Bauer: not accustomed to litigation (back then, anyway)
3 parts:
- PART ONE. Bauer successfully sues the district, citing the 1st Amendment, when the Chancellor puts a letter in his file accusing him of violating two district policies ("workplace violence" and "antidiscrimination") in and by his newsletters, Dissent and the Vine.
- PART TWO. Bauer is sued by IVC President Raghu Mathur for reporting on Mathur's history of lying in the district/college. Bauer employs the anti-SLAPP statute and counter-sues, successfully.
- PART THREE. The SOCCCD board of trustees repeatedly violates California's "open meetings" law, the Brown Act, and so Gabriella, Bauer, et al. sue the district, successfully.
From Dissent 60, 10/22/01
I, Chunk
During this early period [i.e., 1997], I, Chunk, produced and distributed several satirical newsletters at IVC. By early ’97, my chief publication was called the ‘Vine. By mid-1998, the ‘Vine was largely replaced by Dissent, distributed unevenly, district-wide.
By design, the newsletters, to which several writers contributed, emphasized one overriding district truth: that a gang of greedy and disgruntled faculty—Mathur, Mickey No-Neck, “Baño” Bob, et al.—had made a pact with four opportunistic little devils—the Board Four—and, together, this crew was razing everything worthwhile that had been built.
It was difficult keeping up with the Dark Side’s crimes, hijinks, and peccadillos, but we gave it the old college try. Some people thought we were makin’ things up, what with tales of pants-droppings, loogie assaults, neo-Nazi rallies, gay-bashing, secret bank accounts, and all the rest. In reality, we were tonin’ down the facts, worried no one would believe them in unmitigated form.
‘Vine/Dissent was a hit. Early on, readers sent me “thank you” notes, cash, writings, and suggestions.
Dark Siders really hated Dissent, and they really hated me. Whenever I visited Saddleback, Lee Walker would get under foot, pestering me à la Ratso Rizzo, only without Ratso’s polish and good looks. Ken Woodward, too, would noisily orbit and sneer, offering such jibes as, “I’ve got a Ph.D. in economics. Nnnyeh!”
Such episodes were mostly comical. Others were creepy. Whenever Walter confronted me, as he sometimes did, his quakage and sputterage looked like a heart attack. Once, as I dined at a restaurant, Patrick F appeared from out of nowhere, pointing at me, shouting, “Those who live by the sword, die by the sword!” He trembled. I do believe he soiled his trousers.
Mostly, all we had to do was point reporters in a certain direction. We didn’t have to add anything; they’d make their own sauce.
Our success with the press had nothing to do with bias. Hey, if, over time, you never lie or exaggerate or cry wolf, people start trusting you. That’s the secret, but it only works if you’re on the side of the angels. Rat Bastards need to hire Zanelli.
But Dark Siders naturally assume that everybody’s a lyin’, manipulatin’ piece o’ sh*t. Inevitably, to such people, if you get your side, your story, across to the public via the news media, you must be pullin’ a fast one somehow.
The “JFK forum” episode
“Oh, get out of here!…You couldn’t find ... more embarrassing conspiracists in America. Even among conspiracy theorists, these people represent the outer limits.”
—Chip Berlet of Political Research Associates, commenting on the “experts” invited for Frogue’s assassination forum (Times)
Some truths really ought to be revealed, especially when they concern the fate of hundred million dollar chunks of taxpayer cash. The Board Four’s breathtaking intellectual incompetence was such a truth.
On the morning of the August 18, 1997, board meeting, a colleague alerted me to board agenda item 13. It said
Several speakers have been invited to participate in [board president Frogue’s Fall] forum on the JFK Assassination. Expenses for travel, accommodation and/or honoraria are estimated below:
Sherman Skolnick: Not to exceed $1,500.00
Dave Emory: Not to exceed $1,000.00
John Judge: Not to exceed $1,000.00
Michael Collins Piper: Not to exceed $1,000.00
“Hmmm,” thought I. “Isn’t Piper the boy reporter for Spotlight?”
I made a heads up call to the ADL’s Joyce Greenspan, telling her what I knew about Piper, namely, that he worked for Spotlight, the nation’s #1 anti-Semitic newspaper, published by the nation’s #1 anti-Semite, Willis Carto. I advised her to look into Frogue’s other speakers too.
That night, Joyce addressed the board, informing them about Carto, Spotlight, and Piper. She explained that Skolnick, another Frogueian guest, was on Spotlight’s advisory board. Joyce urged the board not to approve item 13.
Frogue responded by explaining Piper’s theory—how the CIA and the Israelis conspired to kill JFK, etc. Piper’s theory, like dozens of similar yarns, is based on poor scholarship and dreadful reasoning. That is why it is not taken seriously by scholars. That is why Frogue’s “forum” was wrong for SOCCCD. Colleges should have standards.
The anti-intellectual Four understood none of this. They happily approved item 13, thereby demonstrating their utter incompetence.
The next morning, I phoned the Times’ Michael Granberry. Two days after that, the front page of the Times roared: “O.C. College Course Claims JFK Conspiracy.” Granberry’s article, which was picked up across the country, revealed that Frogue’s “experts” were pots so cracked that they even embarrassed world crackpottery. Thus it was that, for a day or two, our board and district became a national joke, an object of fun and frettage among Arianna Huffington, George Will, and the rest of American political blabbermouthery.
For the Featherbrained Four, it was an embarrassment of Biblical proportions. They had no one to blame but themselves.
The last straw?
While the “JFK” fiasco—and resultant recall effort—raged, our Brown Act lawsuits (Wendy Phillips, now “Gabriella,” was one of the attorneys) moved through the courts. Late in ’97, Superior Court Judge Macdonald ruled in my favor in “Bauer I,” as it was called. By late ’98, it became clear that Judge Seymour would do the same in “Bauer II.” Despite Zanelli’s endless haystack spinnage, the Four were getting slaughtered, PR-wise.
A coupla weeks after the trustee election of November 1998, I published a guest column in the Sunday OC Register, revealing anew the ugly truth about our swine and their union piglets. Despite its relatively high profile, the article probably did more to catch parakeet droppings than to win hearts and minds. Still, it must have infuriated the Four.
Maybe it was just coincidence, but, a few days after the column appeared, without a hint of warning (contra board policy), I received a letter from Chancellor Cedric Sampson informing me that, in his opinion, I had violated the district’s “workplace violence” and “discrimination/harassment” policies.
Evidently instigated by Mathur, the letter, which (contra the contract) was already in my personnel file, claimed that I had been (a) making life miserable for faculty of the “Christian religious experience,” (b) using a racist term to refer to Mathur, and (c) publishing violent and threatening things in my newsletters.
In a follow-up letter, I was ordered to seek counseling.
“Good grief,” I said.
Mr. Shit
By then, despite his staunch Republicanism, Raghu already had a history of playin’ the “race” and “threat” cards, when convenient. At various times, dating back to long before my entrance into district politics, Mathur claimed to receive threatening and racist email, voicemail, and snail mail. (It is worth noting, however, that, during a 1999 deposition, he acknowledged his inability to document any of these alleged “threats.” [See Register, 1/7/00]. What’s that tell you?)
The notion that I was tormenting Christians stemmed from Mathur and Co.’s amazing ignorance. When deposed, Mathur and Sampson acknowledged unfamiliarity with Pat Robertson’s right-wing political organization, named “Christian Coalition.” (Jerry Falwell’s recent remarks that blamed the Sept. 11 attacks on lesbians, et al., were made on Robertson’s TV show.) So, since I have never criticized Christians or Christianity, I can only surmise that the Ignorami Twins had mistaken Dissent’s one or two snide references to Robertson’s political organization for a criticism of Christianity and Christians.
My so-called racist term for Mathur was “Mr. Goo,” which, according to me, was an allusion to the cartoon character Mr. Magoo, but, according to Sampson, was a reference to the racist term “gook.”
Mathur hails from India where Hindi is spoken. It turns out that, in Hindi, “guh” means “excrement,” a fact that, months later, district lawyers gleefully seized upon. It was news to me.
In the lawyers’ view, I guess, if you call a guy “Mr. Shit,” you’re a racist. I don’t get it.
The six elements
El Ced’s disciplinary action was based specifically on six newsletter elements, the most celebrated of which appeared in a piece about a 1998 trustee candidates’ debate:
[The debate] started with a reading of a prepared statement by [the absent Nancy] Padberg in which she offered the usual bland campaign promises … Padberg also spoke—er, wrote—of the need to bridge the “gap” between the warring sides in the district. Evidently, she believes that the sides can come together and be pals again—perhaps by means of a carefully planned Halloween party. I don’t think so. I, for one, have etched the name of Sherry “Realpolitik” Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite, which I hope someday to drop on Raghu Mathur’s head. (Dissent, 11/2/98)
Another element was some laughably lurid “crime fiction” artwork, depicting a hatchet murderer and sporting the words: “Crime: Tales of the Back Door Gooster”—i.e., tales of Mathur’s crimes. Another was the acronym MAIM (“Mathur-Milosevic Academic Integrity Matrix”), used by Dissent contributor Red Emma to liken Mathur to the Yugoslavian dictator. Yet another was a still from an old science-fiction movie concerning “downsizers.” This, said Ced, was evidence of my “obsession with weaponry.”
Lawyers, guns, and money
The Chancellor ordered me to meet with him in his office, where he informed me of my “violations.” (The letters were already in my file.)
After the meeting, my then-lawyer, Bill S., who had accompanied me, was stunned by El Ced’s stupidity and unreasonableness. Bill wasn’t sure what I should do. He looked at me and asked, “Would you be willing to go to the counselor?” I looked skeptical. He added: “Don’t be buyin’ a Ferrari or anything. Save your money.”
A few weeks later, I got Bill’s bill: $1,500.
Probably, the Dark Side expected me just to soften Dissent. As it turns out, a week or so before I received the letter, I had told friends that I was abandoning the newsletter, not out of fear, but out of a sense of the unseemliness of assuming personal risks when my colleagues, judging by their persistent silence and inaction, were, with a few exceptions, unwilling to assume even the slightest risk in combating the Dark Side. I found a towel and threw it in.
But now I was a First Amendment poster boy. The Dissent continued.
Our strategy: to win a “summary judgment.” Essentially, you win a summary judgment when the judge thinks a trial is unnecessary cuz your opponents don’t have a leg to stand on.
Federal court preliminaries
The district’s lawyers—Rutan and Tucker—commenced shoring up the district’s weak legal position. Using declarations solicited from Raghu’s unsavory Old Guard and classified allies, the district concocted a case for my being the district bully, the cause of all recent districtular difficulties, including the Accrediting warning.
The flim-flam flopped. In March of ‘99, Federal Judge Nora Manella, calling the Chancellor’s action against me “Orwellian,” issued a preliminary injunction, declaring the six newsletter items to be “protected speech” and enjoining the district from wielding the two policies to restrict speech and from enforcing the counseling order.
Manella next set to work on her ruling regarding the summary judgment.
Victory, part I
The case was then handed off to Federal Judge Gary Feess (of subsequent DNC and Ramparts fame), who, finally, in October of ‘99, granted the summary judgment in my favor, arguing that my speech was “protected” and that the counseling order was improper. In Feess’ view, both district policies were unconstitutional “as applied,” but the workplace violence policy was also unconstitutional on its face (i.e., it was intrinsically unconstitutional). We had not expected—and, frankly, did not need—the latter “facial” ruling.
In court, Feess ridiculed Ced’s “threat” malarkey. “No reasonable person,” declared Feess, “could have concluded that [Bauer’s] written words … constituted a serious expression of an intent to harm or assault.” He especially derided Ced and Goo’s granite slab worries.
According to Feess, it was “hard to understand what administration was thinking” when they took the action against me. He opined that Mathur’s direction to me (in an evaluation) to “make things nicer” seemed to him to be a possible violation of the First Amendment all by itself. “It’s a college campus.” If you can’t “speak your mind” there, he asked, then where?
Contrary to Larsen’s clients, said Feess, there was no evidence that I was responsible for the district’s problems.
In response, the district’s lawyer, David Larsen, insisted that some faculty (Sherry Miller-White, et al.) feared voicing their opinions, but Feess judged those fears to be “beyond reason.”
“But,” said Larsen, “this is an individual who has been involved in face-to-face threats”! He was referring to the hilarious and hysterical Old Guard declarations from Woody and his pals.
Feess wasn’t buying it. Said he, “That was never a basis which was given in 1998 and that is an after-the-fact attempt to shore up what was a plainly inadequate basis for the discipline.” He added:
I understand that a lot of people would like to do business behind closed doors, that they would like to make decisions that they don’t have to explain, that they would like to come to conclusions and judgments and issue policy without having anyone present to listen and hear and to understand and therefore to make rational, powerful, criticisms of them. That’s just too bad under our system…And if people are afraid of going to meetings and speaking up because … they’re going to be the subject of criticism in a publication, that’s…just life under the First Amendment… I just think this is a case where that concept, a legitimate concept [“workplace violence”], is being stretched for the purpose of taking a vigorous critic of the administration and the board of trustees and trying to keep [him] quiet.
Carol was awarded $127,00.
Next thing I knew, the Board filed an appeal, which meant, among other things, that Carol wouldn’t be getting paid any time soon—and the letters would remain in my file for the time being.
The appellate hearing
A year and a half passed. The appellate hearing—at the 4th Court of Appeals, in Pasadena, with Rymer, Hawkins, and Gould presiding—finally occurred in May of this year. The judges heard oral arguments; they then conferred and produced their opinion.
The hearing was frustrating. Larsen, evidently driven to desperation by the poverty of his case, distorted and invented facts.
The discussion largely focused on the constitutional status of the district’s workplace violence policy in particular, which, again, Feess judged to be unconstitutional, not only “as applied,” but facially. Right away, Judge Rymer objected to the vagueness and oddness of the policy insofar as it referred to “violence overtones.” On the other hand, she could not see, she said, how the policy was unconstitutional on its face: why not just delete the problematic phrase?
Larsen struggled to defend the relevance of the district’s highly convenient after-the-fact declarations. He argued that the six elements needed to be viewed “in context”—namely, my angry and violent conduct, as revealed in Woody and Glenn’s declarations and Larsen’s impromptu courtroom fabrications. I had caused district employees—Sherry—to be “very frightened,” said Larsen.
Carol, always at her best in such settings, noted that, to qualify as truly threatening, an instance of speech must be unequivocal and immediate, threatwise. My speech, she argued, did not come “within a mile” of that standard. Concerning the six elements, the judges seemed to agree. But, asked Rymer, hadn’t I actually gone to individuals and threatened them?
“What are you referring to?” responded Carol. Carol knew that Larsen was distorting and exaggerating what appeared in the briefs and declarations.
Rymer seemed willing to concede that my expressions had been satirical and not violent. But, she asked, how can the whole “workplace violence” policy be unconstitutional on its face? “I just don’t get it,” she said.
Judge Gould spoke; he seemed to have his doubts even about the policy’s unconstitutionality as applied. Maybe the “college” needs its day in court, he said.
Things seemed to be going badly, I thought, but then Judge Hawkins, who had said nothing, ended the hearing by asking Larsen a series of revealing questions:
Were any of these alleged threatening incidents cited in the original disciplinary actions?
No, admitted Larsen, but they were “the backdrop” of the action.
“Really?” asked Hawkins. No references to these incidents were made in the disciplinary letters?
No, admitted Larsen, but, he added, you’ve got to consider “context.”
Hawkins then asked if I had done anything physically to anyone.
Well, no.
Had I brought a weapon to school?
No.
Did I have any history of violence, of shoving, anything like that?
No.
Did I have any history of arrests or confrontations?
Nope.
Victory, part II
The judges issued their judgment in August. Hawkins, representing Rymer and himself (i.e., a majority), wrote the ruling.
Essentially, I prevailed: Judge Feess’ judgments were upheld, with one exception: though the district’s policies are both unconstitutional as applied, in the appellate court’s judgment, the district’s workplace violence policy is facially unconstitutional only in part. Wrote the court:
[Bauer’s] writings and illustrations were prepared during a traumatic time for IVC and the District…The Accrediting Commission attributed the turmoil partially to OC’s financial troubles and primarily to a four-to-three split on the District’s Board of Trustees… [Bauer] voiced his disapproval in a campus newspaper called “Dissent.”….
We agree with [Feess’] analysis that the policies were unconstitutionally applied to Bauer because “though at times adolescent, insulting, crude and uncivil, Bauer’s publication focuses directly on issues of public interest and importance.” We also agree with [Feess] that Bauer’s statements were not “true threats” and that the District’s rights as an employer were not impermissibly burdened by Bauer’s expression….
We agree with [Feess’] holding that although Bauer’s writings have some violent content, they “are hyperbole of the sort found in non-mainstream political invective and in context…are patently not true threats.” (Emphasis in original.)….
Within the larger context of the turbulent IVC campus community, the conduct alleged by Sampson does not transform Bauer’s expression into “true threats.” We agree with [Feess’] that there is simply no way a reasonable reader would have construed [Bauer’s] writings and illustrations to be “true threats,” even if that reader were aware of all of the other conduct alleged by Sampson [my emphasis]….
In light of the Accrediting Commission’s report…, it can hardly be said that Bauer was the source of the disharmony on IVC’s campus. IVC and the District were going through a contentious period—Bauer’s commentary on these troubles may have raised awareness, but the expression certainly did not cause them…[A]nyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams….
[Judge Feess] correctly ruled that [the district’s workplace violence policy] is unconstitutional on its face because it prohibits speech with violent ‘overtones’ that falls short of being threatening. However, the…court erred in holding that the entire workplace violence policy is facially unconstitutional…The…court correctly ruled that the Board’s policies on racial discrimination…and workplace violence are unconstitutional as applied to Bauer.
As things now stand, Carol will be awarded about $200,000 in fees, to be paid by the district. No doubt the district has already spent much more than that for Rutan and Tucker’s services.
The press took some interest in the victory:
The Times, August 16, 2001:
College District Loses Appeal in Discipline Case
Each state has "open meeting" laws that forbid secrecy among "legislative bodies," such as city councils and water and school boards. In the state of California, these laws are known as the “Ralph M. Brown Act.”
[The board ignored us. We filed a lawsuit and prevailed. This occurred more than once. Eventually, ruling against the board, the judge referred to its “persistent and defiant disregard” of the law.]
[The following essay was part II of a much longer essay called “A Swine County Almanac.” Part I, which told the tale of the Board Majority circa 1997-8, was entitled “three disgruntled part-timers and a bailiff.” Part II seemed to be entirely about my own 1st Amendment battles.]
[See also ARCHIVES: January 1999, for Bauer's account of being called into Sampson's office and ordered to seek anger management counseling!]
* * *
During this early period [i.e., 1997], I, Chunk, produced and distributed several satirical newsletters at IVC. By early ’97, my chief publication was called the ‘Vine. By mid-1998, the ‘Vine was largely replaced by Dissent, distributed unevenly, district-wide.
By design, the newsletters, to which several writers contributed, emphasized one overriding district truth: that a gang of greedy and disgruntled faculty—Mathur, Mickey No-Neck, “Baño” Bob, et al.—had made a pact with four opportunistic little devils—the Board Four—and, together, this crew was razing everything worthwhile that had been built.
It was difficult keeping up with the Dark Side’s crimes, hijinks, and peccadillos, but we gave it the old college try. Some people thought we were makin’ things up, what with tales of pants-droppings, loogie assaults, neo-Nazi rallies, gay-bashing, secret bank accounts, and all the rest. In reality, we were tonin’ down the facts, worried no one would believe them in unmitigated form.
‘Vine/Dissent was a hit. Early on, readers sent me “thank you” notes, cash, writings, and suggestions.
Dark Siders really hated Dissent, and they really hated me. Whenever I visited Saddleback, Lee Walker would get under foot, pestering me à la Ratso Rizzo, only without Ratso’s polish and good looks. Ken Woodward, too, would noisily orbit and sneer, offering such jibes as, “I’ve got a Ph.D. in economics. Nnnyeh!”
Such episodes were mostly comical. Others were creepy. Whenever Walter confronted me, as he sometimes did, his quakage and sputterage looked like a heart attack. Once, as I dined at a restaurant, Patrick F appeared from out of nowhere, pointing at me, shouting, “Those who live by the sword, die by the sword!” He trembled. I do believe he soiled his trousers.
Making their own sauce
In ‘97, for PIO, the district hired Pam Zanelli, who functioned as a political consultant and flack for the Four, or so said the Three. Zanelli was the “professional” who, only months earlier, urged her then-clients, the union Old Guard, to use the “same-sex domestic partners” gambit to get Frogue, Williams, and Fortune elected and protect “life as we know it.”
She has a haystack on her head.
Naturally, what with the addition of a full-time Board Majority propagandist, some of us began talking to the press more often, givin’ ‘em the skinny. By early ’97, I (along with a few other rebels) had become adept at puttin’ local news hounds on the scent of stories that, invariably, embarrassed the Four, the union Old Guard, and Mr. Goo. Zanelli’s transparent spinnage was a weak force in this universe.
[Bauer’s] got some pipeline to the LA Times. I wish I knew what it was!
—Ken Woodward, on KPFK’s “Lawyers’ Guild,” 2/19/98
In ‘97, for PIO, the district hired Pam Zanelli, who functioned as a political consultant and flack for the Four, or so said the Three. Zanelli was the “professional” who, only months earlier, urged her then-clients, the union Old Guard, to use the “same-sex domestic partners” gambit to get Frogue, Williams, and Fortune elected and protect “life as we know it.”
She has a haystack on her head.
Naturally, what with the addition of a full-time Board Majority propagandist, some of us began talking to the press more often, givin’ ‘em the skinny. By early ’97, I (along with a few other rebels) had become adept at puttin’ local news hounds on the scent of stories that, invariably, embarrassed the Four, the union Old Guard, and Mr. Goo. Zanelli’s transparent spinnage was a weak force in this universe.
Mostly, all we had to do was point reporters in a certain direction. We didn’t have to add anything; they’d make their own sauce.
Our success with the press had nothing to do with bias. Hey, if, over time, you never lie or exaggerate or cry wolf, people start trusting you. That’s the secret, but it only works if you’re on the side of the angels. Rat Bastards need to hire Zanelli.
But Dark Siders naturally assume that everybody’s a lyin’, manipulatin’ piece o’ sh*t. Inevitably, to such people, if you get your side, your story, across to the public via the news media, you must be pullin’ a fast one somehow.
“Oh, get out of here!…You couldn’t find ... more embarrassing conspiracists in America. Even among conspiracy theorists, these people represent the outer limits.”
—Chip Berlet of Political Research Associates, commenting on the “experts” invited for Frogue’s assassination forum (Times)
Some truths really ought to be revealed, especially when they concern the fate of hundred million dollar chunks of taxpayer cash. The Board Four’s breathtaking intellectual incompetence was such a truth.
On the morning of the August 18, 1997, board meeting, a colleague alerted me to board agenda item 13. It said
Several speakers have been invited to participate in [board president Frogue’s Fall] forum on the JFK Assassination. Expenses for travel, accommodation and/or honoraria are estimated below:
Sherman Skolnick: Not to exceed $1,500.00
Dave Emory: Not to exceed $1,000.00
John Judge: Not to exceed $1,000.00
Michael Collins Piper: Not to exceed $1,000.00
“Hmmm,” thought I. “Isn’t Piper the boy reporter for Spotlight?”
I made a heads up call to the ADL’s Joyce Greenspan, telling her what I knew about Piper, namely, that he worked for Spotlight, the nation’s #1 anti-Semitic newspaper, published by the nation’s #1 anti-Semite, Willis Carto. I advised her to look into Frogue’s other speakers too.
That night, Joyce addressed the board, informing them about Carto, Spotlight, and Piper. She explained that Skolnick, another Frogueian guest, was on Spotlight’s advisory board. Joyce urged the board not to approve item 13.
Frogue responded by explaining Piper’s theory—how the CIA and the Israelis conspired to kill JFK, etc. Piper’s theory, like dozens of similar yarns, is based on poor scholarship and dreadful reasoning. That is why it is not taken seriously by scholars. That is why Frogue’s “forum” was wrong for SOCCCD. Colleges should have standards.
The anti-intellectual Four understood none of this. They happily approved item 13, thereby demonstrating their utter incompetence.
The next morning, I phoned the Times’ Michael Granberry. Two days after that, the front page of the Times roared: “O.C. College Course Claims JFK Conspiracy.” Granberry’s article, which was picked up across the country, revealed that Frogue’s “experts” were pots so cracked that they even embarrassed world crackpottery. Thus it was that, for a day or two, our board and district became a national joke, an object of fun and frettage among Arianna Huffington, George Will, and the rest of American political blabbermouthery.
For the Featherbrained Four, it was an embarrassment of Biblical proportions. They had no one to blame but themselves.
The last straw?
Cedric Sampson
A coupla weeks after the trustee election of November 1998, I published a guest column in the Sunday OC Register, revealing anew the ugly truth about our swine and their union piglets. Despite its relatively high profile, the article probably did more to catch parakeet droppings than to win hearts and minds. Still, it must have infuriated the Four.
Maybe it was just coincidence, but, a few days after the column appeared, without a hint of warning (contra board policy), I received a letter from Chancellor Cedric Sampson informing me that, in his opinion, I had violated the district’s “workplace violence” and “discrimination/harassment” policies.
Evidently instigated by Mathur, the letter, which (contra the contract) was already in my personnel file, claimed that I had been (a) making life miserable for faculty of the “Christian religious experience,” (b) using a racist term to refer to Mathur, and (c) publishing violent and threatening things in my newsletters.
In a follow-up letter, I was ordered to seek counseling.
“Good grief,” I said.
Mr. Shit
“I feel discriminated.”
—Raghu Mathur, 10/9/89
By then, despite his staunch Republicanism, Raghu already had a history of playin’ the “race” and “threat” cards, when convenient. At various times, dating back to long before my entrance into district politics, Mathur claimed to receive threatening and racist email, voicemail, and snail mail. (It is worth noting, however, that, during a 1999 deposition, he acknowledged his inability to document any of these alleged “threats.” [See Register, 1/7/00]. What’s that tell you?)
The notion that I was tormenting Christians stemmed from Mathur and Co.’s amazing ignorance. When deposed, Mathur and Sampson acknowledged unfamiliarity with Pat Robertson’s right-wing political organization, named “Christian Coalition.” (Jerry Falwell’s recent remarks that blamed the Sept. 11 attacks on lesbians, et al., were made on Robertson’s TV show.) So, since I have never criticized Christians or Christianity, I can only surmise that the Ignorami Twins had mistaken Dissent’s one or two snide references to Robertson’s political organization for a criticism of Christianity and Christians.
My so-called racist term for Mathur was “Mr. Goo,” which, according to me, was an allusion to the cartoon character Mr. Magoo, but, according to Sampson, was a reference to the racist term “gook.”
Mathur hails from India where Hindi is spoken. It turns out that, in Hindi, “guh” means “excrement,” a fact that, months later, district lawyers gleefully seized upon. It was news to me.
In the lawyers’ view, I guess, if you call a guy “Mr. Shit,” you’re a racist. I don’t get it.
The six elements
“You’re just not couth!”
—Judy Holiday (Born Yesterday)
El Ced’s disciplinary action was based specifically on six newsletter elements, the most celebrated of which appeared in a piece about a 1998 trustee candidates’ debate:
[The debate] started with a reading of a prepared statement by [the absent Nancy] Padberg in which she offered the usual bland campaign promises … Padberg also spoke—er, wrote—of the need to bridge the “gap” between the warring sides in the district. Evidently, she believes that the sides can come together and be pals again—perhaps by means of a carefully planned Halloween party. I don’t think so. I, for one, have etched the name of Sherry “Realpolitik” Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite, which I hope someday to drop on Raghu Mathur’s head. (Dissent, 11/2/98)
Another element was some laughably lurid “crime fiction” artwork, depicting a hatchet murderer and sporting the words: “Crime: Tales of the Back Door Gooster”—i.e., tales of Mathur’s crimes. Another was the acronym MAIM (“Mathur-Milosevic Academic Integrity Matrix”), used by Dissent contributor Red Emma to liken Mathur to the Yugoslavian dictator. Yet another was a still from an old science-fiction movie concerning “downsizers.” This, said Ced, was evidence of my “obsession with weaponry.”
Lawyers, guns, and money
After the meeting, my then-lawyer, Bill S., who had accompanied me, was stunned by El Ced’s stupidity and unreasonableness. Bill wasn’t sure what I should do. He looked at me and asked, “Would you be willing to go to the counselor?” I looked skeptical. He added: “Don’t be buyin’ a Ferrari or anything. Save your money.”
A few weeks later, I got Bill’s bill: $1,500.
* * * * *
So I got help from Carol Sobel, a Santa Monica-based First Amendment attorney. We immediately sued the Chancellor on First Amendment grounds. I alerted the media, initiating yet another PR nightmare for the Board Majority, which now comprised Frogue, Williams, Fortune, Wagner, and Padberg. Probably, the Dark Side expected me just to soften Dissent. As it turns out, a week or so before I received the letter, I had told friends that I was abandoning the newsletter, not out of fear, but out of a sense of the unseemliness of assuming personal risks when my colleagues, judging by their persistent silence and inaction, were, with a few exceptions, unwilling to assume even the slightest risk in combating the Dark Side. I found a towel and threw it in.
But now I was a First Amendment poster boy. The Dissent continued.
Our strategy: to win a “summary judgment.” Essentially, you win a summary judgment when the judge thinks a trial is unnecessary cuz your opponents don’t have a leg to stand on.
Federal court preliminaries
The district’s lawyers—Rutan and Tucker—commenced shoring up the district’s weak legal position. Using declarations solicited from Raghu’s unsavory Old Guard and classified allies, the district concocted a case for my being the district bully, the cause of all recent districtular difficulties, including the Accrediting warning.
The flim-flam flopped. In March of ‘99, Federal Judge Nora Manella, calling the Chancellor’s action against me “Orwellian,” issued a preliminary injunction, declaring the six newsletter items to be “protected speech” and enjoining the district from wielding the two policies to restrict speech and from enforcing the counseling order.
Manella next set to work on her ruling regarding the summary judgment.
“I believe that [the district’s antidiscrimination policy] was used for an improper purpose in this case and that is to stifle dissent.”
—U.S. Judge Gary Feess, 10/25/99
The case was then handed off to Federal Judge Gary Feess (of subsequent DNC and Ramparts fame), who, finally, in October of ‘99, granted the summary judgment in my favor, arguing that my speech was “protected” and that the counseling order was improper. In Feess’ view, both district policies were unconstitutional “as applied,” but the workplace violence policy was also unconstitutional on its face (i.e., it was intrinsically unconstitutional). We had not expected—and, frankly, did not need—the latter “facial” ruling.
In court, Feess ridiculed Ced’s “threat” malarkey. “No reasonable person,” declared Feess, “could have concluded that [Bauer’s] written words … constituted a serious expression of an intent to harm or assault.” He especially derided Ced and Goo’s granite slab worries.
According to Feess, it was “hard to understand what administration was thinking” when they took the action against me. He opined that Mathur’s direction to me (in an evaluation) to “make things nicer” seemed to him to be a possible violation of the First Amendment all by itself. “It’s a college campus.” If you can’t “speak your mind” there, he asked, then where?
Contrary to Larsen’s clients, said Feess, there was no evidence that I was responsible for the district’s problems.
In response, the district’s lawyer, David Larsen, insisted that some faculty (Sherry Miller-White, et al.) feared voicing their opinions, but Feess judged those fears to be “beyond reason.”
“But,” said Larsen, “this is an individual who has been involved in face-to-face threats”! He was referring to the hilarious and hysterical Old Guard declarations from Woody and his pals.
Feess wasn’t buying it. Said he, “That was never a basis which was given in 1998 and that is an after-the-fact attempt to shore up what was a plainly inadequate basis for the discipline.” He added:
I understand that a lot of people would like to do business behind closed doors, that they would like to make decisions that they don’t have to explain, that they would like to come to conclusions and judgments and issue policy without having anyone present to listen and hear and to understand and therefore to make rational, powerful, criticisms of them. That’s just too bad under our system…And if people are afraid of going to meetings and speaking up because … they’re going to be the subject of criticism in a publication, that’s…just life under the First Amendment… I just think this is a case where that concept, a legitimate concept [“workplace violence”], is being stretched for the purpose of taking a vigorous critic of the administration and the board of trustees and trying to keep [him] quiet.
Carol was awarded $127,00.
Next thing I knew, the Board filed an appeal, which meant, among other things, that Carol wouldn’t be getting paid any time soon—and the letters would remain in my file for the time being.
The appellate hearing
A year and a half passed. The appellate hearing—at the 4th Court of Appeals, in Pasadena, with Rymer, Hawkins, and Gould presiding—finally occurred in May of this year. The judges heard oral arguments; they then conferred and produced their opinion.
The hearing was frustrating. Larsen, evidently driven to desperation by the poverty of his case, distorted and invented facts.
The discussion largely focused on the constitutional status of the district’s workplace violence policy in particular, which, again, Feess judged to be unconstitutional, not only “as applied,” but facially. Right away, Judge Rymer objected to the vagueness and oddness of the policy insofar as it referred to “violence overtones.” On the other hand, she could not see, she said, how the policy was unconstitutional on its face: why not just delete the problematic phrase?
Larsen struggled to defend the relevance of the district’s highly convenient after-the-fact declarations. He argued that the six elements needed to be viewed “in context”—namely, my angry and violent conduct, as revealed in Woody and Glenn’s declarations and Larsen’s impromptu courtroom fabrications. I had caused district employees—Sherry—to be “very frightened,” said Larsen.
Carol, always at her best in such settings, noted that, to qualify as truly threatening, an instance of speech must be unequivocal and immediate, threatwise. My speech, she argued, did not come “within a mile” of that standard. Concerning the six elements, the judges seemed to agree. But, asked Rymer, hadn’t I actually gone to individuals and threatened them?
“What are you referring to?” responded Carol. Carol knew that Larsen was distorting and exaggerating what appeared in the briefs and declarations.
Rymer seemed willing to concede that my expressions had been satirical and not violent. But, she asked, how can the whole “workplace violence” policy be unconstitutional on its face? “I just don’t get it,” she said.
Judge Gould spoke; he seemed to have his doubts even about the policy’s unconstitutionality as applied. Maybe the “college” needs its day in court, he said.
Things seemed to be going badly, I thought, but then Judge Hawkins, who had said nothing, ended the hearing by asking Larsen a series of revealing questions:
Were any of these alleged threatening incidents cited in the original disciplinary actions?
No, admitted Larsen, but they were “the backdrop” of the action.
“Really?” asked Hawkins. No references to these incidents were made in the disciplinary letters?
No, admitted Larsen, but, he added, you’ve got to consider “context.”
Hawkins then asked if I had done anything physically to anyone.
Well, no.
Had I brought a weapon to school?
No.
Did I have any history of violence, of shoving, anything like that?
No.
Did I have any history of arrests or confrontations?
Nope.
Victory, part II
The judges issued their judgment in August. Hawkins, representing Rymer and himself (i.e., a majority), wrote the ruling.
Essentially, I prevailed: Judge Feess’ judgments were upheld, with one exception: though the district’s policies are both unconstitutional as applied, in the appellate court’s judgment, the district’s workplace violence policy is facially unconstitutional only in part. Wrote the court:
[Bauer’s] writings and illustrations were prepared during a traumatic time for IVC and the District…The Accrediting Commission attributed the turmoil partially to OC’s financial troubles and primarily to a four-to-three split on the District’s Board of Trustees… [Bauer] voiced his disapproval in a campus newspaper called “Dissent.”….
We agree with [Feess’] analysis that the policies were unconstitutionally applied to Bauer because “though at times adolescent, insulting, crude and uncivil, Bauer’s publication focuses directly on issues of public interest and importance.” We also agree with [Feess] that Bauer’s statements were not “true threats” and that the District’s rights as an employer were not impermissibly burdened by Bauer’s expression….
We agree with [Feess’] holding that although Bauer’s writings have some violent content, they “are hyperbole of the sort found in non-mainstream political invective and in context…are patently not true threats.” (Emphasis in original.)….
Within the larger context of the turbulent IVC campus community, the conduct alleged by Sampson does not transform Bauer’s expression into “true threats.” We agree with [Feess’] that there is simply no way a reasonable reader would have construed [Bauer’s] writings and illustrations to be “true threats,” even if that reader were aware of all of the other conduct alleged by Sampson [my emphasis]….
In light of the Accrediting Commission’s report…, it can hardly be said that Bauer was the source of the disharmony on IVC’s campus. IVC and the District were going through a contentious period—Bauer’s commentary on these troubles may have raised awareness, but the expression certainly did not cause them…[A]nyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams….
[Judge Feess] correctly ruled that [the district’s workplace violence policy] is unconstitutional on its face because it prohibits speech with violent ‘overtones’ that falls short of being threatening. However, the…court erred in holding that the entire workplace violence policy is facially unconstitutional…The…court correctly ruled that the Board’s policies on racial discrimination…and workplace violence are unconstitutional as applied to Bauer.
As things now stand, Carol will be awarded about $200,000 in fees, to be paid by the district. No doubt the district has already spent much more than that for Rutan and Tucker’s services.
The press took some interest in the victory:
The Times, August 16, 2001:
College District Loses Appeal in Discipline Case
A federal appeals court Wednesday upheld a lower court decision that the South Orange County Community College District chancellor acted unconstitutionally when he disciplined a professor for criticizing the administration in satirical newsletters.--FU
“It’s a victory for free speech and for those willing to report honestly about the incompetence and misbehavior of people in positions of power,” said philosophy professor Roy Bauer. “I certainly hope the chancellor and the board learned a lesson, but judging on past behavior . . . they will continue to run the district into the ground.”
But the court ruled that U.S. District Judge Gary Fees went too far in ruling the community college district’s workplace violence policy unconstitutional. Bauer sued after Chancellor Cedric Sampson in December 1998 ordered him to seek anger management counseling and placed a disciplinary letter in his file. Sampson also said Bauer violated the district’s antidiscrimination policy.
Bauer sued, and Fees ruled in his favor in October 1999. He awarded Bauer’s attorney, Carol Sobel, $127,000 in fees and costs. With interest and the fees from the appeal, that figure has grown to around $200,000, Sobel said.
David Larsen, the district’s attorney, said the board of trustees will have to decide whether to appeal the case to the U.S. Supreme Court.
After nearly three years and an uninterrupted string of court victories, to date, Carol has not seen one dime in attorney fees. Further, Ced’s disciplinary letters remain in my personnel file.
So, now, again, we wait. If the Board decides to appeal to the Supreme Court—a request the High Court will almost surely deny—even more taxpayer money will be wasted.
In any case, dissent continues.
Roy Bauer's big day in court, 21 years ago (defending the Dissent).
All dialogue is straight from transcripts of the actual proceeding; no editing (aside from ellipses)
The DISTRICT sought to shut down Bauer/Dissent. As you can see, the district was soundly defeated.
SOCCCD attorney: Mr. Larsen
Roy's attorney: Carol Sobel (Santa Monica)
Judge: Gary Feess
PART TWO:
I’ll start with an excerpt from
MATHUR DISMISSES ANOTHER CHAIR: —But then El Ced comes to the chair’s rescue, and simpers; By Chunk Wheeler [aka Roy Bauer]
[Dissent 51, 9/12/00]
September 1, 2000: it’s 12:45, and I get a cell-phone call from Wendy P [today, she’s Wendy G], who’s been teaching all morning. She tells me that she has just served Raghu Mathur with papers regarding his “Judgment Debtor’s Exam.”
I should explain. You see, back in January of 2000, Mr. Goo filed a suit against Terry Burgess—and me—regarding my reports (in three issues of Dissent) regarding Mathur’s violation of a student’s right to privacy as delineated by a federal law (FERPA). That Mathur had violated that law was, at any rate, the conclusion of the district’s lawyer, Spencer Covert (yes, Covert—I’m not makin’ this stuff up!), who had been asked, by then-IVC president Dan Larios, to provide an opinion on the matter. Ironically, Mathur, a man who can neither detect nor pronounce irony, believes that the Dissent stories amounted to a violation of his privacy rights, and so he sued us for $50,000. According to Mathur, the only way I could have secured the documents I reported on was through the help of Terry Burgess, formerly the VP of Instruction. (That’s nonsense. The documents had been readily available on campus for years.) Thus Burgess was included in the suit.
Unfortunately for the Gooster, the great state of California has a law (the anti-SLAPP statute) designed to protect citizens from lawsuits that are filed by powerful interests—developers, politicians, et al.—merely in order to silence legitimate criticism. SLAPP suits are burdensome annoyances, or worse, for defendants, but they produce a chilling effect on potential criticism by others as well. They thwart free speech.
To make a long story short, we responded to Mathur’s suit by appealing to the anti-SLAPP statute, which yielded a quick dismissal. In court, Judge Brenner noted that my Dissent reports were both true and newsworthy and that, further, there was no evidence whatsoever that Burgess provided the information regarding Mathur that I had reported. In fact, he hadn’t.
As per the law, Brenner ordered Mathur to pay Burgess and me costs and attorneys fees. That amounted to $34,000 and change. Ouch! That occurred months ago.
But, as of this day (Sept. 1), Mathur hasn’t paid. In such situations, the prevailing side files for a “Judgment Debtor Exam.” Once it is granted, the “judgment debtor” is served papers that inform him that he must appear in court on a certain date. “If you fail to appear…you may be subject to arrest and punishment,” say the documents.
On August 29th, Carol Sobel, my attorney, filed for a debtor’s exam for Mathur. The order was granted on that day. So, on this day—the 1st of September—Wendy serves Raghu with the papers:
“Hi Raghu. I’ve got something for you!” chirps Wendy.
He stares but doesn’t move. She hands him the papers, smiling broadly. Eventually, he takes them, glumly thanks her, and then disappears behind the door of his office.
Later, someone tells me that she thinks she heard Mathur crying and banging his head against a chair. But she isn’t sure.
Could be, though. The document orders Mathur to bring 27 kinds of document, including
All checkbooks, registers, and canceled checks for all savings, checking, credit union, bank, mutual fund accounts and/or all other accounts owned by you and/or you and your spouse for the past three years…All payroll check stubs for you and/or your spouse for the past three years…All passbooks for savings, checking, credit union, bank, mutual fund accounts, and/or all other accounts owned by you and/or your spouse for the past three years…All financial statements listing your assets…during the past three years…All stock registers or other records of stocks presently owned by you…All documents evidencing any partnership interest in property owned by you…All credit card applications…Ownership documents…Your state and federal income tax returns for the past thee years…
—and so on. Jeez, I’d cry too. The exam is set for September 19th….
--7-19-00
In the end, Mathur was forced to fork over about $32K (that’s what we settled for).
Mathur turned around and sued the district for not protecting him from me—despite the fact that I sued him only in response to his suing me for reporting a demonstrable fact about his misconduct.
At first, the district simply rejected Mathur’s suit. In the end, however, the trustees gave ‘im about $40K (as I recall) and soon made him Chancellor the district.
Really.
Below are some Dissent stories about our adventures in court in connection with Mathur’s unfortunate suit:
SUIN’ SAFARI!
by Chunk Wheeler [aka Roy Bauer]
[Dissent 46, 3/6/00]
February 29: After lunch, Carol, a friend of hers, Wendy, and I headed for Judge Michael Brenner’s courtroom in Santa Ana. Our hearing was set for 1:30.
We entered the building at about 1:20 and found our way to the elevators, where dozens of besuited lawyers stood around like hamsters, nervously eyeing the elevator doors while intermittently consulting wrist-watches. Even Carol seemed worried. Someone murmured: “Type A personalities.” I said: “Hey, don’t worry, baby! It’s 1:23, and we’ve got all the time in the world!”
Three minutes later, we were anxiously climbing the stairs to the third floor. We reached Brenner’s court just before 1:30, but its doors were locked, which meant the earlier session had not finished. A docket crudely posted outside the courtroom listed “Mathur vs. Bauer” dead last out of 24 cases. “What the hell does that mean?” I asked. “It means we’re last,” someone said.
My friend Jan, a lawyer, joined us. “They often put the most interesting cases last,” he said. “So we’re interesting, are we?”, said I. I wasn’t sure I wanted us to be interesting.
The door swung open at 1:40, and we filed in along with all the suits. Mathur was nowhere to be seen. We tried to guess which guy was Corfield, Mathur’s lawyer. Wendy had encountered him—or someone who might have been him—a few days before in Laguna Beach. She described him to me as “kinda a surf bum.” I scoured the room for such a person. I spotted one—way off to the left. He seemed to be lookin’ for the perfect wave. Sand fell from his pockets.
We watched the bailiff, who didn’t seem to have anything to do but swagger. I mentioned that, for many years, trustee John “Brown Boy” Williams was a bailiff. We watched this one as he slowly transferred a piece of paper from one end of the courtroom to another.
At 1:55, for some reason, the courtroom became eerily silent, and everyone stared in anticipation. But Brenner still didn’t show. At 2:00, a man in a judge costume started hangin’ around by the back door chewin’, but he was just teasin’ us, I guess, ‘cuz nothin’ happened.
Brenner emerged at 2:15, and he sure did look like a judge. The first case was Martinez v. Somethin’-or-other. Brenner told the lawyers he wasn’t up to speed, and so let’s do this another day. “My fault,” he said. In the next case, someone didn’t file something, and that wasn’t so good, apparently. Then, in the next case, a lawyer neglected to file the “opposition,” and so Brenner granted the summary judgment. Bang!
A case concerning “Commercial Wastepaper” was up next. Brenner spoke of a “grudge match” that had been going on for a long time. While that went on, I looked over at Corfield, who happily played Beach Blanket Bingo on his legal pad.
The judge said some critical things about the opposing parties. Wendy whispered something about “Judge Wapner” into my left ear. Meanwhile, Brenner evidently had to impose a $1000 fine on somebody, but he wasn’t sure quite how he oughta do that, and so, after a few moments of Solomonic reflection, he said, “I’ll tell you what; let’s split the difference. Five hundred dollars each.”
Wow. I hoped he wasn’t gonna pull this splittin’ maneuver in my case.
A suit involving “American Funds Service” was next. Someone wanted attorneys’ fees, but Brenner turned ‘em down flat.
By 2:45, the court had moved on to something amusingly referred to as “Green Burrito litigation.” Corfield had had enough; he went outside to wax his surfboard.
We passed notes around. In her note, Carol opined that Brenner “certainly is very cordial,” and that he has a sense of humor, unlike some o’ those surly and pompous judges she’s used to in Federal Court. Just then, Brenner looked at a one of the lawyers and said, “It’s a pleasure to see you”—which, I figure, was just his juristical way of sayin’: “How’s it goin’, asshole?”
By 3:00, the court had moved on to Klein v. Somebody, and a lawyer or the judge said that the case was just a “rehash.” This talk of rehashing led to more loose talk, and soon, a lawyer misspoke, asserting something about “heat.” “I’ve seen lawyers in heat,” quipped Brenner.
A short, attractive, blond dynamo got up to argue for her client in McCornan v. Pine Creek. Evidently, a landlord refused to rent to a guy because he was an African American. Wow. As the judge and the lawyers spoke, they referred to “sexual orientation,” “homosexual animus,” “outrageous conduct,” and whatnot. We all stared intently: it was just like an episode of LA Law.
At 3:30, Brian Wilson left the room again. Brenner expressed skepticism about something Surfer Girl said….
At 3:35, Brenner called for a ten minute recess, apparently to give the court reporter’s digits a rest. We went outside and jawed. I noticed that the case that had just been heard immediately preceded “Mathur v. Bauer” on the docket!
At 3:53, we were back inside, and, sure enough, “Mathur” was next. Here are my notes, which are pretty spotty:
BRENNER: Brenner notes that the case is a motion to strike. [That is, it’s a motion to dismiss the suit.] He asks attorney Sobel what she has to offer.
SOBEL: Carol refers to the purpose of the anti-SLAPP statute…she says something about “encouraging” resolution at the earliest possible stage. [The statute is designed to protect people against “Strategic Litigation Against Public Participation.” In other words, it’s designed to combat the chilling effect of lawsuits against people who speak out on matters of “public significance.”] The defendant’s burden, she says, is “miniscule.”
She says the sole cause of Mathur’s action is “invasion of privacy.” If any of the 4 key elements (which she lists) of such a case fails, the case must be dismissed. It is clear, she says, that Mathur is a public official. (Relative to…?) Mathur needs to make a case that the facts are false—or that’s it.
The articles and documentation in the newsletter concerned Mathur’s conduct as a public official, and the conduct of such people is always a matter of public concern. Hence, Mathur can’t prevail in this case. Keep in mind: he [Mathur] doesn’t contest the facts reported in the newsletters, and they’re enough to “puke a dog off a gut wagon!” [Well, I made up the part about the “gut wagon.”]
Invasion of privacy involves the public disclosure of private facts (and that’s not involved here). Mathur is a public official…
In these cases, the burden shifts to the plaintiff, who needs to provide “competent evidence” that he will [likely] prevail (in a trial). Mathur has not met that burden. His papers are devoid of (evidence of the requisite sort).
[Corfield projects cockiness during Carol’s remarks. Now, someone whispers, “Surf’s up!”]
CORFIELD: There’s an important distinction. The defendant’s counsel refers to defamation(?), but our complaint concerns, not defamation, but invasion of privacy. Mathur is suing because the defendant (and Mr. B) stole documents from a file…Bauer and Mr. B stole a letter that is privileged; they stole and published something that is confidential. The issue of truth or falsity—to which defendant’s counsel refers—is a “red herring.”
Corfield says that Bauer’s attorney hasn’t succeeded (in showing the applicability of the anti-SLAPP statute?).
Bauer, repeats Corfield, has stolen Mathur’s records.
Defendant’s counsel today tells us, says C, that Mathur must prove his case. Corfield refers to “Briggs.” …So I don’t have to prove my case; rather, I am obliged only to STATE A CASE.
The defendant’s moving papers, says C, are largely (1st Amendment?) boilerplate; (hence) they offer “obtuse” [sic; he means “abstruse”] language.
Bauer’s counsel is [comparing?] apples and oranges. We need to look at Schulmann (a Supreme Court case?).
BRENNER: “They” [the defendants] stole documents, you say. But there’s no evidence of that (in your papers). You don’t show how this defendant got these papers.
[NOTE: They’re referring to a letter of reprimand (of Mathur), which I had reproduced in Dissent (in January of 1999), that, evidently, is part of Mathur’s personnel file. But, of course, that I had possession of a copy of that document does not suggest that I, or anyone else, stole it from Mathur’s file.]
CORFIELD: (Says something; not much; I took no notes. Corfield describes Mathur as the “president of a university.”)
BRENNER: This defendant [Bauer] got the papers (the letter of reprimand) somehow…How Mathur performed his job in the past is newsworthy.
(Corfield argues that the events to which the “papers” are related occurred very long ago. In his filings, he refers to them as “ancient”--and thus unnewsworthy. Brenner seems to reject that adjective--“ancient”-- as applied here.)
SOBEL: Can I respond? [Sobel begins to discuss Schulmann…]
[At this point, Wendy briefly borrows my pen and tablet, and so my notes have a 2 minute gap.]
BRENNER: (He reads aloud from Schulmann.)
SOBEL: Carol directs Brenner to a section of Schulmann. The lawyers argue about the “standard” that must be met by the person who brings the suit. The judge favors Carol’s interpretation.
She refers to a “misdirected fax” (from Mr. B to the chancellor), which is cited by Mathur as evidence of my alleged “theft.” [The fax was a copy of a letter in which the district’s attorney, Spencer Covert, opines that Mathur had indeed violated federal law by distributing a student’s transcripts. In fact, Covert’s letter had been widely distributed on campus not long after it was sent by Covert to IVC.] The fax, she says, was sent to the chancellor two days after the publication of the first Dissent at issue in this case. There is no evidence that the fax even got to the defendant (Bauer). The faxed Covert letter never appeared in the newsletter. So where’s the evidence of theft?
BRENNER: Brenner opines that the Dissent stories are newsworthy. Further, there’s “no showing” that the reports were untruthful “that I can see.” There “is no showing” that, in the case of this defendant, the papers were unlawfully obtained. The evidence doesn’t seem to be here.
CORFIELD: Look at Schulmann. It isn’t about theft (?).
BRENNER: You keep saying (that the defendant engaged in theft). But there’s no evidence.
CORFIELD: We don’t have to prove that there was theft. He refers to 425.16 [California’s anti-SLAPP statute] and the Supreme Court.
BRENNER: …Brenner asks (I think) whether there is evidence that the defendants (Bauer and Mr. B) conspired…
Brenner says: I’ve denied these motions before, but the defendant [Bauer] is exercising his 1st Amendment rights. He is reporting on a matter of public interest.
Finally, Brenner says: I don’t think there’s any evidence…I will grant the motion [to dismiss Mathur’s suit].
CORFIELD: [Corfield looks as though someone has stolen his Woody.] C sputters something about a “leave to amend.”(?)
[Apparently, this “leave to amend” business is a desperate move on C’s part; Brenner responds as though Corfield has committed a faux pas. He indicates that he has made his ruling and that’s that.]
* * * * *
Well, we left the courtroom, and we were pretty damned pleased. Jan, who was very impressed by Carol’s performance, stepped back from her and intoned: “I’m not worthy.” Others squealed or laughed. We wandered down to the hall to the elevators, talking and joking.
As we waited for the elevator to arrive, Mr. Corfield snuck up behind us and then rudely interrupted, asking Carol about Mr. B’s attorney, with whom he wanted to arrange a conference. Wendy turned to him and said that Corfield was looking for her. As he commenced speaking, Surfer Joe poked Wendy hard in the shoulder, like she was Annette Funicello or somethin’. She kicked sand in his face. (Well, not really. She was very professional.)
Next: attorneys’ fees. Fun fun fun! —CW
March 2, 2000,
IRVINE WORLD NEWS
College president’s suit against professor dismissed
By Laura Hayes
On Tuesday, an Orange County Superior Court judge granted professor Roy Bauer a special motion to strike an invasion of privacy lawsuit filed against him in January by Raghu Mathur, president of Irvine Valley College.
“The motion was based on legislation to protect people like me when they are speaking the truth about a public official,” said Bauer.
The lawsuit charged that Bauer had published in his newsletter “Dissent” in January 1999 a confidential memorandum that Mathur claims was stolen from his personnel file. The 1996 memo centered on administrative concern with Mathur’s handling of a student’s transcript.
Carol Sobel, Bauer’s attorney, said the statute employed by the court is aimed at stopping at an early stage a lawsuit aimed at preventing citizens from participating in the legislative process.
“If the basis in the lawsuit is related to free speech and concerns a matter of public concern, then the lawsuit should be stopped at the earliest possible moment,” said Sobel.
Judge Michael Brenner ruled that how Mathur performs his duties as college president is a matter of public concern and he didn’t see anything in the published statements that appeared untrue, said Sobel.
After hearing from both sides, the motion was granted when the judge determined there was not enough evidence that Mathur would prevail in the invasion of privacy claim.
“You’ve got to show that you’re likely to win,” said Bauer.
Michael Corfield, Mathur’s attorney, said the judge only considered the defamation of character issue and failed to focus enough attention on the invasion of privacy issue. He said he will talk to Mathur about the possibility of an appeal.
MATHUR IN A LATHER: A SLAPP-SUIT COMEDY
By Big Bill B [aka Roy Bauer]
[Dissent 47, 3/20/00]
Background: on the 29th of February, Judge Michael Brenner of OC Superior Court granted a motion to dismiss Raghu Mathur’s lawsuit against me. Mathur had accused me of invading his privacy by reporting (in the January 11 & 19, 1999, issues of Dissent) his violations of a federal law that, ironically, protects the privacy of students. Brenner had ruled that the reports were “newsworthy” and that I should be afforded the protection of the 1st Amendment and California’s anti-SLAPP statute. Two weeks later, on the 14th of March, Judge McEachen, sitting in for Brenner, issued a ruling on Terry Burgess’ motion to dismiss (Burgess had also been named in the suit). Terry had been accused of conspiring with me to break into Mathur’s personnel file, thereby securing a copy of Larios’ reprimand of Mathur plus a legal opinion from the district’s attorney, Spencer Covert. According to Covert’s opinion, Mathur had indeed violated the federal law and district policy by distributing a student’s transcripts (in a failed attempt to discredit an administrator).
The misdirected philosopher:
MARCH 14: Addled by hypoglycemia and still hobbling from a nasty fall in the shower, I entered the big downtown court building, and, as usual, I didn’t get past the metal detector. At least they didn’t make me take off my shoes and belt, as they once did in the federal court building in LA!
Eventually, they let me in, and I headed upstairs to the 3rd floor, but I couldn’t find the courtroom anywhere. I consulted a directory: Brenner was on the 5th floor, not the 3rd! I headed up, arriving fifteen minutes late, at about 1:45. Entering courtroom 112, I beheld a stranger on the bench: a Judge David T. McEachen. Evidently, McEachen had taken over for Brenner for the day.
As I sat down next to Wendy, a pissed off lawyer was addressing the court about a company named “Paradigm.” “Paradigm took this money!” said someone, according to the lawyer. When the lawyer ceased yammering, Judge McEachen turned to the other guy, smiled benevolently, and said: “It’s your turn.”
Meanwhile, Wendy wrote me a note that said that we’re number 15, and McEachen’s now on number 9, and it shouldn’t take him long to get to us, ‘cuz most people didn’t file their 378s. —Lawyers talk that way.
The pissed off lawyer—a Mr. Burger—was fumin’ again, referring to another judge as “Black Jack Ryan,” which evoked laughter among the lawyers and bemusement or irritation from McEachen. The other guy responded with: “Mr. Burger will strike me if I’m wrong,” but he was wrong (I think), and Burger didn’t lay a finger on ‘im.
The next case concerned “Mass Mutual.” “You got the tentative,” said McEachen to the attorneys.
The tentative ruling:
Maybe they got it, maybe they didn’t. Wendy wrote me a note, saying that there was a tentative ruling in our case, too , but she was unable to secure the damned thing. The day before, we learned of its existence but were told that “Brenner doesn’t issue tentatives.” It turns out that Corfield and his partner—Mr. Rovell—were in the same boat as us, the HMS Clueless.
“Mass Mutual is taking it out of her hide,” said one lawyer, over on the right. The left lawyer, an Aussie in an ill-fitting suit, looked from my perspective (directly behind him) like he was standing at a urinal. The first guy—in his early 60s and dressed for a trip to Palm Springs—said he was “emotional” about the case. “I probably screwed up,” he confessed. They discussed the concept of “surprise.” “Surprise is not enough,” said someone.
I had no idea what they were talking about.
Suddenly lapsing into abominable incorrectness, someone spoke of the “lady lawyer up in Idaho,” but no one seemed to care. The Palm Springs guy seemed upset about the tentative judgment, which, he said, “is unjust in the extreme.” Then the Aussie stopped urinating, zipped up, and referred to the “shenanigans” of the Palm Springer, who, in response, pivoted slowly on his tasseled golf shoes with affected indignation. I looked over at the bailiff, who affected wariness, and then over at the court reporter, who affected consciousness. Blah blah blah, said the judge. My eyes glazed over. I lapsed into unconsciousness.
Love never had a chance:
Right about then, Wendy shoved at me and ordered me to get the hell out of the way. Apparently, it was showtime! I gave her and Diana G, the other attorney, a wide berth as they filed past me and then through the little gate—into the “inner sanctum,” as Wendy calls it. This time, Brian Wilson (Corfield) was benched, replaced by his partner Mike Love (Mr. Rovell).
Love never had a chance.
McEachen, wasting no time, referred to the tentative ruling—the one we had not yet seen—as we studied his face for clues. He announced that our motion to strike—i.e., our motion to have Mathur’s suit dismissed—had been granted, at least in the tentative ruling, by Brenner. (Whoopee!) According to Brenner/McEachen, the plaintiff—that’s Mathur—had not met “his burden” of showing that he would probably prevail in court. (According to the anti-SLAPP statute, the plaintiff must show that he will likely win, or the suit is thrown out right at the start, and the defendant gets attorneys’ fees.) He had accused Terry and me of stealing “private” documents (a reprimand and a legal opinion) from Mathur’s personnel file, but, said the judge, there was no indication of where the documents in question had actually come from. (They sure as hell didn’t come from Mathur’s personnel file!)
Last month, in her response (on my behalf) to Mathur’s complaint, Carol Sobel (my attorney) had argued that the Dissent articles about Mathur and the student’s transcripts were “newsworthy.” According to the new tentative, the plaintiff again hadn’t “controverted” that claim. Neither had he controverted the claim that Mathur is a “public official.” (I think Brenner even noted that, in the case of one document—the legal opinion by Spencer Covert—there is no evidence that I even received it. Maybe that was because, though the Dissent had referred to Covert’s opinion, it had never actually quoted from it.)
The upshot: Slam dunkage.
The judge closed with an analysis: “same facts, same result.” He was saying, I think, that Mathur’s opposition (his filed response to Terry’s motion to strike) simply repeated the failings of Mathur’s earlier opposition to my motion to strike. Ouch.
The Rovel grovel: a malarkey switcheroo
Back on the 29th, Carol had argued that the anti-SLAPP statute, which is designed to counter the chilling effect of lawsuits against those who speak out against the powerful, applies in this case, and we had prevailed on that basis. The two issues of Dissent in question (January 11 and 19, 1999) reported that Mathur violated a federal law—FERPA—plus district policy. (Such, again, was the opinion of the district’s own attorney, Spencer Covert.) Essentially, Mathur’s lawsuit complaint was that I had violated his privacy by revealing this fact, which, he argued, was of no public interest.
When in doubt, reverse gears! Now Mathur’s lawyers argued, not that I had revealed a fact, but that the fact was no fact. That is, though Mathur had indeed disseminated a student’s transcripts, that didn’t mean he violated FERPA (and district policy). I think the idea was that, since Mathur’s dissemination occurred “internal” to the college, it was not an illegal dissemination. In effect, Rovell and Co. were abandoning their original “privacy” malarkey in favor of “defamation” malarkey.
Rovell yammered a bit about the anti-SLAPP statute and then focussed on the notorious January 13 (1999) “misdirected fax.” That was Burgess’ fax of the Covert opinion, which had been sent, accidentally, to the District! Evidently, on the 21st of January, Chancellor Sampson wrote Burgess concerning that fax, and Burgess responded with a letter dated January 29. Rovell now argued that, in the January 29 letter, in a key line, Burgess made an admission that shows that his more recent “declaration” (a sworn statement submitted to the court) is perjurious! (At that moment, Wendy, showing admirable self-control, refrained from socking Rovell in the jaw. I was impressed.)
Rovell also referred to a declaration, in which an instructor describes the widespread availability of the Covert opinion by 1996 and its location in the academic senate’s files as part of the public record. Rovell rejected the entire declaration, arguing that its author’s opinion that these academic senate files are public is “entirely conclusory,” i.e., not supported by the facts.
The Dissent reports were “offensive,” said Rovell, who began to shine with nervousness. He seemed to say that the Covert opinion was a matter of attorney/client confidentiality. (Rovell failed to notice that the opinion was not written for Mathur, but for the district, which had requested a legal opinion regarding the fellow’s actions.) Clearly, said Rovell, the reporting of the Covert letter (and Larios’ reprimand of Mathur) would be “offensive and objectionable to any reasonable person.”
“Lastly,” said Rovell, we must address the matter of “newsworthiness,” regarding which there are “six elements.” One is the “social value” of the facts. Covert’s opinion notwithstanding, Mathur never violated federal law, said Rovell. “How can a false fact have a social value?” An instructor’s personnel file, he said, is “inviolate.” We’re talking about attorney/client documents, he said, inexplicably.
At this point, the court reporter stopped Rovell, asking him to slow down. “Go ahead—slower,” said McEachen. Rovell, glistening with sweat, slowed down, but he kept shinin’.
Newsworthiness: that’s the key
It was Diana’s turn. “Newsworthiness,” she said, isn’t the “last issue,” as Rovell suggested; it’s the “first.” Brenner had decided two weeks ago that the Dissent reports were “newsworthy,” that they had reported matters of “public concern.” How a public official performs his job—Mathur had been the Chair of the School of Physical Sciences at the time of his misconduct—is newsworthy.
Diana referred to Burgess’ January 29 letter. If one reads Burgess’ comment in context, she said, it is clear that he does not acknowledge having ultimately sent the fax to Bauer. (In fact, I never received this document from Burgess.)
Actually, it makes no difference, said Diana, who provided Bauer with the Covert letter, because the report of Mathur’s violations of FERPA were newsworthy, and that’s the key. Still, there’s no evidence that Burgess was the source.
Diana referred to testimony that Covert’s legal opinion was “in circulation” around campus already in 1996. She referred to a declaration by an individual who had sent a letter to trustees in September of 1997; the letter included a copy of the Covert opinion. Clearly, Bauer could have received the Covert letter from many others besides Burgess.
Diana noted that the plaintiff’s attorney is ignoring the three cases she cited in her motion, which delineate which publications constitute a violation of privacy. A misdirected fax, she says, doesn’t cut it.
Diana reminded the court that it had already ruled that the facts reported in the two issues of Dissent were “newsworthy,” and so the plaintiff doesn’t have a leg to stand on. There is absolutely no evidence, she added, that Burgess (or Burgess and Bauer) “stole” documents from Mathur’s personnel file.
The bottom line: the president of IVC, when the head of an academic department, violated district policy and federal law, said Diana. That is a matter of public concern, and that’s what Dissent reported. Further, “plaintiff has not and cannot dispute that Mathur is a public official.” Therefore, he cannot show, as he must, that he will probably prevail in this suit.
Yogi Berra:
McEachen then gave Rovell an opportunity to provide a brief response. Brenner’s opinion of the 29th was “very unfortunate,” said Rovell. There’s an “abundance” of new facts that show, he added, that Mathur never violated the law. Diana’s point about Burgess’ January 29 letter relied on a “play on words,” said Rovell. Facts “can be true or false.” The facts reported in Dissent are false. Mathur does not deny that, internally, he sent around these transcripts, but that’s not illegal. Blah blah blah.
Finally, the judge spoke. He said that he had read Brenner’s notes. And then: “I’m granting the motion. To quote the esteemed Yogi Berra, it’s ‘déjà vu all over again.’” BOOM!
Out in the hallway, we yucked it up pretty good. When Corfield and Rovell approached us with outstretched hands, we shook ‘em. “If Brenner were here, he would have denied the motion,” said surfer dude Corfield. He was kidding, I guess.
Diana, still hangin’ ten, called Carol with her cell phone. “Hey Carol, we’re done. We won,” she said. Wendy turned to me: “Yeah, they got thumped.”
We walked with Diana downstairs. Out front, her ride drove up. She said: “Next, fees.”
Yeah. —BBB [Roy Bauer]
MATHUR DISMISSES ANOTHER CHAIR: —But then El Ced comes to the chair’s rescue, and simpers; By Chunk Wheeler [aka Roy Bauer][Dissent 51, 9/12/00]
September 1, 2000: it’s 12:45, and I get a cell-phone call from Wendy P [today, she’s Wendy G], who’s been teaching all morning. She tells me that she has just served Raghu Mathur with papers regarding his “Judgment Debtor’s Exam.”
I should explain. You see, back in January of 2000, Mr. Goo filed a suit against Terry Burgess—and me—regarding my reports (in three issues of Dissent) regarding Mathur’s violation of a student’s right to privacy as delineated by a federal law (FERPA). That Mathur had violated that law was, at any rate, the conclusion of the district’s lawyer, Spencer Covert (yes, Covert—I’m not makin’ this stuff up!), who had been asked, by then-IVC president Dan Larios, to provide an opinion on the matter. Ironically, Mathur, a man who can neither detect nor pronounce irony, believes that the Dissent stories amounted to a violation of his privacy rights, and so he sued us for $50,000. According to Mathur, the only way I could have secured the documents I reported on was through the help of Terry Burgess, formerly the VP of Instruction. (That’s nonsense. The documents had been readily available on campus for years.) Thus Burgess was included in the suit.
Unfortunately for the Gooster, the great state of California has a law (the anti-SLAPP statute) designed to protect citizens from lawsuits that are filed by powerful interests—developers, politicians, et al.—merely in order to silence legitimate criticism. SLAPP suits are burdensome annoyances, or worse, for defendants, but they produce a chilling effect on potential criticism by others as well. They thwart free speech.
To make a long story short, we responded to Mathur’s suit by appealing to the anti-SLAPP statute, which yielded a quick dismissal. In court, Judge Brenner noted that my Dissent reports were both true and newsworthy and that, further, there was no evidence whatsoever that Burgess provided the information regarding Mathur that I had reported. In fact, he hadn’t.
As per the law, Brenner ordered Mathur to pay Burgess and me costs and attorneys fees. That amounted to $34,000 and change. Ouch! That occurred months ago.
But, as of this day (Sept. 1), Mathur hasn’t paid. In such situations, the prevailing side files for a “Judgment Debtor Exam.” Once it is granted, the “judgment debtor” is served papers that inform him that he must appear in court on a certain date. “If you fail to appear…you may be subject to arrest and punishment,” say the documents.
On August 29th, Carol Sobel, my attorney, filed for a debtor’s exam for Mathur. The order was granted on that day. So, on this day—the 1st of September—Wendy serves Raghu with the papers:
He stares but doesn’t move. She hands him the papers, smiling broadly. Eventually, he takes them, glumly thanks her, and then disappears behind the door of his office.
Later, someone tells me that she thinks she heard Mathur crying and banging his head against a chair. But she isn’t sure.
Could be, though. The document orders Mathur to bring 27 kinds of document, including
All checkbooks, registers, and canceled checks for all savings, checking, credit union, bank, mutual fund accounts and/or all other accounts owned by you and/or you and your spouse for the past three years…All payroll check stubs for you and/or your spouse for the past three years…All passbooks for savings, checking, credit union, bank, mutual fund accounts, and/or all other accounts owned by you and/or your spouse for the past three years…All financial statements listing your assets…during the past three years…All stock registers or other records of stocks presently owned by you…All documents evidencing any partnership interest in property owned by you…All credit card applications…Ownership documents…Your state and federal income tax returns for the past thee years…
—and so on. Jeez, I’d cry too. The exam is set for September 19th….
--7-19-00
In the end, Mathur was forced to fork over about $32K (that’s what we settled for).
Mathur turned around and sued the district for not protecting him from me—despite the fact that I sued him only in response to his suing me for reporting a demonstrable fact about his misconduct.
At first, the district simply rejected Mathur’s suit. In the end, however, the trustees gave ‘im about $40K (as I recall) and soon made him Chancellor the district.
Really.
Below are some Dissent stories about our adventures in court in connection with Mathur’s unfortunate suit:
SUIN’ SAFARI!
by Chunk Wheeler [aka Roy Bauer]
[Dissent 46, 3/6/00]
February 29: After lunch, Carol, a friend of hers, Wendy, and I headed for Judge Michael Brenner’s courtroom in Santa Ana. Our hearing was set for 1:30.
We entered the building at about 1:20 and found our way to the elevators, where dozens of besuited lawyers stood around like hamsters, nervously eyeing the elevator doors while intermittently consulting wrist-watches. Even Carol seemed worried. Someone murmured: “Type A personalities.” I said: “Hey, don’t worry, baby! It’s 1:23, and we’ve got all the time in the world!”
My friend Jan, a lawyer, joined us. “They often put the most interesting cases last,” he said. “So we’re interesting, are we?”, said I. I wasn’t sure I wanted us to be interesting.
The door swung open at 1:40, and we filed in along with all the suits. Mathur was nowhere to be seen. We tried to guess which guy was Corfield, Mathur’s lawyer. Wendy had encountered him—or someone who might have been him—a few days before in Laguna Beach. She described him to me as “kinda a surf bum.” I scoured the room for such a person. I spotted one—way off to the left. He seemed to be lookin’ for the perfect wave. Sand fell from his pockets.
We watched the bailiff, who didn’t seem to have anything to do but swagger. I mentioned that, for many years, trustee John “Brown Boy” Williams was a bailiff. We watched this one as he slowly transferred a piece of paper from one end of the courtroom to another.
At 1:55, for some reason, the courtroom became eerily silent, and everyone stared in anticipation. But Brenner still didn’t show. At 2:00, a man in a judge costume started hangin’ around by the back door chewin’, but he was just teasin’ us, I guess, ‘cuz nothin’ happened.
Brenner emerged at 2:15, and he sure did look like a judge. The first case was Martinez v. Somethin’-or-other. Brenner told the lawyers he wasn’t up to speed, and so let’s do this another day. “My fault,” he said. In the next case, someone didn’t file something, and that wasn’t so good, apparently. Then, in the next case, a lawyer neglected to file the “opposition,” and so Brenner granted the summary judgment. Bang!
A case concerning “Commercial Wastepaper” was up next. Brenner spoke of a “grudge match” that had been going on for a long time. While that went on, I looked over at Corfield, who happily played Beach Blanket Bingo on his legal pad.
The judge said some critical things about the opposing parties. Wendy whispered something about “Judge Wapner” into my left ear. Meanwhile, Brenner evidently had to impose a $1000 fine on somebody, but he wasn’t sure quite how he oughta do that, and so, after a few moments of Solomonic reflection, he said, “I’ll tell you what; let’s split the difference. Five hundred dollars each.”
Wow. I hoped he wasn’t gonna pull this splittin’ maneuver in my case.
A suit involving “American Funds Service” was next. Someone wanted attorneys’ fees, but Brenner turned ‘em down flat.
By 2:45, the court had moved on to something amusingly referred to as “Green Burrito litigation.” Corfield had had enough; he went outside to wax his surfboard.
We passed notes around. In her note, Carol opined that Brenner “certainly is very cordial,” and that he has a sense of humor, unlike some o’ those surly and pompous judges she’s used to in Federal Court. Just then, Brenner looked at a one of the lawyers and said, “It’s a pleasure to see you”—which, I figure, was just his juristical way of sayin’: “How’s it goin’, asshole?”
By 3:00, the court had moved on to Klein v. Somebody, and a lawyer or the judge said that the case was just a “rehash.” This talk of rehashing led to more loose talk, and soon, a lawyer misspoke, asserting something about “heat.” “I’ve seen lawyers in heat,” quipped Brenner.
A short, attractive, blond dynamo got up to argue for her client in McCornan v. Pine Creek. Evidently, a landlord refused to rent to a guy because he was an African American. Wow. As the judge and the lawyers spoke, they referred to “sexual orientation,” “homosexual animus,” “outrageous conduct,” and whatnot. We all stared intently: it was just like an episode of LA Law.
At 3:30, Brian Wilson left the room again. Brenner expressed skepticism about something Surfer Girl said….
At 3:35, Brenner called for a ten minute recess, apparently to give the court reporter’s digits a rest. We went outside and jawed. I noticed that the case that had just been heard immediately preceded “Mathur v. Bauer” on the docket!
At 3:53, we were back inside, and, sure enough, “Mathur” was next. Here are my notes, which are pretty spotty:
BRENNER: Brenner notes that the case is a motion to strike. [That is, it’s a motion to dismiss the suit.] He asks attorney Sobel what she has to offer.
SOBEL: Carol refers to the purpose of the anti-SLAPP statute…she says something about “encouraging” resolution at the earliest possible stage. [The statute is designed to protect people against “Strategic Litigation Against Public Participation.” In other words, it’s designed to combat the chilling effect of lawsuits against people who speak out on matters of “public significance.”] The defendant’s burden, she says, is “miniscule.”
She says the sole cause of Mathur’s action is “invasion of privacy.” If any of the 4 key elements (which she lists) of such a case fails, the case must be dismissed. It is clear, she says, that Mathur is a public official. (Relative to…?) Mathur needs to make a case that the facts are false—or that’s it.
The articles and documentation in the newsletter concerned Mathur’s conduct as a public official, and the conduct of such people is always a matter of public concern. Hence, Mathur can’t prevail in this case. Keep in mind: he [Mathur] doesn’t contest the facts reported in the newsletters, and they’re enough to “puke a dog off a gut wagon!” [Well, I made up the part about the “gut wagon.”]
Invasion of privacy involves the public disclosure of private facts (and that’s not involved here). Mathur is a public official…
In these cases, the burden shifts to the plaintiff, who needs to provide “competent evidence” that he will [likely] prevail (in a trial). Mathur has not met that burden. His papers are devoid of (evidence of the requisite sort).
[Corfield projects cockiness during Carol’s remarks. Now, someone whispers, “Surf’s up!”]
CORFIELD: There’s an important distinction. The defendant’s counsel refers to defamation(?), but our complaint concerns, not defamation, but invasion of privacy. Mathur is suing because the defendant (and Mr. B) stole documents from a file…Bauer and Mr. B stole a letter that is privileged; they stole and published something that is confidential. The issue of truth or falsity—to which defendant’s counsel refers—is a “red herring.”
Corfield says that Bauer’s attorney hasn’t succeeded (in showing the applicability of the anti-SLAPP statute?).
Bauer, repeats Corfield, has stolen Mathur’s records.
Defendant’s counsel today tells us, says C, that Mathur must prove his case. Corfield refers to “Briggs.” …So I don’t have to prove my case; rather, I am obliged only to STATE A CASE.
The defendant’s moving papers, says C, are largely (1st Amendment?) boilerplate; (hence) they offer “obtuse” [sic; he means “abstruse”] language.
Bauer’s counsel is [comparing?] apples and oranges. We need to look at Schulmann (a Supreme Court case?).
BRENNER: “They” [the defendants] stole documents, you say. But there’s no evidence of that (in your papers). You don’t show how this defendant got these papers.
[NOTE: They’re referring to a letter of reprimand (of Mathur), which I had reproduced in Dissent (in January of 1999), that, evidently, is part of Mathur’s personnel file. But, of course, that I had possession of a copy of that document does not suggest that I, or anyone else, stole it from Mathur’s file.]
CORFIELD: (Says something; not much; I took no notes. Corfield describes Mathur as the “president of a university.”)
BRENNER: This defendant [Bauer] got the papers (the letter of reprimand) somehow…How Mathur performed his job in the past is newsworthy.
(Corfield argues that the events to which the “papers” are related occurred very long ago. In his filings, he refers to them as “ancient”--and thus unnewsworthy. Brenner seems to reject that adjective--“ancient”-- as applied here.)
SOBEL: Can I respond? [Sobel begins to discuss Schulmann…]
[At this point, Wendy briefly borrows my pen and tablet, and so my notes have a 2 minute gap.]
BRENNER: (He reads aloud from Schulmann.)
SOBEL: Carol directs Brenner to a section of Schulmann. The lawyers argue about the “standard” that must be met by the person who brings the suit. The judge favors Carol’s interpretation.
She refers to a “misdirected fax” (from Mr. B to the chancellor), which is cited by Mathur as evidence of my alleged “theft.” [The fax was a copy of a letter in which the district’s attorney, Spencer Covert, opines that Mathur had indeed violated federal law by distributing a student’s transcripts. In fact, Covert’s letter had been widely distributed on campus not long after it was sent by Covert to IVC.] The fax, she says, was sent to the chancellor two days after the publication of the first Dissent at issue in this case. There is no evidence that the fax even got to the defendant (Bauer). The faxed Covert letter never appeared in the newsletter. So where’s the evidence of theft?
BRENNER: Brenner opines that the Dissent stories are newsworthy. Further, there’s “no showing” that the reports were untruthful “that I can see.” There “is no showing” that, in the case of this defendant, the papers were unlawfully obtained. The evidence doesn’t seem to be here.
CORFIELD: Look at Schulmann. It isn’t about theft (?).
BRENNER: You keep saying (that the defendant engaged in theft). But there’s no evidence.
CORFIELD: We don’t have to prove that there was theft. He refers to 425.16 [California’s anti-SLAPP statute] and the Supreme Court.
BRENNER: …Brenner asks (I think) whether there is evidence that the defendants (Bauer and Mr. B) conspired…
Brenner says: I’ve denied these motions before, but the defendant [Bauer] is exercising his 1st Amendment rights. He is reporting on a matter of public interest.
Finally, Brenner says: I don’t think there’s any evidence…I will grant the motion [to dismiss Mathur’s suit].
CORFIELD: [Corfield looks as though someone has stolen his Woody.] C sputters something about a “leave to amend.”(?)
[Apparently, this “leave to amend” business is a desperate move on C’s part; Brenner responds as though Corfield has committed a faux pas. He indicates that he has made his ruling and that’s that.]
* * * * *
Well, we left the courtroom, and we were pretty damned pleased. Jan, who was very impressed by Carol’s performance, stepped back from her and intoned: “I’m not worthy.” Others squealed or laughed. We wandered down to the hall to the elevators, talking and joking.
As we waited for the elevator to arrive, Mr. Corfield snuck up behind us and then rudely interrupted, asking Carol about Mr. B’s attorney, with whom he wanted to arrange a conference. Wendy turned to him and said that Corfield was looking for her. As he commenced speaking, Surfer Joe poked Wendy hard in the shoulder, like she was Annette Funicello or somethin’. She kicked sand in his face. (Well, not really. She was very professional.)
Next: attorneys’ fees. Fun fun fun! —CW
March 2, 2000,
IRVINE WORLD NEWS
College president’s suit against professor dismissed
By Laura Hayes
On Tuesday, an Orange County Superior Court judge granted professor Roy Bauer a special motion to strike an invasion of privacy lawsuit filed against him in January by Raghu Mathur, president of Irvine Valley College.
“The motion was based on legislation to protect people like me when they are speaking the truth about a public official,” said Bauer.
The lawsuit charged that Bauer had published in his newsletter “Dissent” in January 1999 a confidential memorandum that Mathur claims was stolen from his personnel file. The 1996 memo centered on administrative concern with Mathur’s handling of a student’s transcript.
Carol Sobel, Bauer’s attorney, said the statute employed by the court is aimed at stopping at an early stage a lawsuit aimed at preventing citizens from participating in the legislative process.
“If the basis in the lawsuit is related to free speech and concerns a matter of public concern, then the lawsuit should be stopped at the earliest possible moment,” said Sobel.
Judge Michael Brenner ruled that how Mathur performs his duties as college president is a matter of public concern and he didn’t see anything in the published statements that appeared untrue, said Sobel.
After hearing from both sides, the motion was granted when the judge determined there was not enough evidence that Mathur would prevail in the invasion of privacy claim.
“You’ve got to show that you’re likely to win,” said Bauer.
Michael Corfield, Mathur’s attorney, said the judge only considered the defamation of character issue and failed to focus enough attention on the invasion of privacy issue. He said he will talk to Mathur about the possibility of an appeal.
MATHUR IN A LATHER: A SLAPP-SUIT COMEDY
By Big Bill B [aka Roy Bauer]
[Dissent 47, 3/20/00]
Background: on the 29th of February, Judge Michael Brenner of OC Superior Court granted a motion to dismiss Raghu Mathur’s lawsuit against me. Mathur had accused me of invading his privacy by reporting (in the January 11 & 19, 1999, issues of Dissent) his violations of a federal law that, ironically, protects the privacy of students. Brenner had ruled that the reports were “newsworthy” and that I should be afforded the protection of the 1st Amendment and California’s anti-SLAPP statute. Two weeks later, on the 14th of March, Judge McEachen, sitting in for Brenner, issued a ruling on Terry Burgess’ motion to dismiss (Burgess had also been named in the suit). Terry had been accused of conspiring with me to break into Mathur’s personnel file, thereby securing a copy of Larios’ reprimand of Mathur plus a legal opinion from the district’s attorney, Spencer Covert. According to Covert’s opinion, Mathur had indeed violated the federal law and district policy by distributing a student’s transcripts (in a failed attempt to discredit an administrator).
The misdirected philosopher:
MARCH 14: Addled by hypoglycemia and still hobbling from a nasty fall in the shower, I entered the big downtown court building, and, as usual, I didn’t get past the metal detector. At least they didn’t make me take off my shoes and belt, as they once did in the federal court building in LA!
Eventually, they let me in, and I headed upstairs to the 3rd floor, but I couldn’t find the courtroom anywhere. I consulted a directory: Brenner was on the 5th floor, not the 3rd! I headed up, arriving fifteen minutes late, at about 1:45. Entering courtroom 112, I beheld a stranger on the bench: a Judge David T. McEachen. Evidently, McEachen had taken over for Brenner for the day.
As I sat down next to Wendy, a pissed off lawyer was addressing the court about a company named “Paradigm.” “Paradigm took this money!” said someone, according to the lawyer. When the lawyer ceased yammering, Judge McEachen turned to the other guy, smiled benevolently, and said: “It’s your turn.”
Meanwhile, Wendy wrote me a note that said that we’re number 15, and McEachen’s now on number 9, and it shouldn’t take him long to get to us, ‘cuz most people didn’t file their 378s. —Lawyers talk that way.
The pissed off lawyer—a Mr. Burger—was fumin’ again, referring to another judge as “Black Jack Ryan,” which evoked laughter among the lawyers and bemusement or irritation from McEachen. The other guy responded with: “Mr. Burger will strike me if I’m wrong,” but he was wrong (I think), and Burger didn’t lay a finger on ‘im.
The next case concerned “Mass Mutual.” “You got the tentative,” said McEachen to the attorneys.
The tentative ruling:
Maybe they got it, maybe they didn’t. Wendy wrote me a note, saying that there was a tentative ruling in our case, too , but she was unable to secure the damned thing. The day before, we learned of its existence but were told that “Brenner doesn’t issue tentatives.” It turns out that Corfield and his partner—Mr. Rovell—were in the same boat as us, the HMS Clueless.
“Mass Mutual is taking it out of her hide,” said one lawyer, over on the right. The left lawyer, an Aussie in an ill-fitting suit, looked from my perspective (directly behind him) like he was standing at a urinal. The first guy—in his early 60s and dressed for a trip to Palm Springs—said he was “emotional” about the case. “I probably screwed up,” he confessed. They discussed the concept of “surprise.” “Surprise is not enough,” said someone.
I had no idea what they were talking about.
Suddenly lapsing into abominable incorrectness, someone spoke of the “lady lawyer up in Idaho,” but no one seemed to care. The Palm Springs guy seemed upset about the tentative judgment, which, he said, “is unjust in the extreme.” Then the Aussie stopped urinating, zipped up, and referred to the “shenanigans” of the Palm Springer, who, in response, pivoted slowly on his tasseled golf shoes with affected indignation. I looked over at the bailiff, who affected wariness, and then over at the court reporter, who affected consciousness. Blah blah blah, said the judge. My eyes glazed over. I lapsed into unconsciousness.
Love never had a chance:
Right about then, Wendy shoved at me and ordered me to get the hell out of the way. Apparently, it was showtime! I gave her and Diana G, the other attorney, a wide berth as they filed past me and then through the little gate—into the “inner sanctum,” as Wendy calls it. This time, Brian Wilson (Corfield) was benched, replaced by his partner Mike Love (Mr. Rovell).
Love never had a chance.
McEachen, wasting no time, referred to the tentative ruling—the one we had not yet seen—as we studied his face for clues. He announced that our motion to strike—i.e., our motion to have Mathur’s suit dismissed—had been granted, at least in the tentative ruling, by Brenner. (Whoopee!) According to Brenner/McEachen, the plaintiff—that’s Mathur—had not met “his burden” of showing that he would probably prevail in court. (According to the anti-SLAPP statute, the plaintiff must show that he will likely win, or the suit is thrown out right at the start, and the defendant gets attorneys’ fees.) He had accused Terry and me of stealing “private” documents (a reprimand and a legal opinion) from Mathur’s personnel file, but, said the judge, there was no indication of where the documents in question had actually come from. (They sure as hell didn’t come from Mathur’s personnel file!)
Last month, in her response (on my behalf) to Mathur’s complaint, Carol Sobel (my attorney) had argued that the Dissent articles about Mathur and the student’s transcripts were “newsworthy.” According to the new tentative, the plaintiff again hadn’t “controverted” that claim. Neither had he controverted the claim that Mathur is a “public official.” (I think Brenner even noted that, in the case of one document—the legal opinion by Spencer Covert—there is no evidence that I even received it. Maybe that was because, though the Dissent had referred to Covert’s opinion, it had never actually quoted from it.)
The upshot: Slam dunkage.
The judge closed with an analysis: “same facts, same result.” He was saying, I think, that Mathur’s opposition (his filed response to Terry’s motion to strike) simply repeated the failings of Mathur’s earlier opposition to my motion to strike. Ouch.
The Rovel grovel: a malarkey switcheroo
Back on the 29th, Carol had argued that the anti-SLAPP statute, which is designed to counter the chilling effect of lawsuits against those who speak out against the powerful, applies in this case, and we had prevailed on that basis. The two issues of Dissent in question (January 11 and 19, 1999) reported that Mathur violated a federal law—FERPA—plus district policy. (Such, again, was the opinion of the district’s own attorney, Spencer Covert.) Essentially, Mathur’s lawsuit complaint was that I had violated his privacy by revealing this fact, which, he argued, was of no public interest.
When in doubt, reverse gears! Now Mathur’s lawyers argued, not that I had revealed a fact, but that the fact was no fact. That is, though Mathur had indeed disseminated a student’s transcripts, that didn’t mean he violated FERPA (and district policy). I think the idea was that, since Mathur’s dissemination occurred “internal” to the college, it was not an illegal dissemination. In effect, Rovell and Co. were abandoning their original “privacy” malarkey in favor of “defamation” malarkey.
Rovell yammered a bit about the anti-SLAPP statute and then focussed on the notorious January 13 (1999) “misdirected fax.” That was Burgess’ fax of the Covert opinion, which had been sent, accidentally, to the District! Evidently, on the 21st of January, Chancellor Sampson wrote Burgess concerning that fax, and Burgess responded with a letter dated January 29. Rovell now argued that, in the January 29 letter, in a key line, Burgess made an admission that shows that his more recent “declaration” (a sworn statement submitted to the court) is perjurious! (At that moment, Wendy, showing admirable self-control, refrained from socking Rovell in the jaw. I was impressed.)
Rovell also referred to a declaration, in which an instructor describes the widespread availability of the Covert opinion by 1996 and its location in the academic senate’s files as part of the public record. Rovell rejected the entire declaration, arguing that its author’s opinion that these academic senate files are public is “entirely conclusory,” i.e., not supported by the facts.
The Dissent reports were “offensive,” said Rovell, who began to shine with nervousness. He seemed to say that the Covert opinion was a matter of attorney/client confidentiality. (Rovell failed to notice that the opinion was not written for Mathur, but for the district, which had requested a legal opinion regarding the fellow’s actions.) Clearly, said Rovell, the reporting of the Covert letter (and Larios’ reprimand of Mathur) would be “offensive and objectionable to any reasonable person.”
“Lastly,” said Rovell, we must address the matter of “newsworthiness,” regarding which there are “six elements.” One is the “social value” of the facts. Covert’s opinion notwithstanding, Mathur never violated federal law, said Rovell. “How can a false fact have a social value?” An instructor’s personnel file, he said, is “inviolate.” We’re talking about attorney/client documents, he said, inexplicably.
At this point, the court reporter stopped Rovell, asking him to slow down. “Go ahead—slower,” said McEachen. Rovell, glistening with sweat, slowed down, but he kept shinin’.
Newsworthiness: that’s the key
It was Diana’s turn. “Newsworthiness,” she said, isn’t the “last issue,” as Rovell suggested; it’s the “first.” Brenner had decided two weeks ago that the Dissent reports were “newsworthy,” that they had reported matters of “public concern.” How a public official performs his job—Mathur had been the Chair of the School of Physical Sciences at the time of his misconduct—is newsworthy.
Diana referred to Burgess’ January 29 letter. If one reads Burgess’ comment in context, she said, it is clear that he does not acknowledge having ultimately sent the fax to Bauer. (In fact, I never received this document from Burgess.)
Actually, it makes no difference, said Diana, who provided Bauer with the Covert letter, because the report of Mathur’s violations of FERPA were newsworthy, and that’s the key. Still, there’s no evidence that Burgess was the source.
Diana referred to testimony that Covert’s legal opinion was “in circulation” around campus already in 1996. She referred to a declaration by an individual who had sent a letter to trustees in September of 1997; the letter included a copy of the Covert opinion. Clearly, Bauer could have received the Covert letter from many others besides Burgess.
Diana noted that the plaintiff’s attorney is ignoring the three cases she cited in her motion, which delineate which publications constitute a violation of privacy. A misdirected fax, she says, doesn’t cut it.
Diana reminded the court that it had already ruled that the facts reported in the two issues of Dissent were “newsworthy,” and so the plaintiff doesn’t have a leg to stand on. There is absolutely no evidence, she added, that Burgess (or Burgess and Bauer) “stole” documents from Mathur’s personnel file.
The bottom line: the president of IVC, when the head of an academic department, violated district policy and federal law, said Diana. That is a matter of public concern, and that’s what Dissent reported. Further, “plaintiff has not and cannot dispute that Mathur is a public official.” Therefore, he cannot show, as he must, that he will probably prevail in this suit.
Yogi Berra:
McEachen then gave Rovell an opportunity to provide a brief response. Brenner’s opinion of the 29th was “very unfortunate,” said Rovell. There’s an “abundance” of new facts that show, he added, that Mathur never violated the law. Diana’s point about Burgess’ January 29 letter relied on a “play on words,” said Rovell. Facts “can be true or false.” The facts reported in Dissent are false. Mathur does not deny that, internally, he sent around these transcripts, but that’s not illegal. Blah blah blah.
Finally, the judge spoke. He said that he had read Brenner’s notes. And then: “I’m granting the motion. To quote the esteemed Yogi Berra, it’s ‘déjà vu all over again.’” BOOM!
Out in the hallway, we yucked it up pretty good. When Corfield and Rovell approached us with outstretched hands, we shook ‘em. “If Brenner were here, he would have denied the motion,” said surfer dude Corfield. He was kidding, I guess.
Diana, still hangin’ ten, called Carol with her cell phone. “Hey Carol, we’re done. We won,” she said. Wendy turned to me: “Yeah, they got thumped.”
We walked with Diana downstairs. Out front, her ride drove up. She said: “Next, fees.”
Yeah. —BBB [Roy Bauer]
PART THREE: THE BROWN ACT CASES
(aka "Bauer I" and "Bauer II"):
BROWN ACT (a.k.a. “open meeting laws”).
 |
| John Williams |
Essentially, the Brown Act requires that decision-making occur in public, and therefore secret meetings (including "serial communications" leading to a "collective concurrence" prior to meetings) by "legislators" are strictly prohibited. Further, all items to be discussed by legislators must be clearly agendized, and the public must be permitted an opportunity to comment on any possible action prior to its consideration by officials. Finally, though some sensitive issues, specified by law, may be discussed in closed session, they must nevertheless be agendized and, again, the public must be permitted an opportunity to comment upon them prior to the meeting in which they are considered.
The Board Majority has a long history of violations of the Brown Act, starting with its first meeting (12/16/96) in which, during a closed session, it discussed and voted upon a reduction of reassigned time for academic senate officers--not a permitted closed session topic--without agendizing the matter. After the board appointed Raghu Mathur interim president of IVC in a closed session in April--the action was unagendized and the public was thus not allowed an opportunity to comment--a group of faculty and community members demanded a "cure," which the board ignored; this ultimately led to a decision, by OC Superior Court Judge MacDonald, that voided Mathur's appointment and decisions. (This has been dubbed, by the district, Bauer I.) Then, in July, the board reorganized the district in closed session, agendizing the matter deceptively as a "personnel" action, thereby robbing the public of an opportunity to comment on the action, which, in any case, is not among actions that may be taken in closed session. Then, prior to the September '97 board meeting, trustees engaged in secret serial meetings regarding a "deal" promoted by Board Majoritarian John Williams (see WILLIAMS). Each of these violations (and others, including a closed session address by Vishwas More) led OC Superior Court Judge Tully Seymour to write of the board's "persistent and defiant misconduct" relative to the Brown Act. The petitioner of Bauer II was awarded $98,000 in attorneys fees, though Seymour's judgment, and the fees, are being appealed.
(I wrote the above twenty years ago. There are one or two further chapters, though, essentially, the board did indeed repeatedly violate the Brown Act.)
SOCCCD/BROWN ACT NEWS COVERAGE, ETC.
• “Trustees allegedly violate Brown Act,” Saddleback College Lariat, January 30, 1997
In a battle waging between the Saddleback Community College District Board of Trustees and the academic senates of Saddleback and Irvine Valley colleges, the senates have accused the trustees of violating multiple laws and codes during the closed session of their Dec. 16, 1996 meeting….
[California's "open meetings" law is called the Brown Act. It requires that the deliberations and decisions of "legislative bodies --boards, etc.--be done openly and be properly agendized.]
[In July of ’97, acting in violation of the state’s “Open Meeting” Law, the board unilaterally reorganized the district, eliminating several Saddleback College deans, some of whom were sent to Irvine Valley College to replace School Chairs, all of whom were eliminated. Court documents reveal that, despite assuring faculty that no changes would occur during the summer, in the Spring of ‘97, IVC President Raghu Mathur directed his VPI to draw up a plan for reorganizing the district. It was that plan that was put into effect in July. Ultimately, the courts determined that the July action had violated the Ralph M. Brown Act. It was an instance of illegally secret action.]
• Written "demand for cure and correct [re violations of the Brown Act]," read (and handed) to SOCCCD Board of trustees during board meeting: May 19, 1997
The SOCCCD Board of Trustees has repeatedly disregarded provisions of the Brown Act, Government Code 54950, et seq. For instance, on April 28, 1997, during closed session, the Board of Trustees appointed Raghu Mathur as Interim President of Irvine Valley College. As you are aware, this appointment was a violation of Government Code Section 54954.2, which requires that
54954.2. (a) At least 72 hours before a regular meeting, the legislative body of a local agency or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session...No action or discussion shall be undertaken on any item not appearing on the posted agenda...For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format....
54956.7...PUBLIC EMPLOYEE APPOINTMENT...
54954.3 (a) Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is, within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.
We hereby demand that the board substantially comply with the aforementioned provisions. More specifically, we demand that the board rescind the appointment of Raghu Mathur as Interim President of IVC and provide proper notice and solicit public input insofar as board appointments are contemplated.
Respectfully submitted,
Roy Bauer
Mark McNeil
[The board ignored us. We filed a lawsuit and prevailed. This occurred more than once. Eventually, ruling against the board, the judge referred to its “persistent and defiant disregard” of the law.]
• [Article], from the Weekender (a south county insert of the LA Times), July 5, 1997
Two Irvine Valley College faculty members filed a complaint Tuesday in Orange County Superior Court alleging violations of the state's open meeting law by the college board of trustees when they appointed Raghu Mathur as interim president of Irvine Valley.
Roy Bauer, chair of the humanities and languages, and Mark McNeil, of the social and behavioral sciences, filed a writ of mandate with fellow faculty member Wendy Phillips acting as counsel. Phillips said the filing was equivalent to suing the seven members of the board as well as Chancellor Robert Lombardi.
The complaint alleges that the state's open meeting law, the Brown Act, was violated when four members of the board conferred beforehand and went into an April 28 closed meeting knowing they would appoint Raghu Mathur as interim president of Irvine Valley College. A violation would be a misdemeanor….
• College Job Changes Stir Controversy, LA Times, July 18, 1997
In a closed-session action that prompted three trustees to walk out in protest, trustees at the Saddleback Community college district voted 4 to 0 Wednesday night to revamp campus management at Irvine Valley College.
The dissenting trustees—David Lang, Marcia Milchiker, and Joan Hueter—walked out of the closed session before the vote on the restructuring plan was taken. The three disagreed with the plan and also accused the other trustees of violating the Brown Act by conducting the vote in closed session.
Under the new plan, which takes effect in the fall semester, all 10 IVC department heads will halt their administrative duties and return to the classroom full time. Also as part of the restructuring plan, five of 14 deans at Saddleback College will transfer to IVC to assume managerial tasks.
Meanwhile, the remaining Saddleback College deans will be responsible for more academic departments as part of an accompanying consolidation plan. For instance, liberal arts and social behavioral sciences departments will now be combined….
. . .
"We are in the grips of a Neanderthal board," Bauer said. "This is another chapter in that story.
"I think it's clear this board distrusts academics," he added. "They see themselves as the authority who issues orders, and our job is to simply follow them."….
[Ultimately, the courts decided that, indeed, the board had violated the Ralph M. Brown Act.]
• “Applause, hissing at college board meeting,” Irvine World News, August 21, 1997
Monday night's meeting of the college district board was marked by bursts of applause as well as hissing and booing from an overflow audience.
At issue was the reorganization of the administrative structure of Irvine Valley College in Irvine and Saddleback College in Mission Viejo.
The board voted 4-3 to ratify its decision made in private on July 16 to reorganize the academic administrative structure at the two colleges. Chancellor Robert A. Lombardi said that he thought at the July meeting—and still thinks—that the action taken was a personnel issue and could be done in a closed session.
Three board members, David Lang, Joan Hueter and Marcia Milchiker, walked out of the July 16 private meeting because they thought the issue was a policy matter and not a personnel matter, thus making the action a violation of the Brown Act, the state's open meeting law.
At the July 16 meeting, trustees Steven Frogue, John Williams, Dorothy Fortune and Teddi Lorch, voted 4-0 to reassign Irvine Valley College school chairs to full-time teaching, and at the same time cut the number of deans at Saddleback College in half. Deans were reassigned to Irvine Valley College. One resigned and was reassigned to teaching duties at Saddleback.
. . .
The action is widely viewed on campus as "political payback" for support or opposition to board candidates, according to one faculty member at the meeting….
• OC Superior Court Judge Tully H. Seymour, indicating which way he was leaning in the 2nd Brown Act lawsuit, in court, October 23, 1998
“It didn’t appear to [me] that a reorganization plan was a personnel item to begin with. It appeared that the board had acted on this in a closed executive session, and then, when challenged on it, came back and, in effect, reaffirmed its prior action without any real opportunity for the public to have any input….”
“There seems to be some substantial merit [to the petitioner’s case] and, to me, this is a very important kind of public policy type of case and, therefore, I am willing to devote whatever time is necessary, maybe even give it more time than I would a run-of-the-mill writ case….”
“I think what you are saying [SOCCCD attorney] Mr. Covert is that the statute contemplates that if you take an action that is illegal that you can then simply agendize it as, ‘We are going to ratify what we did in secret.’ I guess I find that a little bit offensive.”
[Back in July of ’97, the Board Majority deceptively agendized a district-wide reorganization as a “personnel” item. The Brown Act permits closed meetings for personnel items, but not for reorganizations.]
• Remark by OC Superior Court Judge Tully H. Seymour, in court, October 29, 1998.
“It would seem to the court that, at least on the face of it, that any time the board has a person coming in to address the board, that normally that should be on the agenda…I don’t think that then bringing the gentleman out in the public session and saying, ‘Now, tell us what you told us in the private session,’ and then the public can comment on it—I don’t think that is what the Brown Act in its case law contemplates…I would say that [these facts] would indicate that this board apparently doesn’t understand the Brown Act and its responsibilities thereunder. Hopefully, at some point, they are going to learn and get appropriate advice and follow that advice.”
[Among other violations of the state’s anti-secrecy law, the board had invited state official Vishwas More to speak in closed session without agendizing his visit and address.]
• “Judge faults trustees on closed meetings,” OC Register, November, 11, 1998
• [Editorial], Irvine World News November 12, 1998
… The majority bloc of the board of trustees of the South Orange County Community College District ran afoul of the Brown Act more than a year ago by making some decisions in private that one judge already has said they shouldn’t have. ¶ The board, a year or more later, is still extricating itself from such acts of poor judgment. ¶ For example, just two days ago the board had to backtrack and act formally in public to reassign several administrators, including one who has long since left the district. ¶ The college board faces another court hearing Friday in connection with alleged Brown Act violations. ¶ All of this costs taxpayers time and money and erodes trust in the board….
• [Article], Orange County Register, November 21, 1998
“I think what I’m seeing here is a consistent pattern that we are going to push this as far as we can,” said Seymour. “And the only thing that seems to work is for the courts to take action.”
[Seymour was discussing the 2nd Brown Act lawsuit—so called “Bauer II.”]
• “Board’s closed meetings bring actions by judge,” OC Register, January 21, 1999
He wants them taped and is referring past Brown Act violations to the DA.
A judge has ordered the South Orange County Community College District to tape-record its closed-door meetings for two years because of its “persistent and defiant misconduct” in violating state open-meeting laws.
. . .
…Wendy Phillips, lead attorney in the suit filed by Irvine Valley College Professor Roy Bauer, said the ruling was a clear victory. ¶ “The judge is saying the conduct is so corrupt that it needs to go the DA’s office,” said Phillips, herself a professor in the district. “I’ve been on cloud nine all day. We are vindicated.”….
• Brown Act violation? Meeting of the SOCCCD Board of Trustees, in closed session, September 13, 2005
DtB reported at the time: “The agenda for the Sept. 13 Dana Point closed session lists only one item: “Public Employee Evaluation of Performance…Chancellor.” However, we have it on good authority that the board did not discuss that topic but that, instead, it discussed issues highlighted by the accreditation agency (ACCJC) in its recent dismal evaluation of the two colleges.” (See Chancellor Mathur gets Brown Paper.)
Well, that’s a Brown Act violation. A month later, Chancellor Mathur was served with papers regarding that violation.
• The SOCCCD Board “cures and corrects” its Sept. 13 Brown Act violation, meeting of the SOCCCD board of trustees, October 24, 2005
Resolution 05-41 essentially amounts to (a) the assertion that no violation of the Brown Act occurred, plus (b) an action of curing and correcting any possible violation “to avoid the waste of time and money associated with the potential litigation of this meritless claim.”
DtB reported at the time: “The board acted—unanimously—to cure and correct its Brown Act violations of Sept. 13, a victory for open government. IVC Academic Senate Prez Wendy G noted that she as a private citizen, and not as the Senate Prez, asked for the correction, so the senate was not involved. “It could be, but it is not at this point,” she noted ominously.”
• “Trustees allegedly violate Brown Act,” Saddleback College Lariat, January 30, 1997
In a battle waging between the Saddleback Community College District Board of Trustees and the academic senates of Saddleback and Irvine Valley colleges, the senates have accused the trustees of violating multiple laws and codes during the closed session of their Dec. 16, 1996 meeting….
[California's "open meetings" law is called the Brown Act. It requires that the deliberations and decisions of "legislative bodies --boards, etc.--be done openly and be properly agendized.]
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