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Marin County’s Retaliatory Cross Complaint to Limit Access to Public Records

Hot on the heels of being caught trying to charge the public for access to public records [1], in violation of the California Public Records Act, the County once again finds itself in hot water of its own brewing. As those who’ve dealt with Marin County Counsel’s Office in the past few years can attest, our county’s attorneys have become increasingly hostile in their dealings with the general public. However, one of their recent actions under the leadership of new County Counsel, Brian Washington, is unprecedented even for them.

“SLAPP” is a legal term used to define a retaliatory “strategic lawsuit against public participation,” filed by a public agency against a member of the public to prevent them from participating in government affairs. Such lawsuits are considered a violation of an individual’s “right of petition or free speech in connection with a public issue.”

Unsurprisingly, SLAPP lawsuits are illegal in California.

On September 5th, Los Angeles attorney and Vice President for Open Government at Californians Aware, Kelly Aviles, filed an “Anti-SLAPP” lawsuit against the County of Marin. In her Special Motion, she charges that the County violated those rights of petition and free speech. But, this was not just a case where the County Counsel took retaliatory action against a resident. It turns out that Ms. Aviles’s client is Edward Yates, a dedicated, community advocacy attorney here in Marin, who was in the act of representing a local community group seeking public records.

On March 15, 2017, Mr. Yates had filed a Petition for Writ of Mandate, Injunctive and Declaratory Relief for Violations of the California Public Records Act on behalf of his client, Friends of West Tam Valley (the “Friends”), for the County’s failure to provide public documents, in violation of the California Public Records Act.

But, not only had the County failed to respond to repeated requests for documents, in response to being sued by the Friends in Marin Superior Court, for that failure, instead of working to settle the case or provide the documents in question, or even provide a legitimate reason for that failure to produce documents, the County turned around and filed a frivolous and unsubstantiated cross-compliant against the attorney representing the Friends!

As I said, this is unprecedented, even for them.

As noted by Ms. Aviles in her Anti-SLAPP petition, “The County’s egregious and meritless cross-complaint amounts to a classic, retaliatory SLAPP lawsuit.” Ms. Aviles goes on to call the County’s actions a “frivolous Cross-Complaint in bad-faith intent to harass both Yates and Plaintiff.”

In her Special Motion to Strike Cross-Complaint Filed By County Of Marin Against Edward Yates Under CCP 425.16 (Anti-SLAPP), Ms. Aviles explains that the County doesn’t really care about the legal merits of their SLAPP suit against Yates. Their true goal is to exhaust the financial resources of both the attorney and his clients, The Friends, so both will just go away and drop their Public Records Act lawsuit against the County.

This is a classic maneuver aimed to defeat community engagement. Aviles points out that as noted in Chavez v. Mendoza (2001)

SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff….[ ] Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. [ ] But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective. [ ] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [ ] The SLAPP strategy also works even if the matter is already in litigation because the defendant/cross-complainant hopes to drive up the cost of litigation to the point where the plaintiff/cross-defendant will abandon its case or have less resources available to prosecute its action against the defendant/cross-complainant and to deter future litigation.[Emphasis Added]

But as if all this wasn’t enough, the County Counsel’s attack on Yates, dug even deeper into their bag of dirty tricks and has gone even further afield.

The Backstory

In early 2016, Community Venture Partners was contacted by a group of homeowners in an unincorporated area in Tam Valley, known as Garden Valley Park. They were requesting assistance with a planning matter in their area. They called themselves the Friends of West Tam Valley.

It seems that a group of developers had been quietly buying up “paper lots” on an old subdivision, shown on County Maps dating back to 1919. Even to an untrained eye, it appeared that the developer’s intentions were to purchase all the lots in the old subdivision, then apply for permits to construct single family homes, one at a time, in order to avoid compliance with new subdivision regulations governing lot sizes, emergency access, slopes and most significantly any review under the California Environmental Quality Act (“CEQA”).

In April of 2016, the Tam Design Review Board rejected the developer’s single family home application, stating that

TDRB is concerned that this Design Review request is a Trojan Horse for a future sub-division along the present paper streets.

This mirrored the concerns that the community had been having for years. Their story is detailed in their May 2016 letter to Ms. Alicia Giudice, Project Planner at the Marin County Community Development Agency/Planning Division, which can be read in its entirely by clicking here.

For its part, CVP helped the community wade through a labyrinth of documents and governing regulations, and has generally advised them. We felt that the community’s concerns were not only legitimate but that the County was continuing to process this development application in a haphazard and totally uncoordinated manner: one agency seemed to have no idea what another was doing, e.g., County Planning and County Public Works didn’t seem to even know that the other was also working on the application, simultaneously.

In concert with that, CVP introduced the Friends to expert land use and CEQA attorney, Edward Yates. Mr. Yates met with the Friends and advised them on how to go about getting all the information needed to evaluate all the legal issues involved, which included the California Map Act, County subdivision and paper street’s ordinances, County Recorder’s sales transaction records, CEQA, and much more.

Subsequently, the Friends made several requests for public documents. After months of attempts by the Friends to unsuccessfully obtain access to all the documents they had requested, Yates submitted a Public Records Act requests “on behalf of Friends,” to the County of Marin, on September 10, 2016.

Six months later, after exhaustive efforts to obtain all the documents, had failed, in March of 2017, Yates filed a Verified Petition for Writ of Mandate, Injunctive Relief and Declaratory Relief for Violations of the California Public Records Act, on behalf of Friends of West Tam Valley.

This challenge was expected to be heard by the Marin Superior Court in due course, until the Office of the County Counsel threw everyone a curve and filed a Cross-Complaint of County of Marin and Demand for Jury Trial on June 30, 2017.

The County’s attempt to intimidate

In its cross-complaint, the County alleged that Edward Yates, the attorney for Friends of West Tam Valley, had made false statements and that “the records he requested for copying were for a specified purpose that was untrue and false.” The gist of their argument boils down to alleging that Yates was acting on his own and not representing the Friends, simply because during this entire 6 month ordeal, he communicated with different County officials and in writing letters may have used the words “I am requesting” without specifically stating, in each instance, that he was doing so as the representative of the Friends (even though the entire PRA process clearly began with his PRA “on behalf of Friends of West Tam Valley”).

This action by County Counsel seems beyond desperate. In my 45+ years in business, attorneys representing me have engaged in endless communications with agencies, their employees and defendant’s counsel in every imaginable way. This type of accusation is so ridiculous that on its face that it would be laughable.

However, the County Counsel was not content to stop there.

In their cross-complaint, the County goes on to accuse Mr. Yates of violating the California State Bar’s Rule of Professional Conduct 2-100, which states: "While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." The County goes on to attempt to also construe all of this to be a violation of the California False Claims Act.

Wow. Talk about reaching for ways to divert attention from the issue at hand: that the County not only failed to provide public records, but failed to even adequately respond to a series of offers to meet and try to resolve differences prior to the filing of the Friends’ lawsuit.

The Anti-SLAPP lawsuit

The Anti-SLAPP motion filed by Aviles makes quick work of the County’s far-reaching claims. As she notes,

Rule 2-100 contains a specific exception which confirms Yates’ conduct was not only proper, but was itself petitioning activity. Rule 2-100(c) permits an attorney to contact a represented public official about the subject of the representation. The purpose of the rule, as noted by the California State Bar in State Bar Formal Op. No. 1984-82 [interpreting a nearly identically worded exception to the predecessor rule to Rule 2-100] is to “preserve inviolate the right of all citizens to petition their government as protected by the First Amendment to the United States Constitution.

And further that

[u]nder the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.[2]

Aviles similarly dissects the County’s allegations regarding the False Claims Act and other so-called violations.

However, what is truly odd in all this is this: why would the County Counsel introduce allegations of violations of the California State Bar’s Rules of Professional Responsibility, into a proceeding in Marin Superior Court, when they know well that the court has no jurisdiction in such matters and cannot in any way allow those allegations to affect their decision?

So, what possible purpose does any of this serve?

What really demonstrates how disingenuous the County is in its claims against Yates is this. If the County was so sure about Mr. Yates’s conduct being in violation of State Bar Rules, why didn’t they bother to actually file a complaint at the State Bar alleging such (something which they somehow never bothered to do), instead of inappropriately bringing it into proceedings in Superior Court, which has no jurisdiction in the matter? Unless, of course, the only reason they made this thinly veiled threat in the first place, was to do exactly what Ms. Aviles charges in her Motion: it was an attempt to intimidate the community and their legal counsel into dropping the case.

The final irony in all this is that by making unsubstantiated threats that Yates violated the California Bar’s Rules of Professional Conduct, in their cross-complaint, the County Counsel has in fact blatantly violated Rule 5-100, Threatening Criminal, Administrative, or Disciplinary Charges, which states

(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

The twist is that if the County had actually filed a complaint with the Bar, they might be able to claim some kind of ethical standards. But, to allege a Rules violation by Yates as part of the basis of their complaint in a court that has no jurisdiction in the matter, and to not even file a complaint with the Bar (because they really don’t have a legitimate complaint) means the only reason the County introduced this in their argument is to intimidate Yates and the Friends. And, that is not just reprehensible but a clear cut violation of Rule 5-100.

The “Take no prisoners” culture at the County

The County’s allegations in its Cross-Complaint of County of Marin and Demand for Jury Trial appear to be a shameless attempt to silence the public’s voice and shut out legitimate questioning of what our government is doing. Unfortunately, this is nothing new.

CVP confronted the same hyper-aggressive behavior by the County Counsel’s office in reaction to our successful challenge against the Board of Supervisors for their violation of the Brown Act. It remains my opinion that the Supervisor’s refusal to ever fully admit guilt in the Brown Act case has emboldened this type of “take no prisoners” attitude by the Office of the County Counsel. It often seems as if the County Counsel’s office has never seen a lawsuit they didn't want to take on, no matter how hopeless the outcome.

This is no longer unusual in Marin.

The more involvement CVP has had with the city and county attorneys around Marin, the more it seems that these attorneys no longer question whether the government’s actions are ethical or fair, but only whether or not they can legally get away with it.

Everyone who practices law in Marin County should be alarmed and outraged by these actions by the Office of the County Counsel. This culture of disrespect for the law and rights of Marin residents needs to change.

However, what is equally disturbing is that this is all happening directly under the watch of our Marin Board of Supervisors, which has the power and the responsibility to stop abuses of government power and the mounting costs associated with it.

I'm calling on the Board of Supervisors to do the right thing and launch an independent investigation into the conduct of the County Counsel's office, to examine why their behavior has become increasingly litigious. Let me remind the Board that it is not the County Council's charge to act solely as if they are private defense attorneys, using any tactics available so long as their client wins.

As published on the County web site:

The mission of the County Counsel’s Office is to provide high quality and timely legal services supporting the County of Marin’s mandated and discretionary governmental functions. Advisory and litigation services are furnished to County departments, boards and agencies in a manner that is cost-effective, professional and promotes excellence in delivery of government services contributing to the health, safety and welfare of county residents and visitors.[Emphasis Added}

It is time they were held to that standard.

[1] The County has claimed that the legislation to charge citizens $114.63 per hour for access to public records was a “mistake,” but the bill was only stopped at its second reading, long after its wording had been reviewed by the Office of the County Counsel.

[2] Contreras, supra, 5 Cal.App.5th at 408–409 (quoting Cabral v. Martins (2009) 177 Cal.App.4th 471, 479–480); see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [attorney who files or prosecutes a civil action on behalf of a client qualifies for protection under the anti-SLAPP statute]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418–1420 [attorney’s act of representing client in connection with protected petitioning or speech activities is protected by anti-SLAPP statute.]