinin decided to investigate (on
behalf of some clients) by hiring a private investigator to hopefully snap some
lovely photos. I refer instead to the disgusting view of the innards of city
government that this case affords us. Yuk! I'll leave the whole thing for you to
read, but after looking at the morass here, I'd feel like taking a shower if I hadn't
taken one just 30 minutes ago. For example, Justice Rushing says that
Tichinin's client (a real estate developer) met with the city attorney and city
manager and asked them "what it would take to get [them] to see it his way or
get them on his side" -- get the hint? -- and when they demurred to his request,
that's when the developer told Tichinin to get the photos of them sleeping
together. Ewww. There's lots of other stuff -- lawsuits, retaliation, etc. -- in here
as well. Let's just say that no one comes out looking clean. And I'd much rather
see sausage being made.
Second, the fact that Tichinin wins is a testament to the Court of Appeal, and
proof that you don't necessarily have to have a good appellate lawyer to prevail.
Tichinin writes the brief himself alongside San Jose attorney Steven M. Fink. I
don't usually call out attorneys for writing bad appellate briefs. But I'll make an
exception here, because (1) I read it, (2) it's terrible as a matter of both form and
substance, and (3) since Tichinin and Fink win anyway, they can feel secure
notwithstanding my critique by saying "That just shows that Professor Martin's a
moron and doesn't know a good brief when it hits him in the face." So let me just
say: Ewwww. The two briefs they filed were not good.
So it's a double yuk afternoon