Baca v. Moreno Valley Unified School Dist.

Citation936 F. Supp. 719
Decision Date01 August 1996
Docket NumberNo. EDCV 96-0267 RT (VAPx).,EDCV 96-0267 RT (VAPx).
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
PartiesVictoria BACA, Plaintiff, v. MORENO VALLEY UNIFIED SCHOOL DISTRICT; School Board President Frank M. West, in His Official and Individual Capacity, Defendants.

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Carol A. Sobel, Mark D. Rosenbaum, Los Angeles, CA, Douglas E. Mirell, Los Angeles, CA, for plaintiff.

Spencer E. Covert, Mark S. Williams, Parker, Covert & Chidester, Tustin, CA, for defendants.

ORDER GRANTING PLAINTIFF VICTORIA BACA'S MOTION FOR A PRELIMINARY INJUNCTION

TIMLIN, District Judge.

Plaintiff Victoria Baca's (plaintiff's) motion for a preliminary injunction (motion) to enjoin the Moreno Valley Unified School District (District), Frank M. West (West), the president of District's school board (collectively defendants), and defendants' agents and employees from enforcing certain provisions of District's policy related to speech at school board meetings, was heard by the Honorable Judge Robert J. Timlin.

The court having taken the matter under submission, and after consideration of oral argument and all papers presented to the court, the court grants plaintiff's motion for the reasons set forth in the following opinion.

I. PROCEDURAL HISTORY

Plaintiff has filed a verified complaint for injunctive and declaratory relief and damages against defendants. The complaint seeks a declaration that:

(1) District's policy, which prohibits criticism of District employees during the open sessions of District's school board meetings (the policy), is an overbroad and impermissible prior restraint on plaintiff's and other citizens' rights of free speech and petition under the constitutions of the United States and California;

(2) the school board's (Board's) selective enforcement of the policy was a violation of plaintiff's right to be free of arbitrary and capricious enforcement of a governmental regulation under the constitution of the United States; and

(3) the policy is a violation of plaintiff's right publicly to share her criticisms of school administration with the Board and concerned community members pursuant to California Government Code section 54954.3, a code section found in California's open meeting law, commonly known as the Ralph M. Brown Act (Brown Act). Cal.Govt.Code, §§ 54950 et seq.1

Plaintiff also filed an ex parte application for a temporary restraining order and for an order to show cause re the issuance of a preliminary injunction enjoining defendants and their agents and employees from enforcing against plaintiff the provisions of District's policy which permitted West, as the Board president, "to deny permission to speak in the public session portion of the Board meeting to any person who mentions, by name or mere title, any public employee of the defendant school board."

This court filed an order (1) restraining defendants and their agents, employees and successors from applying and enforcing the policy during the public forum session of Board meeting and (2) requiring defendants to appear to show cause why they should not be so enjoined.

Following oral argument at the hearing on the order to show cause, the parties stipulated that the temporary restraining order could be extended until August 6, 1996, and that each side would provide the court with briefing on whether the policy applied to all public comments during the public, or open, as opposed to the executive, or closed, session of all District's Board meetings, or applied only to the public comment period of such open sessions, and whether the relief requested by plaintiff encompassed comments made during the open session of Board meetings, or only encompassed comments made during the public comment period.

Having considered such further briefing, the court concludes that the policy, by its terms, applies to all public comments during open sessions of the Board meetings. The court further concludes that the relief requested by plaintiff, i.e., a declaration that the policy suffers from the defects noted above, encompasses the policy as it applies to all such public comments.

II. FACTUAL BACKGROUND

District's policy provides, in pertinent part:

"Open Session Charges or Complaints Against Employees ... Prohibited.

"1. Employees.

"No oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee. If an attempt is made to include charges or complaints against an employee in any way, the Board President will order the presentation stopped at once, and the Board meeting will continue in accordance with the established agenda. All charges or complaints against employees must be submitted to the Board under provisions of Board policy.

"Any individual who violates this policy will be warned to discontinue his/her comments immediately. If the individual willfully interrupts the meeting by refusing to comply with the warning, the Board President may authorize the removal of the individual pursuant to Government Code section 54957.9."2

According to plaintiff's declaration, plaintiff is the parent of a student in the MVUSD, and is president of the Mexican Political Association (MPA) a statewide community activist organization. On May 28, 1996, she attended an open meeting of District's Board. This meeting included a public comment period during which citizens could comment on matters not necessarily included on the Board's meeting agenda.

During the public time period allotted for her comments, plaintiff identified by name and by reference to position two District employees: David Kuzmich, principal of Vista Heights Middle School (Kuzmich), and David Andrews, District's superintendent (Andrews), and alleged that numerous complaints brought to them by parents of children at Vista Heights Middle School went unaddressed. As she spoke, plaintiff was informed by West that she could not mention either employee by position or by name, and that another violation of the policy would result in her removal from the meeting.

Plaintiff continued her remarks and again referred to Kuzmich by position and to Andrews by position and name. She was then physically removed from the meeting by a Riverside County sheriff's deputy at the request of West. Once removed from the meeting, she was watched over by two sheriff's deputies to ensure that she did not attempt to go back into the meeting room.

Plaintiff was the only speaker to be physically removed from the room. However, other members of the public who spoke before and after plaintiff did also identified District employees by name and/or position, sometimes in a critical manner. Although some of those who spoke after plaintiff did were warned by West not to violate the policy, they were not removed.

Plaintiff states that she desires to "learn of shared concerns from other speakers and to allow them to learn of mine through use of the public comment period of the school board meeting." (Plaintiff's Declaration, p. 4, ¶ 10.) She states that she believes she was singled out for expulsion because of her out-spokenness and because of her political activities related to educational and other school-related issues.

III. DISCUSSION
A. Criteria for Issuance of a Preliminary Injunction

The traditional criteria which must be met before a preliminary injunction will issue are: (1) strong likelihood of success on the merits; (2) possibility of irreparable injury to plaintiff if relief is not granted; (3) a balance of hardships favoring plaintiff; and (4) advancement of the public interest in certain kinds of cases. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200-1201 (9th Cir. 1980). In the Ninth Circuit, a party may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Id. at p. 1201.

These are not separate tests, but the outer reaches of a single continuum. Id. The moving party has the burden of proof on each element of either test. Prescott v. County of El Dorado, 915 F.Supp. 1080, 1084 (E.D.Cal.1996). Applying the traditional criteria for issuance of a preliminary injunction to the facts of this case, the court concludes, as discussed below, that the plaintiff has met all four criteria, and that a preliminary injunction should issue.

B. Plaintiff Has Demonstrated a Strong Likelihood of Success on the Merits

Plaintiff has demonstrated that there is a strong likelihood that she will succeed on the merits, i.e., that she will succeed in establishing that: (1) speech criticizing District employees is protected from prior restraint or censorship by the freedom of speech components of the United States and California constitutions; (2) the open session of a school board meeting is a designated and limited public forum pursuant to the Brown Act; (3) regulations of speech in such fora must meet the same constitutional standards as must regulations of speech in traditional public fora; and (4) the policy is content-based, not narrowly drawn to effectuate compelling state interests, and therefore is facially unconstitutional.

1. Speech Criticizing a District Employee, Even If Later Proved to Be Defamatory, Is Protected by Both the California3 and Federal Constitutions from Government Censorship and Prior Restraint

Plaintiff contends that the policy is a prior restraint on protected expression, and as such it violates the California Constitution. Defendants suggest that plaintiff's speech "regarding child abusers and racists" is not protected by the First Amendment because it is slanderous and is a "false light...

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