Judge rules lawsuit over Newport ballot measure arguments wasn’t trying to stifle free speech

A group of former Newport Beach City Council members weren’t trying to chill anyone’s free speech when they unsuccessfully sued the city clerk and a local activist over arguments opposing a local ballot proposition, an Orange County Superior Court judge ruled Friday.

They also won’t have to pay the victors’ attorney fees, Judge Robert Moss said in affirming a tentative ruling he issued Thursday.

The decision follows an August ruling in the overall case in which Judge Timothy Gibbs sided with City Clerk Leilani Brown and activist Bob Rush.

Former Newport mayors Keith Curry, Rush Hill and Mike Henn and former mayor pro tem Jean Watt sued in an attempt to have their argument against Measure T run in informational pamphlets for the November election in place of one written by Rush. They claimed Rush’s statement contained inaccuracies and didn’t represent true opposition. They also argued that organizational paperwork for the political action group Newporters for Ethical Government — for which Rush wrote — was flawed.

The defendants filed a motion to strike the complaint, calling it a SLAPP suit, or a strategic lawsuit against public participation. SLAPP suits are intended to censor, intimidate and silence critics by burdening them with legal costs until they abandon their criticism or opposition.

But Moss wrote that the plaintiffs only sought to challenge the validity of Rush’s statement and were not seeking any special dispensation.

“Even asking the court to substitute petitioners’ proposed ballot statement does not confer any personal benefit on petitioners,” he said. “An accurate ballot statement solely benefits the public.”

Moss added that granting the defendants’ motion “would discourage citizens from utilizing the very procedure the Legislature created for challenging ballot statements for fear of subjecting themselves to liability for attorney fees.”

Gibbs had ruled that if he allowed the plaintiffs’ argument against Measure T to run, the review periods for the substitution would have delayed publication of the pamphlets for up to three weeks. They would have cleared the Sept. 12 print deadline by a day, but the judge considered that too late for the election.

Measure T will ask voters to approve an amendment to Newport’s city charter to require 55% voter approval whenever the council wants to spend at least $50 million on capital projects using a financing method known as certificates of participation.

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