City Settles First Amendment Lawsuit

By Shawn Raymundo

A settlement agreement was reached earlier this month between the city and three San Clemente residents who brought forth a First Amendment lawsuit over allegations that late Mayor Steve Swartz and other city officials had violated free speech rights this past spring.

Under the Oct. 1 settlement, the city has agreed to ensure that it will protect citizens’ First Amendment rights by modifying its procedures in regard to protocols that must be followed before the city can lawfully remove someone from council chambers.

“These rules will protect residents’ right to speak, ensure documents are retained, and that before anyone is removed from the council chambers, the mayor, city attorney and council must follow precise and specific procedures,” San Clemente resident Brad Malamud, one of the plaintiffs in the suit, wrote in a press release.

According to Malamud, the city also picked up the more than $48,000 tab for the plaintiffs’ attorneys’ fees.

This past May, following a contentious city council meeting the previous month, Malamud and fellow residents Chanel Fetty and Anthony Rubolino filed a class-action lawsuit against the city and Swartz.

The mayor had died unexpectedly while on vacation with his wife in Palm Springs on May 8—the day after the suit was filed.

In their complaint filed in federal court, the group claims that during an April 16 council meeting, the city violated their First Amendment rights in the Constitution, which guarantees freedom of speech and petitioning the government, among others.

“In direct violation of these core rights and principles, the City and its mayor stifle and/or outright prevent, Plaintiffs and other members of the public from speaking out against the City or their elected representatives at public City Council meetings, through the ad hoc adoption or modification of unreasonable speech restrictions, and by discriminatorily enforcing the same against those who dare to express viewpoints disfavored by Defendants,” the lawsuit claimed.

At that April council meeting, the lawsuit stated that Swartz tried to prevent Malamud from speaking more than once by implementing a new rule meant to limit the number of opportunities for members of the public to address the council during oral communications periods.

San Clemente City Council meetings include two oral communications portions during the night—one near the outset and one toward the end. Despite previously granting citizens the ability to address the council during both periods, the new rule would have limited the public to a single speaking opportunity during one of the two oral communications portions.

Malamud was allowed to speak during the first comment portion that evening. However, when he later approached the dais to submit a comment card to talk during the second portion, Swartz said he would not call him up to speak.

“You’re not allowed to come up and talk,” Swartz said.

“I am allowed,” Malamud retorted.

“I’m not calling you,” Swartz responded. “You are stopped.”

“I am allowed. I will be speaking, so you can stop me when you throw me out,” Malamud said.

Councilmember Laura Ferguson was critical of the new rule and told Swartz she would leave the meeting, not wanting to participate “because we’re quashing public speech.”

After a handful of other citizens spoke, Swartz read the rules of public speaking printed on the council agenda and then ordered everyone to vacate the chambers. The public, he stated, would be allowed reentry with one caveat—they had to agree to abide by the rules of the city council.

While Malamud reentered and took his seat, Swartz announced that there will only be one more speaker, which was Rubolino. A seated Malamud stated that he, too, would be speaking, prompting Swartz to have him removed.

“Sir, will you please escort this man out,” Swartz told an Orange County Sheriff’s deputy. “He’s interrupting my meeting; he’s out of order (and) he can leave.”

When the officer approached Malamud, he exited the meeting.

In his press release, Malamud praised Ferguson as the only councilmember who “stood up for the rights of San Clemente residents” and then chided the rest of the city council for its refusal to resolve the case quickly and cost-effectively.

Shawn Raymundo
Shawn Raymundo is the city editor for the San Clemente Times. He graduated from Arizona State University with a bachelor’s degree in Global Studies. Before joining Picket Fence Media, he worked as the government accountability reporter for the Pacific Daily News in the U.S. territory of Guam. Follow him on Twitter @ShawnzyTsunami and follow San Clemente Times @SCTimesNews.