An appellate court has ruled against homeowners who sought to prevent Santa Monica City Council members from making inquiries of staff members other than the city manager.

"An injunction to prevent such communication violates the First Amendment. The First Amendment protects everyone, even politicians," Justice Arthur Gilbert wrote for the unanimous three-judge panel of the Second District, Division Six.

The lawsuit stemmed from a resident’s complaint about a neighbor’s playhouse. David and Beth Levy built a 13-foot-tall, 100-square-foot playhouse for their four-year-old son. After neighbor Tunde Garai complained about the playhouse, a city building inspector told the Levys to remodel the structure and locate it at least five feet from the rear lot line. The Levy’s reworked the playhouse, and a different building inspector then told them the structure complied with city regulations.

Garai continued to complain to the building department and to then-Mayor Ken Genser (now a councilman). In March 2000, Genser sent an email to Community Development Director Suzanne Frick asking her to investigate Garai’s complaint. Three weeks later, Genser sent Frick another email, checking on the status of Garai’s complaint and suggesting that a 15-foot setback — not a 5-foot setback — was required.

The Santa Monica City Charter states: "Except for the purpose of inquiry, the City Council and its members shall deal with the administrative service under the city manager solely through the city manager and neither the City Council nor any member shall give orders to any subordinates of the city manager, either publicly or privately."

Frick testified that she treated Genser’s emails as citizen complaints, not orders. In August 2000, the first building inspector sent the Levys a "notice of violation" and directed them to remove the playhouse or move it 15 feet from the property line.

On advice of the city attorney, the city apparently dropped the enforcement action, but the Levys sued the city and Genser anyway. They sought a declaratory judgment that the playhouse was a conforming structure, a permanent injunction to preclude city council members from engaging in acts designed to influence administrative staff members, and damages for violation of their due process rights.

The city countered that the Levys’ suit was a strategic lawsuit against public participation (SLAPP) that sought to chill a person’s right to petition and free speech. The city further argued that most of the Levys’ contentions were moot because the city rescinded the notice of violation. Los Angeles County Superior Court Judge Cesar Sarmiento ruled the lawsuit was not a SLAPP and, besides, the Levys had demonstrated a "probability of success." The city appealed that ruling, and the Second District overturned the lower court.

The appellate panel determined that the Levys’ lawsuit was, indeed, a SLAPP. "Garai’s act of contacting her representative and Genser’s act of contacting planning staff are petitions for grievances against the government protected by the First Amendment," Justice Gilbert wrote.

The injunction sought by the Levys would be "an overly broad restraint on speech which would inhibit constitutionally protected activity," the court ruled.

"Under the First Amendment, legislators are ‘given the widest latitude to express their views’ and there are no ‘stricter free speech standards on [them] than on the general public,’" Gilbert wrote, citing Eller Outdoor Advertising Co. v. Board of Supervisors, (1979) 89 Cal.App.3d 76, 80.

The city charter "defines the lines of authority within city government," but it does not prohibit protected speech, the court held.

The appellate court further ruled that the Levys’ arguments about the status of the playhouse and due process violations were moot because the city had rescinded the enforcement action.

The Case:
Levy v. City of Santa Monica (Garai), No. 15758, 04 C.D.O.S. 452, 2004 DJDAR 588. Filed January 20, 2004.
The Lawyers:
For Levy: Christopher Harding, Harding, Larmore, Kutcher & Kozal, (310) 451-2968.
For the city: Cara Silver, deputy city attorney, (310) 458-8336.