Project for Open Government v. County of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 PROJECT FOR OPEN GOVERNMENT, Case No.: 22-cv-00067-AJB-MDD

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Plaintiff, ORDER GRANTING IN PART

13 DEFENDANT’S MOTION TO

v. DISMISS AND DECLINING TO

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EXERCISE SUPPLEMENTAL

15 COUNTY OF SAN DIEGO, JURISDICTION OVER THE

REMAINING STATE LAW CLAIMS

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Defendant.

17 (Doc. No. 3)

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19 Before the Court is the County of San Diego’s (“Defendant” or “County”) motion

20 to dismiss Project for Open Government’s (“Plaintiff”) Complaint. (Doc. No. 3.) Plaintiff

21 filed an opposition, to which Defendant replied. (Doc. Nos. 7, 8.) For the reasons set forth

22 below, the Court GRANTS IN PART Defendant’s motion to dismiss and REMANDS the

23 remaining state law claims to San Diego Superior Court.

24 I. BACKGROUND

25 Plaintiff filed a Complaint in San Diego Superior Court, alleging that Defendant

26 violated the United States Constitution, California Constitution, and California’s

27 open-government laws when the County Board of Supervisors (“Board”) adopted

28 Resolution No. 21-174 (“Resolution”). (Doc. No. 1-2, Compl. at ¶¶ 5, 10, 14.) The

1 Resolution states that the Board “desires to make necessary changes to its Rules of

2 Procedures to promote more equitable, civilized public engagement while continuing to

3 honor the rights of all under the First amendment and free speech principles.” 1 (Doc. No.

4 1-2, Exh. A at 9.)2 To that end, the Resolution approved amendments to the Board’s Rules

5 of Procedures during public meetings. (Id.)

6 Plaintiff’s Complaint challenges these changes, claiming the amendments to Rule

7 4(l) “violate the free-speech rights of members of the public who desire to address the

8 [Board] during public meetings, in violation of the federal and state constitutions” and are

9 “impermissibly vague.” (Id. ¶ 10.) Plaintiff also alleges the changes to Rule 4(a)(2) “violate

10 state open-government laws applicable to the [Board] during public meetings.” (Id. ¶ 14.)

11 Defendant timely removed the case to federal court and thereafter filed the instant motion

12 to dismiss the Complaint. (Doc. Nos. 1, 3.)

13 II. LEGAL STANDARD

14 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint.

15 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to dismiss, a

16 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

17 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

18 To determine the sufficiency of the complaint, the court must assume the truth of all factual

19 allegations therein and construe them in the light most favorable to the plaintiff. Cahill v.

20 Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). This tenet, however, does not

21 apply to legal conclusions. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of

22 a cause of action, supported by mere conclusory statements, do not suffice.” Id.; Bell

23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court may dismiss a complaint

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1 Plaintiff attached to its Complaint, a copy of the Resolution and Rules at issue. As exhibits attached to

26 the Complaint, these materials are appropriate for the Court’s consideration in adjudicating the present

motion. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).

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2 Unless otherwise indicated, the pinpoint page citations in this Order refer to the ECF-generated page

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1 under Rule 12(b)(6) if “the complaint lacks a cognizable legal theory or sufficient facts to

2 support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d

3 1097, 1104 (9th Cir. 2008).

4 III. DISCUSSION

5 Defendant moves to dismiss the entirety of Plaintiff’s Complaint. With respect to

6 Plaintiff’s First Amendment claim, Defendant argues that Rule 4(l): (1) does not regulate

7 or restrict public speech, (2) is a proper exercise of the Board’s free speech rights, and (3)

8 is not unconstitutionally vague. The Court discusses these arguments in turn.

9 Rule 4(l) provides that if a person makes discriminatory or harassing remarks at a

10 public meeting, the Chairperson may interrupt and admonish the speaker by taking the

11 following actions: (1) stating the County’s policy regarding discrimination and harassment,

12 (2) stating that comments in violation of County policy will not be condoned, and (3)

13 inform the speaker that their language is unwanted, unwelcome and/or inappropriate, and

14 that they interfere with the ability of those present to listen and understand. (Doc. No. 1-2

15 at 24.) The Rule defines “discriminatory or harassing remarks” as including “legally

16 protected speech in a Board meeting that disparages an individual or group based on their

17 perceived race, religion, sexual orientation, ethnicity, gender, disability, etc. or other hate

18 speech but does not rise to the level of a criminal threat or inciting violence.” (Id.) The

19 Rule states that during the admonishment, the speaker’s time will be held, and the speaker

20 will receive their full allotment of time and be allowed to resume speaking after the

21 admonishment. (Id.) If the speaker’s comments “continue to disturb, disrupt, or impede the

22 orderly conduct of the meeting,” the Chairperson may have the speaker removed from the

23 meeting. (Id. at 23–24.)

24 As an initial matter, the Court agrees with Defendant that the Board’s admonishment

25 of the speaker’s discriminatory and harassing remark constitute government speech, which

26 is not subject to scrutiny under the First Amendment’s Free Speech Clause. See Pleasant

27 Grove City v. Summum, 555 U.S. 460, 467 (2009) (emphasizing the Free Speech Clause

28 “does not regulate government speech”). The United States Supreme Court has recognized

1 that a government entity has the right to speak for itself, is entitled to say what it wishes,

2 and to select the views it wants to express. See id. at 467–68 (quoting Board of Regents of

3 Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000), Rosenberger v. Rector and

4 Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), and Rust v. Sullivan, 500 U.S. 173, 194

5 (1991)). Here, through the Resolution and adopted rule, the Board expresses its opinion

6 that discriminatory and harassing remarks do not promote civilized public engagement and

7 are contrary to the County’s Code of Ethics. (Doc. No. 1-2 at 9, 25.) Plaintiff offered no

8 explanation as to why the government’s criticism of discriminatory or harassing remarks

9 does not constitute government speech. As the Court of Appeals for the District of

10 Columbia Circuit persuasively explained:

11 We know of no case in which the first amendment has been held to be

implicated by governmental action consisting of no more than governmental

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criticism of the speech’s content.

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A rule excluding official praise or criticism of ideas would lead to the strange

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conclusion that it is permissible for the government to prohibit racial

15 discrimination, but not to criticize racial bias; to criminalize polygamy, but

not to praise the monogamous family; to make war on Hitler’s Germany, but

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not to denounce Nazism. It is difficult to imagine how many governmental

17 pronouncements, dating from the beginning of the Republic, would have been

unconstitutional on that view of things.

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19 Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir. 1986) (internal quotations omitted). For

20 the foregoing reasons, the Court concludes the admonishment amounts to government

21 speech and is therefore not subject to the Free Speech Clause.

22 Turning to Plaintiff’s challenge to the meaning of “discriminatory or harassing

23 remarks,” Plaintiff argues the inclusion of the word “etc.” in the definition renders it

24 impermissibly vague. This definition, however, merely describes the circumstances under

25 which the Board may exercise its government speech, which as noted above, is outside the

26 purview of the Free Speech Clause. Plaintiff’s vagueness and overbreadth challenges are

27 therefore without merit. See Pleasant Grove, 555 U.S. at 467–68 (If the government was

28 “engaging in their own expressive conduct, then the Free Speech Clause has no

1 application.”); Pulphus v. Ayers, 249 F. Supp. 3d 238, 254 (D.D.C. 2017) (“When the

2 government speaks, it is free to promulgate vague guidelines and apply them arbitrarily.”)

3 Moreover, because Rule 4(1) does not preclude individuals from resuming their

4 remarks after the government has expressed its counter speech and preserves the full

5 allotment of the speaker’s time during the admonition, the Court does not find this aspect

6 of the Rule a restriction on speech for purposes of a First Amendment analysis. Plaintiff’s

7 contrary argument is unavailing.

8 Plaintiff asserts that Rule 4(l) is unconstitutional because the First Amendment

9 protects speech not only “from patent restraints, but also from more subtle forms of

10 governmental interference” and cites Huntley v. Pub. Utilities Comm’n, 69 Cal.2d 67

11 (1968) in support. (Doc. No. 7 at 12.) Huntley, however, is distinguishable because it did

12 not involve facts like those present in this case. In Huntley, the California Supreme Court

13 considered the Public Utilities Commission’s requirement that subscribers who transmitted

14 recorded messages include in the recording their name and address. See 69 Cal. 2d at 70.

15 The governmental interference in Huntley was a forced disclosure of information. It said

16 nothing about whether a government’s criticism of a speaker’s discriminatory or harassing

17 remark at a public meeting is actionable under the First Amendment. Because the case

18 before this Court does not involve the compelled disclosure of information, the Court finds

19 Plaintiff’s reliance on Huntley misplaced.

20 As to Rule 4(l)’s provision permitting the Chairperson to stop a speaker’s time or

21 have the speaker removed from the meeting for “continu[ing] to disturb, disrupt, or impede

22 the orderly conduct of the meeting,” Ninth Circuit case law is clear that while the First

23 Amendment constrains the government’s power even in a limited public forum like a city

24 council meeting, speakers may be stopped or removed if their comments are actually

25 disruptive. See Norse v. City of Santa Cruz, 629 F.3d 966, 979 (9th Cir. 2010) (Kozinski,

26 J., concurring) (collecting cases); accord White v. City of Norwalk, 900 F.2d 1421, 1425

27 (9th Cir. 1990) (“While a speaker may not be stopped from speaking because the moderator

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1 disagrees with the viewpoint he is expressing, it certainly may stop him if his speech

2 becomes irrelevant or repetitious.”) (citation omitted).

3 Defendant specifically argues that Rule 4(l) is squarely in compliance with the Ninth

4 Circuit’s precedent in White v. City of Norwalk. There, the court considered a facial

5 challenge to a city ordinance that permitted a city council to remove individuals from

6 public hearings if they made “personal, impertinent, slanderous or profane remarks.” 900

7 F.2d at 1424. The court upheld the ordinance, explaining that it was not unconstitutional

8 on its face because “[s]peakers are subject to restriction only when their speech disrupts,

9 disturbs, or otherwise impedes the orderly conduct of the Council meeting.” Id. at 1426.

10 (internal quotations omitted). The Court agrees that Rule 4(l) is akin to the ordinance

11 upheld in White.

12 Like in White, the Rule at issue here is not facially unconstitutional because its

13 language reveals that the Chairperson’s ability to stop a speaker’s discriminatory or

14 harassing remarks is limited to instances where the comments actually “interfere with the

15 ability of those present to listen and understand” and “continue to disturb, disrupt, or

16 impede the orderly conduct of the meeting.” (Doc. No. 1-2 at 24.) As Rule 4(l) is analogous

17 to White in this consequential way, the Court sees no reason why White does not govern

18 here. And Plaintiff offered none. Defendant’s opening brief made plain its reliance on

19 White, yet Plaintiff chose not to address or otherwise distinguish this case. See generally

20 Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“[W]hen a plaintiff files an

21 opposition to a dispositive motion and addresses only certain arguments raised by the

22 defendant, a court may treat those arguments that the plaintiff failed to address as

23 conceded.”).

24 Upon consideration of the Complaint, the Resolution and Rules attached thereto, and

25 the controlling law, the Court finds Plaintiff has not and cannot state a First Amendment

26 claim. See Mendiondo, 521 F.3d at 1104; SmileCare Dental Grp. v. Delta Dental Plan of

27 California, Inc., 88 F.3d 780, 783 (9th Cir. 1996) (“The court may dismiss a complaint as

28 a matter of law for (1) lack of a cognizable legal theory or (2) insufficient facts under a

1 || cognizable legal claim.) (internal quotations omitted). Accordingly, the Court dismisses

2 || without leave to amend Plaintiffs cause of action under the First Amendment of the United

3 || States Constitution.

4 Lastly, as the Court has dismissed Plaintiff's sole federal claim at the outset of the

5 || litigation, the Court exercises its discretion to decline exercising supplemental jurisdiction

6 the remaining state law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

7 (1988) “Where, as here, all federal-law claims in the action have been eliminated and

8 pendent state-law claims remain, the district court has a powerful reason to choose

9 || not to continue to exercise jurisdiction.”); Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911

10 Cir. 2011) (The district court did not err “in declining to exercise supplemental

11 ||jurisdiction over [plaintiff's] state law claims” when it “properly disposed of ‘all claims

12 || over which it had original jurisdiction.’”’) (citing 28 U.S.C. § 1367(c)(3)).

13 CONCLUSION

14 For the reasons stated herein, the Court GRANTS IN PART Defendant’s motion to

15 dismiss. Plaintiff's claim under the First Amendment of the United States Constitution is

16 ||dismissed without leave to amend. Because the Court declines to exercise supplemental

17 ||jurisdiction over the remaining state law claims, the Clerk of Court is instructed to

18 || REMAND the remainder of Plaintiff's Complaint to the San Diego Superior Court and

19 close this case accordingly.

20 IT IS SO ORDERED.

21 Dated: September 10, 2022 © ¢

22 Hon, Anthony J.Battaglia

23 United States District Judge

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