Case 8:11-cv-01355-JVS-M)LG

Document 1

Filed 09/07/11

Page 1 of 16
)

Page ID #:1

1 BELINDA ESCOBOSA HELZER (BAR NO. 214178) bescobosahelzerlalac1u-sc.org
2 LUCERO CHAVBz (BAR NO. 273531) 1chavezlalac1u-sc.org
3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 2140 W. Chapman Ave;>. Suite 209
4 Orange, California 92808 Telepllone: (714) 450-3962
5 Facsimile: (714) 450-3969

'6 FILED-SOU
CLERK Us

H'SE1RRN DIVISION

, .

leT COURT

SEP -72011

6 EPmETaiEl:R~e1l. iEaLsbIeArgSlBalEaRc1Gu-(sBc.AorRg NO. 18911 0)

._ByC_TERNA_L_D_'ST_RI_CT_O_FC_AL~IFO~R~N£/AL

7 ACLUFOUNDAnON OF SOUTHERN CALIFORNIA

DEPUTy

1313 West Eighth Street

8 Los Angeles CA 90017

Telephone: (213) 977-9500

9 Facsimile: (213) 977-5297

10 Attorneys for Plaintiff

11 UNITED STATES DISTRICT COURT
12 FOR THE CENTRAL DISTRICT OF CALIFORNIA
13

14 WILLIAM D. FITZGERALD,
15 Plaintiff,
16 vs.
17 ORANGE COUNTY; BILL
18 CAMPBELL, in his official and
19 individual capacities; JOHN MOORLACH, in his official and
20 individual capacities; JANET

) Case No.:
)
~
) )
~ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND ) NOMINAL DAMAGES
[Pursuant to 42 U.S.C. & 1983 - for violation ofthe First and Fourteenth Amendments; Cal. Const. art. I § 2]

21 NGUYEN, in her official and

individual capacities; DOES 1 through

22 10, in their official and individual

capacities, 23

24 Defendants.
25

26 27 28

Case 8:11-cv-01355-JVS-M)LG Document 1 Filed 09/07/11 Page 2 of 16 Page ID #:2

1

Plaintiff William D. Fitzgerald alleges as follows:

2

1. This action seeks declaratory and injunctive relief, as well as nominal

3 damages, to remedy the deprivation ofMr. Fitzgerald's federal and state

4 constitutional and statutory rights. When Mr. Fitzgerald criticized the Orange

5 County Board of Supervisors during open and public Orange County Board of

6 Supervisor meetings, Defendants silenced him, violating Mr. Fitzgerald's right to

7 free speech, as well as his right to petition the government for redress of

8 gnevances.

9

JURISDICTION AND VENUE

10

2. This Court has jurisdiction over the federal civil rights claim under 28

11 U.S.c. §§1331 and 1343. Declaratory and/or injunctive relief is authorized under

12 28 U.S.c. §§2201 and 2202. This Court has supplemental jurisdiction over the

13 state law claims under 28 U.S.C. §1367(a).

14

3. Venue is proper in this Court under 28 U.S.C. § 1391(b) because

15 Defendants reside in, and all incidents, events, and occurrences giving rise to this

16 action occurred in, the County of Orange, California.

17

PARTIES

18

A. Plaintiff

19

4. Plaintiff William D. Fitzgerald is now, and at all times mentioned in

20 this Complaint was, a resident of Orange County, California. Mr. Fitzgerald is one

21 of the Directors of Anaheim Homeowners for Maintaining our Environment

22 ("HOME"), a twenty-two-year-old unincorporated association of Orange County

23 homeowners who oppose government waste and corruption in order to protect

24 homeowners'rights. The majority of HOME's membership now consists of

25 elderly, long-time homeowners.

,

26

5. Mr. Fitzgerald is military veteran who is deeply interested in local

27 politics. He has spoken at various meetings of the Orange County Board of

28 Supervisors during the portions ofthe meetings that are reserved for public

Case 8:11-cv-01355-JVS-M)LG Document 1 Filed 09/07/11 Page 3 of 16 Page ID #:3

1 participation. Mr. Fitzgerald speaks at these meetings to inform elected officials

2 not only of his own opinion and facts on matters, but also of the opinions of

3 members of HOME who are hesitant to speak or too elderly to do so. As a veteran

4 who has fought to defend such important freedoms, he sees such participation as a

5 civic responsibility, which he takes very seriously, and desires to continue to

6 express his opinion on various matters of public concern during appropriate times

7 at Orange County Board of Supervisor meetings.

8

B. Defendants

9

6. Defendant Orange County ("County") is a political division of the

10 State of California. The cities and unincorporated areas ofthe County are divided

11 into five Supervisorial Districts, and each district elects a Supervisor to a four-year

12 term. Each Supervisor can serve two four-year terms. These five elected officials

13 comprise Defendant County's Board of Supervisors ("Board" or "OCBOS"). In

14 its legislative duties, the Board adopts ordinances, resolutions, and minute orders,

15 as well as Rules of Procedures that govern conduct at Board meetings.

16

7. Defendant Bill Campbell is a member of the Orange County Board of

17 Supervisors and is the Chair of the Board. He was first elected to the Board in

18 January 2003. He was elected Chairman of the Board by his colleagues for the

19 first time in January 2005, for a second term in January 2006, and most recently in

20 January 2011. Generally, the Chair acts as the presiding officer at all meetings of

21 the Board, charged with preserving order and decorum and decide all questions of

22 order. ORANGE COUNTY RULES OF PROCEDURE, RULE 9.1 On information and

23 belief, Defendant Campbell is now, and at all times mentioned in this Complaint

24 was, a resident of Orange County, California.

25

8. Defendant John Moorlach is a member of the Orange County Board

26

27

1 Unless otherwise indicated, all references to "Rule" shall mean the

Orange County Rules of Procedure, which were adopted by the Orange County

28 Board of Supervisors on January 27,2009.

2

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1 of Supervisors and is Vice Chair of the Board. He was first elected to the Board in

2 2006. In the absence, or inability to act, of the Chair, the Vice Chair sh!ll1 have

3 and exercise al1 the powers and duties of the Chair. RULE 10. On information and

4 belief, Defendant Moorlach is now, and at al1 times mentioned in this complaint

5 was, a resident of Orange County, California.

6

9. Defendant Janet Nguyen is a member ofthe Orange County Board of

7 Supervisors. She was first elected to the Board in February 2007. Defendant

8 Nguyen was elected Chair of the Board in December 2009 and served as Chair

9 until December 2010. As Chair, Defendant Nguyen acted as the presiding officer

10 at al1 meetings of the Board, charged with preserving order and decorum and

11 decide al1 questions of order. RULE 9. On information and belief, Defendant

12 Nguyen is now, and at al1 times mentioned in this complain was, a resident of

13 Orange County, California.

14

10. Plaintiff does not know the true names of Defendants DOE 1 through

15 10 inclusive, and therefore sues them by these fictitious names; however, on

16 information and belief, Plaintiff al1eges that at least one of the said Doe

17 Defendants is an Orange County Sheriff deputy responsible for security at Orange

18 County Board of Supervisor meetings. Plaintiff will amend this Complaint to

19 include the true names and capacities of said Doe Defendants once they are

20 ascertained.

21

11. On information and belief, Plaintiff al1eges that each ofthe

22 Defendants designated as a DOE is legally responsible in some manner for the

23 occurrences alleged in this Complaint, and directly involved in unlawful1y causing

24 the injuries and damages to Plaintiff as al1eged in this Complaint.

25

12. At al1 times mentioned in this Complaint, unless otherwise al1eged,

26 each Defendant is an agent, employee, and/or co-conspirator of every other

27 Defendant, and in doing the acts alleged in this Complaint, was acting within the

28 course, scope, and authority ofthat agency or employment, and in furtherance of

3

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1 the conspiracy to violate Plaintiffs constitutional and statutory rights, with the

2 knowledge and consent of each of the other Defendants.

3

FACTS

4

13. The California Legislature has found and declared that public

5 commissions, boards and councils, like the Orange County Board of Supervisors,

6 existto aid in the conduct of the people's business, and their actions are intended

7 to be taken openly and their deliberations be conducted openly. See CAL. GOy'T

8 CODE § 54950. Accordingly, "[a]ll meetings of the legislative body of a local

9 agency shall be open and public, and all persons shall be permitted to attend any

10 meeting of the legislative body ofa local agency." CAL. GOy'T CODE § 54953(a).

11 Moreover, "[e]very agenda for regular meetings shall provide an opportunity for

12 members of the public to directly address the legislative body on any item of

13 interest to the public, before or during the legislative body's consider ofthe item,

14 that is within the subject matter jurisdiction ofthe legislative body, provided that

15 no action shall be taken on any item not appearing on the agenda." CAL. GOy'T

16 CODE § 54954.3(a). "The legislative body of a local agency shall not prohibit

17 public criticism of the policies, procedures, programs, or services of the agency, or

18 ofthe acts or omissions of the legislative body." CAL. GOy'T CODE § 54954.3(c).

19 The local legislative body may, however, "limit[] the total amount of time

20 allocated for public testimony on particular issues and for each individual

21 speaker." CAL. GOy'T CODE § 54954.3(b).

22

A. Meetings of the OCBOS - Generally.

23

14. At all relevant times, the Board's meetings are governed by the

24 Orange County Board of Supervisor's Rules of Procedure, which were adopted by

25 the Board on January 27,2009. The Board also issues "Speaker Guidelines,"

26 which are made available to the public.

27

15. The regular meetings of the Board are held each Tuesday beginning at

28 9:30 a.m. RULE 4. The order of business at regularly scheduled Board meetings

4

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1 includes scheduled agenda items such as the Consent Calendar, Discussion

2 Calendar, and Public Hearings, as well as time for non-agenda items, which are

3 addressed during Public Comments. RULE 23. Board members also have an

4 opportunity to comment during "Board Comments," which is scheduled after

5 "Public Comments." Id.

6

16. All regular meetings of the Board are open to the public and the

7 public is provided the opportunity to participate in the meeting on items that are

8 either on the agenda or not. RULE 43.

9

17. "Members ofthe public who wish to discuss a consent, discussion, or

10 public hearing item should complete a speaker request form and deposit it with the

11 Clerk prior to the Clerk's reading of the agenda item. The Clerk will then advise

12 the Board of such request prior to the vote approving the item." RULE 44. "Any

13 individual member of the public may pull an item from the consent calendar for

14 discussion and separate vote, and may speak to each item for no longer than three

15 minutes prior to the vote on the item." !d.

16

18. "Under the Public Comments portion of the meeting, members ofthe

17 public [are] allowed to address the Board regarding any off-agenda item within the

18 subject matter jurisdiction of the Board. No action may be taken on off-agenda

19 items unless authorized by law. Comments under the Public Comments portion of

20 the meeting shall be limited to three (3) minutes per speaker, and twenty (20)

21 minutes for all comments, unless different time limits are set by the Chair." RULE

22 45.

23

19. Rule 46 ofthe Orange County Board of Supervisor's Rules of

24 Procedure, entitled "Addressing the Board," states in relevant part:

25

Each person who addresses the Board shall refrain from making

26

personal, impertinent, slanderous or profane remarks to any member

27

of the Board, staff or the general public. Any person who makes such

28

remarks, or who utters loud, threatening, personal or abusive

5

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)

1

language, or engages in any other disorderly conduct which disrupts,

2

disturbs or otherwise impedes the orderly conduct of any Board

3

meeting shall, at the discretion ofthe Chair, or a majority of the

4

members, be barred from further addressing the Board at the meeting.

5

If such conduct thereafter continues so as to disrupt the orderly

6

conduct of the public's business, the Chair shall order the person

7

removed from the meeting room. Aggravated cases may be

8

prosecuted on appropriate complaint signed by the Chair, a member

9

of the Board or any other County representative.

10

20. Orange County Board of Supervisors Speaker Guidelines state in

11 pertinent part: "Each person who address the Board shall refrain from making

12 personal, impertinent, slanderous or profane remarks to any member ofthe Board,

13 staff or the general public."

14

21. The Orange County Sheriffs Department, or a representative

15 designated by the Sheriff, serves as the Board's Sergeant-at-Arrns at Board

16 meetings and is required to carry out all orders given by the Chair for the purpose

17 of maintaining order and decorum at Board meetings. RULE 41.

18

B. JUly 27. 2010 Regular Meeting ofthe OCBOS.

19

22. On July 27,2010, during the Public Comments portion of regularly

20 scheduled OCBOS meeting, the Board refused to allow Mr. Fitzgerald to speak for

21 his allotted three minutes because the Board disagreed with the content and/or

22 viewpoint of Mr. Fitzgerald's speech.

23

23. After approaching the podium, Mr. Fitzgerald, frustrated over the

24 property tax decisions ofthe County Appeals Board, criticized the Clerk of the

25 OCBOS who operates the Appeals Board for mismanagement, which he believed

26 resulted in unjust taxes to homeowners. Mr. Fitzgerald also criticized then-Chair

27 Defendant Nguyen for her then-recent statements that the Clerk was doing a

28 wonderful job running the Appeals Board. Less then two minutes into his

6

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1 prepared statement, Mr. Fitzgerald then stated "it is apparent that [the Clerk ofthe

2 Board] is like the commander of a concentration camp. She is just following the

3 orders of her bosses." At that point, Defendant Nguyen and Defendant Moorlach

4 interrupted Mr. Fitzgerald and at least one of the Doe Defendants, an Orange

5 County Sheriffs Department deputy, approached Mr. Fitzgerald and instructed

6 him to leave the podium. Defendant Moorlach scolded Mr. Fitzgerald for not

7 being polite, informed him that they were "in a position of authority" over him,

8 and promptly had him escorted from the meeting.

9

24. After silencing Mr. Fitzgerald, Defendant Moorlach went on to

10 cqticize Mr. Fitzgerald, stating that he has no credibility and that, although he

11 believes in freedom of speech, he does not think that Mr. Fitzgerald's freedom of

12 speech allows Mr. Fitzgerald to "attack certain individuals." Defendant Moorlach

13 also expressed that "the five longest years of [his mother's life] were the five years

14 she spent in Nazi-occupied Netherlands" and that he believed Mr. Fitzgerald's

15 comments were inappropriate.

16

C. August 23, 2011 Regular Meeting ofthe OCBOS.

17

25. On August 23,2011, during the OCBOS public hearing on an Agenda

18 Item regarding redistricting, when speakers are supposed to be permitted to speak

19 for three minutes each, OCBOS refused to allow Mr. Fitzgerald to express his

20 opinions because of the content and/or viewpoint of his speech. After

21 approaching the podium, Mr. Fitzgerald attempted to express his opinion that the

22 County's redistricting plan would unfairly benefit the Vietnamese community and

23 dilute the voting power of Latinos in Orange County. Approximately two minutes

24 into his prepared statement, Mr. Fitzgerald highlighted Latino veterans and

25 criticized the County for what he believed to be a disrespect for the Latino

26 population. Mr. Fitzgerald also criticized some members of the Vietnamese

27 community, who spoke uninterrupted at that hearing, calling some "cowardly".

28 Defendant Campbell abruptly interrupted Mr. Fitzgerald before his allotted three

7

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Page 9 of 16 Page ID #:9

1 minutes had expired to give the floor to Defendant Nguyen, who proceeded to

2 berate him purely for the content of his speech, calling it "appalling" and "wrong"

3 and indicating that Mr. Fitzgerald was not allowed to criticize "members of any

4 communities coming to this country, this great country, for their freedom and

5 democracy."

6

D. September 6. 2011 - Special Meeting of OCBOS.

7

26. Shortly after the August 23, 2011 meeting, the Board called for a

8 special meeting to conduct a second public hearing on redistricting to be held on

9 September 6,2011 at 10:00 a.m. Members ofthe public were allowed to attend

10 and participate in this special meeting by speaking for up to three minutes.

11

27. Mr. Fitzgerald desired to participated in this special meeting, as well

12 as subsequent open and public OCBOS meetings, but because of the Board's rules

13 and procedures, as well as their past treatment of him, he fears being silenced

14 again and possibly punished for expressing himself.

15

CAUSES OF ACTION

16

FIRST CLAIM FOR RELIEF

17

[Against Each and Every Defendant]

18

(42 U.S.C. § 1983 - U.S. Const. Amend. I)

19

28. Plaintiff alleges and repleads all the allegations of the preceding

20 paragraphs of this Complaint and incorporates them here by reference.

21

29. Defendants have deprived Mr. Fitzgerald of his rights guaranteed by

22 the First Amendment and Fourteenth Amendment of the United States

23 Constitution.

24

30. At all times, Defendants have been, are presently, and will be, acting

25 under the color and authority of the laws of the United States and State of

26 California.

27

31. Orange County Rule of Procedure 46 ("Rule 46") and the Orange

28 County Board of Supervisor Speaker Guidelines ("Speaker Guideline"), which

8

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Pa)ge 10 of 16 Page ID #:10

1 prohibits "[e]ach person who addresses the Board" from "making personal,

2 impertinent, slanderous or profane remarks to any member of the Board, staff or

3 the general public," prohibits and regulates pure speech and other expressive

4 activity in open and public Orange County Board of Supervisor meetings

5 ("Speaker Guideline,,).2

6

32. Rule 46 and the Speaker Guideline discriminate among speech and

7 other expressive activity on the basis of content and/or viewpoint, prohibiting and

8 prescribing penalties for speech of particular content or viewpoint while speech of

9 different content, even if expressed in the same time, place, and manner, is not

10 proscribed or regulated.

11

33. Defendants lack either a compelling or substantial legitimate

12 government interest in regulating speech and expression in the manner

13 accomplished by Rule 46 and the Speaker Guideline and by the related actions

14 carried out against Mr. Fitzgerald at the July 27, 2010 and August 23, 2011

15 meetings.

16

34. Rule 46 and the Speaker Guideline are not sufficiently narrowly

17 tailored to serve any appropriate government interest, or are otherwise

18 unreasonable.

19

35. Rule 46 and the Speaker Guideline are unduly vague and ambiguous.

20 Neither provides adequate notice since they both fail to define key terms that

21 would indicate what speech may be permitted.

22

36. Defendants discriminated against Mr. Fitzgerald and arbitrarily and

23 unreasonably silenced him at an open and public Orange County Board of

24 Supervisors meeting because of the content and/or viewpoint of his speech.

25

37. By leaving in place, enforcing, and/or threatening to enforce Rule 46

26 and the Speaker Guideline, Defendants deprive Mr. Fitzgerald and others of rights

27 2 There are various speaker guidelines, Plaintiff only challenge the
28 guideline that proscribes certain remarks.

9

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Page 11 of 16 Page ID #:11

1 guaranteed by the First and Fourteenth Amendment of the United States

2 Constitution.

3

38. Defendants continue to chill the constitutional rights ofMr.

4 Fitzgerald, as well as other people who wish to speak out and criticize the actions

5 of public officials in Orange County, by enforcing or threatening to enforce a

6 vague, content-based, and/or viewpoint discriminatory rule and speaker guideline

7 that restrict protected expression at open and public Orange County Board of

8 Supervisor meetings.

9

39. All acts to discourage the speech Rule 46 and the Speaker Guidelines

10 prohibit therefore should be enjoined and its previous unconstitutional

11 enforcement remedied and nullified.

12

SECOND CLAIM FOR RELIEF

l3

[Against Each and Every Defendant]

14

(Free Speech Under Cal. Const. art. I § 2)

15

40. Plaintiffrealleges and repleads all the allegations ofthe preceding

16 paragraphs of this Complaint and incorporates them here by reference.

17

4l. . Defendants' rules, policies, and action, as alleged in this Complaint,

18 deprive Mr. Fitzgerald, and the general public desiring to speak at Orange County

19 Board of Supervisor meetings, of the right to free speech as guaranteed by Article

20 I, section 2 of the California Constitution.

21 PRAYER FOR RELIEF

22

l. Because of the actions alleged above, Mr. Fitzgerald seeks judgment

23 against Defendants as follows:

24

A. That Defendants be enjoined in perpetuity from enforcing Rule

25 46 and the Speaker Guidelines or from undertaking other acts to discourage the

26 speech the rule and guidelines unlawfully prohibit;

27 III

28 III

10

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Pa)ge 12 of 16 Page ID #:12

1

B. That Rule 46 and the Speaker Guideline and any attempts to

2 discourage the protected speech that the rule and guideline unlawfully prohibit be

3 declared null and void as unconstitutional in violation ofthe First and Fourteenth

4 Amendment ofthe United States Constitution and/or the Free Speech Clause of

5 the California Constitution;

6

C. Nominal damages be awarded;

7

D. For the costs of suit;

8

E. For an award of reasonable attorney fees to counsel for

9 Plaintiff;

10

F. For any other such relief that the Court considers just and

11 proper.

12

13 Dated: September 7,2011 14

ACLU FOUNDATION OF SOUTHERN CALIFORNIA

15

16

17

Atto eys for Plaintiff

William D. Fitzgerald

18

19

20

21

22

23

24

25

26

27

28

11

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Page 13 of 16 Page ID #:13
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY
This case has been assigned to District Judge James V. Selna and the assigned discovery Magistrate Judge is Marc Goldman. The case number on all documents filed with the Court should read as follows:
SACV11- 1355 JVS (MLGx)
Pursuant to General Order 05-07 of the United States District Court for the Central District of California, the Magistrate Judge has been designated to hear discovery related motions.
All discovery related motions should be noticed on the calendar of the Magistrate Judge

===============================================.
NOTICE TO COUNSEL

A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is filed, a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:

U Western Division
312 N. Spring St., Rm. G-8
Los Angeles, CA 90012

[X] Southern Division

U Eastern Division

411 West Fourth St., Rm. 1-053

3470 Twelfth St., Rm. 134

Santa Ana, CA 92701-4516

Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.

CV-18 (03/06)

NOTICE OF ASSIGNMENT TO UNITED STATES MAGISTRATE JUDGE FOR DISCOVERY

Case 8:11-cv-01355-JVS-MLiG Document 1 Filed 09/07/11 Pa\)ge 14 of 16 Page ID #:14
UNITED STATL~ DISTRICT COURT, CENTRAL DISTRICT (,·.··CALIFORNIA
CIVIL COVER SHEET

I (a) PLAINTIFFS (Check box ifyou are representing yourself 0) William D. Fitzgerald
.........

DEFENDANTS Orange County; Bill Campbell, in his official and individual capacities; John Moorlach, in his official and individual capacities; Janet Nguyen, in her official and individual capacities; DOES 1 through 10, in their official and individual capacities

(b) Attorneys (Firm Name, Address and Telephone Number. [fyou are representing Attorneys (If Known) yourself, provide same.)

Belinda Escobosa Helzer, ACLU Foundation of Southern California 2140 W. Chapman Avenue #209, Orange, CA 92868 (714) 450-3962 Additional Attorneys on Attached Page

II. BASIS OF JURISDICTION (place an X in one box only.)

III. CITIZENSHIP OF PRINCIPAL PARTIES - For Diversity Cases Only (Place an X in one box for piaintiffand one for defendant.)

o I U.S. Government Plaintiff

if3 Federal Question (U.S.
Government Not a Party)

Citizen onnis State

PTF DEF 01 01 Incorporated or Principal Place
of Business in this State

PTF DEF 04 04

02 U.S. Government Defendant o 4 Diversity (Indicate Citizenship Citizen of Another State
of Parties in Item Ill)

02 02 Incorporated and Principal Place 05 05 of Business in Another State

Citizen or Subject of a Foreign Country 03 03 Foreign Nation

06 06

IV. ORIGIN (Place an X in one box only.)

iiI Original
Proceeding

02 Removed from 03 Remanded from 04 Reinstated or 05 Transferred from another district (specify): 06 Multi- o 7 Appeal to District

State Court

Appellate Court

Reopened

District

Judge from

Litigation

Magistrate Judge

;? V. REQUESTED IN COMPLAINT: JURY DEMAND: 0 Yes No (Check 'Yes' only if demanded in complaint.)

CLASS ACTION under F.R.C.P. 23: 0 Yes liNo

o MONEY DEMANDED IN COMPLAINT: $

VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which ou are filing and write a brief statement ofcause. Do not cite 'urisdictional statutes unless diversity.)
42 U.S.C. §1983. This is an action against the County of Orange and its Board, agents, and employees for depriving Plaintiff of established federal and state constitutional and statutory rights

VII. NATURE OF SUIT (place an X in one box only.)

i3anks and Banking Commerce/lCC Rates/etc. 0460 Deportation 0470 Racketeer Influenced and Corrupt Organizations 0480 Consumer Credit 0490 Cable/Sat TV 0810 Selective Service 0850 Exchange 0875 Customer Challenge 12 USC 3410 0890 Other Statutory Actions 0891 Agricultural Act 0892 Economic Stabilization Act 0893 Environmental Matters 0894 Energy Allocation Act 0895 Freedom of Info. Act 0900 Appeal of Fee Determination Under Equal Access to Justice 095'0 Constitutionality of State Statutes

Negotiable Instrument Recovery of Overpayment & Enforcement of Judgment Medicare Act Recovery of Defaulted Student Loan (Excl. Veterans) Recovery of Overpayment of Veteran's Benefits Stockholders' Suits Other Contract
Tort Product Liability All Other Real Property

Assault, Libel & Slander Fed. Employers' Liability Marine Marine Product Liability Motor Vehicle Motor Vehicle Product Liability Other Personal Injury Personal InjuryMed Malpractice Personal InjuryProduct Liability Asbestos Personal Injury Product
Other Immigration Actions

. American with Disabilities Employment American with Disabilities -

Act LaborlM:gmt. Relations Labor/Mgmt. Reporting & Disclosure Act Railway Labor Act Other Labor
Drug Drug Related Seizure of Property 21 USC 881 Liquor Laws R.R. & Truck Airline Regs Occupational Safety !Health Other

-¥-SLl!.~~C2....V FOR OFFICE USE ONLY: c"eNumber: _ _

-=1-=--1_= _0 _1_3 _5_5_

AFTER COMPLETING THE FRONT SIDE OF FORM CV-71, COMPLETE THE INFORMATION REQUESTED BELOW.

CV-71 (05108)

CIVIL COVER SHEET

Page I of2

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Page 15 of 16 Page ID #:15
UNITED STATIc"fHSTRICT COURT, CENTRAL DISTRICT ('.,6ALIFORNIA
CIVIL COVER SHEET

VIII(a). IDENTICAL CASES: Has this action been previously filed in this court and dismissed, remanded or closed? &No 0 Yes Jfyes, list case number(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-'---_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
VIII(b). RELATED CASES: Have any cases been previously filed in this court that are related to the present case? riNo 0 Yes Ifyes, list case number(s): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-'--_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Civil cases are deemed related if a previously fded case and the present case: (Check all boxes that apply) 0 A Arise from the same or closely related transactions, happenings, or events; or
o B. Call for detennination of the same or substantially related or similar questions of law and fact; or
DC. For other reasons would entail substantial duplication aflabar if heard by different judges; or
o D. Involve the same patent, trademark or copyright, and one of the factors identified above in a, b or c also is present.

IX. VENUE: (When completing the following infonnation, use an additional sheet if necessary.)

(a) List the County in this District; California County outside of this District; State jf other than California; or Foreign Country, in which EACH named plaintiffresides. 0 Check here ifthegovemment, its agencies or employees is a named plaintiff. Ifthis box is checked, go to item (b).

County in this District:*

California County outside of this District; State, ifother than California; or Foreign Country

Orange County, California

(b) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH named defendant resides.

s! Check here if the government, its agencies or emolo ees is a named defendant. If this box is checked, gO to item(c).

County in this District;*
II Orange County, CA; Bill Campbell, Orange County, CA; John

IICalifornia County outside of this District; State, if other than California; or Foreign Country

IIMoorlach, Orange County, CA; Janet Nguyen, Orange County, CA

, (c) List the County in this District; California County outside of this District; State if other than California; or Foreign Country, in which EACH claim arose. N0 te: In landeondemnation ea es, use the Iocationofthe traet 0 fland'IOVOIved•

County in this District:*

California County outside of this District; State, if other than California; or Foreign Country

Orange County, California

* Los Angeles, Orange, San Bernardino, Riverside, Vento

'spo Counties

Note: In land condemnation cases use the location of the tra

f ' X. SIGNATURE OF ATIORNEY (OR PRO PER): -T~~~~~~~--------- Date September 2011

Notice to CounseJ/Parues: The CV-71 (IS-44) ..ci~il Cover Sheet and the infonnation contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law. This fonn, app~ved by the Judicial Conference of the United States in September 1974, is required pursuant to Local Rule 3-1 is not filed
but is used by the Clerk ofthe Court for the purpose ofstatistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet.)

Key to Statistical codes relating to Social Security Cases: Nature ofSuit Code Abbreviation Substantive Statement of Cause ofAction

861
862 863 863 864 865
CV-71 (05/08)

RIA
BL D1WC D1WW
ssm
RSI

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also, include claims by hospitals, skilled nursing faCilities, etc., for certification as providers of services under the pmgmm, (42 U,S,c. 1935FF(b»
All claims for "Black Lung" benefits under Title 4, Part 6, of the Federal Coal Mine Health and Safety Act of 1969. (30 u,S,c. 923)
All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus all claims filed for child's insurance benefits based on disability. (42 U.S.CO 405(g))
All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as amended. (42 U.S.C. 405(g»
All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended. (42 U,S,c. (g))

CIVIL COVER SHEET

Page 2 on

Case 8:11-cv-01355-JVS-MLG Document 1 Filed 09/07/11 Pa)ge 16 of 16 Page ID #:16

1

ATTACHMENT TO CIVIL COVER SHEET

2 Additional Counsel of Record for Plaintiff

3 LUCERO CRAVEZ (BAR NO. 273531) 1chavez@aclu-sc.org
4 2140 W. Chapman Avenue, Suite 209 Orange, CA 92868
5 Telepnone: (714) 450-3962
Facsllnile: (714) 450-3969 6
PETER J. ELIASBERG (BAR NO. 189110) 7 Email: I!e1iasberglalaclu-sc.org
ACLU FOUNDAnON OF SOUTHERN CALIFORNIA 8 1313 West Eighth Street
Los Angeles CA 90017 9 Telephone: (213) 977-9500
FacsImile: (213) 977-5297 10

11

12

13

14

15

16

17

18

19

20

. 21

22

23

24

25

26

27

28

 
 Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 1 of 14 Page ID #:326

1 BELINDA ESCOBOSA HELZER (BARNO. 214178)

bescobosahelzer~aclu -sc.org

2 BARDIS VAKlL'1(BARNO. 247783)
bvakili~aclu-sc.org
3 LUCER'O CHAVEZ (BAR NO. 273531)

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4 ACLU FOUNDATION OF SOUTHERN CALIFORNIA

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2100 N. Broadway., Suite 209 5 Santa Ana, California 92706
Teleph<;me: (714) 450-3962
PET~R 6 FacsImIle: (714) 543-5240
7 EmaIl: pJe.h)aOsLbeIArgS~BaEclRuG-s(cB.AorRg NO. 1891 10)

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8 ACLU FOUNDATlON OF SOUTHERN CALIFORNIA .

1313 West Eighth Street

9 Los Angeles CA 90017

Telephone: (213) 977-9500

10 FacSImile: (213) 977-5297

11 Attorneys for Plaintiff

12

UNITED STATES DISTRICT COURT

13

FOR THE CENTRAL DISTRICT OF CALIFORNIA

14

15 WILLIAM D. FITZGERALD, 16
Plaintiff, 17
vs. 18
ORANGE COUNTY; BILL 19 CAMPBELL, in his official and 20 individual capacities; JOHN
MOORLACH, in his official and 21 individual capacities; JANET 22 NGUYEN, in her official and
individual capacities; JAMES C. 23 PENA, in his official and individual
24 capacities,

) Case No.: SA CV 11-01355 NS (MLGx
) ) ) ) )
) SECOND AMENDED COMPLAINT ) FOR DECLARATORY AND ) INJUNCTIVE RELIEF AND NOMINA
DAMAGES
[Pursuant to 42 U.S.C. &1983 - for violation of the First and Fourteenth Amendments; Cal. Const. art. I § 2]

25 Defendants.
26
27
28

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 2 of 14 Page ID #:327

1

Plaintiff William D. Fitzgerald alleges as follows:

2

1. This action seeks declaratory and injunctive relief, as well as nominal

3 damages, to remedy the deprivation of Mr. Fitzgerald's federal and state

4 constitutional and statutory rights. When Mr. Fitzgerald criticized the Orange

5 County Board of Supervisors during open and public Orange County Board of

6 Supervisors meetings, Defendants silenced him, violating Mr. Fitzgerald's rights

7 to free speech and due process, as well as his right to petition the government for

8 redress of grievances.

9

JURISDICTION AND VENUE

10

2. This Court has jurisdiction over the federal civil rights claim under 28

11 U.S.C. §§ 1331 and 1343. Declaratory and/or injunctive relief is authorized under

12 28 U.S.C. §§2201 and 2202. This Court has supplemental jurisdiction over the

13 state law claims under 28 U.S.C. §1367(a).

14

3. Venue is proper in this Court under 28 U.S.C. § 1391(b) because

15 Defendants reside in, and all incidents, events, and occurrences giving rise to this

16 action occurred in, the County of Orange, California.

17

PARTIES

18

A. Plaintiff

19

4. PlaintiffWilliam D. Fitzgerald is now, and at all times mentioned in

20 this Complaint was, a resident of Orange County, California. Mr. Fitzgerald is one

21 of the Directors of Anaheim Homeowners for Maintaining our Environment

22 ("HOME"), a twenty-two-year-old unincorporated association of Orange County

23 homeowners who oppose government waste and corruption in order to protect

24 homeowners'rights. The majority of HOME's membership now consists of

25 elderly, long-time homeowners.

26

5. Mr. Fitzgerald is a military veteran who is deeply interested in local

27 politics. He has spoken at various meetings of the Orange County Board of

28 Supervisors during the portions of the meetings that are reserved for public

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 3 of 14 Page ID #:328

1 participation. Mr. Fitzgerald speaks at these meetings to inform elected officials

2 not only of his own opinion and facts on matters, but also of the opinions of

3 members of HOME who are hesitant to speak or too elderly to do so. As a veteran

4 who has fought to defend such important freedoms, he sees such participation as a

5 civic responsibility, which he takes very seriously, and desires to continue to

6 express his opinion on various matters of public concern during appropriate times

7 at Orange County Board of Supervisors meetings.

8

B. Defendants

9

6. Defendant Orange County ("County") is a political division of the

10 State of California. The cities and unincorporated areas of the County are divided

11 into five Supervisorial Districts, and each district elects a Supervisor to a four-year

12 term. Each Supervisor can serve two four-year terms. These five elected officials

13 comprise Defendant County's Board of Supervisors ("Board" or "OCBOS"). In

14 its legislative duties, the Board adopts ordinances, resolutions, and minute orders,

15 as well as Rules of Procedures that govern conduct at Board meetings.

16

7. Defendant Bill Campbell is a member of the Orange County Board of

17 Supervisors and is the Chair of the Board. He was first elected to the Board in

18 January 2003. He was elected Chairman of the Board by his colleagues for the

19 first time in January 2005, for a second term in January 2006, and most recently in

20 January 2011. Generally, the Chair acts as the presiding officer at all meetings of

21 the Board, charged with preserving order and decorum and decide all questions of

22 order. ORANGE COUNTY RULES OF PROCEDURE, RULE 9. 1 On information and

23 belief, Defendant Campbell is now, and at all times mentioned in this Complaint

24 was, a resident of Orange County, California.

25

8. Defendant John Moorlach is a member of the Orange County Board

26

27

1 Unless otherwise indicated, all references to "Rule" shall mean the

Orange County Rules of Procedure, which were adopted by the Orange County

28 Board of Supervisors on January 27,2009.

2

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 4 of 14 Page ID #:329

1 of Supervisors and is Vice Chair of the Board. He was first elected to the Board in

2 2006. In the absence, or inability to act, of the Chair, the Vice Chair shall have

3 and exercise all the powers and duties of the Chair. RULE 10. On information and

4 belief, Defendant Moorlach is now, and at all times mentioned in this complaint

5 was, a resident of Orange County, California.

6

9. Defendant Janet Nguyen is a member of the Orange County Board of

7 Supervisors. She was first elected to the Board in February 2007. Defendant

8 Nguyen was elected Chair of the Board in December 2009 and served as Chair

9 until December 2010. As Chair, Defendant Nguyen acted as the presiding officer

10 at all meetings of the Board, charged with preserving order and decorum and

11 decide all questions of order. RULE 9. On information and belief, Defendant

12 Nguyen is now, and at all times mentioned in this complaint was, a resident of

13 Orange County, California.

14

10. Defendant James C. Pena is a Deputy Sheriff employed by the

15 Sheriffs Department of Orange County. Defendant Pena serves as the

16 Sergeant-at-Arms responsible for maintaining order during Orange County Board

17 of Supervisor's meetings. Rule 41. Defendant Pena was present during OCBOS

18 meetings on July 27,2010 and August 23,2011 in his capacity as

19 Sergeant-at-Arms. On information and belief, Defendant Pena is now, and at all

20 times mentioned in this complaint was, a resident of Orange County, California.

21

11. [DELETED]

22

12. At all times mentioned in this Complaint, unless otherwise alleged,

23 each Defendant is an agent, employee, and/or co-conspirator of every other

24 Defendant, and in doing the acts alleged in this Complaint, was acting within the

25 course, scope, and authority of that agency or employment, and in furtherance of

26 the conspiracy to violate Plaintiffs constitutional and statutory rights, with the

27 knowledge and consent of each of the other Defendants.

28 III

3

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 5 of 14 Page ID #:330

1

FACTS

2

13. The California Legislature has found and declared that public

3 commissions, boards and councils, like the Orange County Board of Supervisors,

4 exist to aid in the conduct of the people's business, and their actions are intended

5 to be taken openly and their deliberations be conducted openly. See CAL. GOV'T

6 CODE § 54950. Accordingly, "[a]ll meetings of the legislative body of a local

7 agency shall be open and public, and all persons shall be permitted to attend any

8 meeting of the legislative body of a local agency." CAL. GOV'T CODE § 54953(a).

9 Moreover, "[e]very agenda for regular meetings shall provide an opportunity for

10 members of the public to directly address the legislative body on any item of

11 interest to the public, before or during the legislative body's consider of the item,

12 that is within the subject matter jurisdiction of the legislative body, provided that

13 no action shall be taken on any item not appearing on the agenda." CAL. GOV'T

14 CODE § 54954.3(a). "The legislative body of a local agency shall not prohibit

15 public criticism of the policies, procedures, programs, or services of the agency, or

16 of the acts or omissions of the legislative body." CAL. GOV'T CODE § 54954.3(c).

17 The local legislative body may, however, "limit[] the total amourit of time

18 allocated for public testimony on particular issues and for each individual

19 speaker." CAL. GOV'T CODE § 54954.3(b).

20

A. Meetings of the OCBOS - Generally.

21

14. At all relevant times, the Board's meetings are governed by the

22 Orange County Board of Supervisor's Rules of Procedure, which were adopted by

23 the Board on January 27,2009. The Board also issues "Speaker Guidelines,"

24 which are made available to provide guidance to the public who may wish to

25 address the Board at a public meeting.

26

15. The regular meetings of the Board are held each Tuesday beginning at

27 9:30 a.m. RULE 4. The order of business at regularly scheduled Board meetings

28 includes scheduled agenda items such as the Consent Calendar, Discussion

4

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 6 of 14 Page ID #:331

1 Calendar, and Public Hearings, as well as time for non-agenda items, which are

2 addressed during Public Comments. RULE 23. Board members also have an

3 opportunity to comment during "Board Comments," which is scheduled after

4 "Public Comments." Id.

5

16. All regular meetings of the Board are open to the public and the

6 public is provided the opportunity to participate in the meeting on items that are

7 either on the agenda or not. RULE 43.

8

17. "Members of the public who wish to discuss a consent, discussion, or

9 public hearing item should complete a speaker request form and deposit it with the

10 Clerk prior to the Clerk's reading of the agenda item. The Clerk will then advise

11 the Board of such request prior to the vote approving the item." RULE 44. "Any

12 individual member of the public may pull an item from the consent calendar for

13 discussion and separate vote, and may speak to each item for no longer than three

14 minutes prior to the vote on the item." Id.

15

18. "Under the Public Comments portion of the meeting, members of the

16 public [are] allowed to address the Board regarding any off-agenda item within the

17 subject matter jurisdiction of the Board. No action may be taken on off-agenda

18 items unless authorized by law. Comments under the Public Comments portion of

19 the meeting shall be limited to three (3) minutes per speaker, and twenty (20)

20 minutes for all comments, unless different time limits are set by the Chair." RULE

21 45.

22

19. Rule 46 of the Orange County Board of Supervisor's Rules of

23 Procedure, entitled "Addressing the Board," states in relevant part:

24

Each person who addresses the Board shall refrain from making

25

personal, impertinent, slanderous or profane remarks to any member

26

of the Board, staff or the general public. Any person who makes such

27

remarks, or who utters loud, threatening, personal or abusive

28

language, or engages in any other disorderly conduct which disrupts,

5

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 7 of 14 Page ID #:332

1

disturbs or otherwise impedes the orderly conduct of any Board

2

meeting shall, at the discretion of the Chair, or a majority of the

3

members, be barred from further addressing the Board at the meeting.

4

If such conduct thereafter continues so as to disrupt the orderly

5

conduct of the public's business, the Chair shall order the person

6

removed from the meeting room. Aggravated cases may be

7

prosecuted on appropriate complaint signed by the Chair, a member

8

of the Board or any other County representative.

9

20. Orange County Board of Supervisors Speaker Guidelines state in

10 pertinent part: "Each person who address the Board shall refrain from making

11 personal, impertinent, slanderous or profane remarks to any member of the Board,

12 staff or the general public."

13

21. The Orange County Sheriffs Department, or a representative

14 designated by the Sheriff, serves as the Board's Sergeant-at-Arms at Board

15 meetings and is required to carry out all orders given by the Chair for the purpose

16 of maintaining order and decorum at Board meetings. RULE 41.

17

B. July 27, 2010 Regular Meeting of the OCBOS.

18

22. On July 27, 2010, during the Public Comments portion of regularly

19 scheduled OCBOS meeting, the Board restricted Mr. Fitzgerald's right to speak

20 for his allotted three minutes because the Board disagreed with the content and/or

21 viewpoint ofMr. Fitzgerald's speech.

22

23. After approaching the podium, Mr. Fitzgerald, frustrated over the

23 property tax decisions of the County Appeals Board, criticized the Clerk of the

24 OCBOS who operates the Appeals Board for mismanagement, which he believed

25 resulted in unjust taxes to homeowners. Mr. Fitzgerald also criticized then-Chair

26 Defendant Nguyen for her then-recent statements that the Clerk was doing a

27 wonderful job running the Appeals Board. Less then two minutes into his

28 prepared statement, Mr. Fitzgerald then stated "it is apparent that [the Clerk of the

6

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 8 of 14 Page ID #:333

1 Board] is like the commander of a concentration camp. She is just following the

2 orders of her bosses." At that point, Defendant Nguyen and Defendant Moorlach

3 interrupted Mr. Fitzgerald and prevented him from completing his statement.

4

24. Defendants did not notify Mr. Fitzgerald that the Board may interrupt

5 public comments or for what reasons, nor did they inform him that any attempts to

6 continue his statement over their interruption would be considered disruptive.

7 Accordingly, Mr. Fitzgerald attempted to continue his speech. When Mr.

8 Fitzgerald asserted his right to finish his statement, Defendant Moorlach scolded

9 Mr. Fitzgerald for not being polite, informed him that they were "in a position of

10 authority" over him, and signaled to Defendant Pena, who considered Mr.

11 Fitzgerald's speech to be disruptive. In response to Defendant Moorlach's signal,

12 Defendant Pena approached Mr. Fitzgerald with the intent of silencing him or

13 removing him ifhe refused to be silent. Fearful of arrest and realizing that

14 continuing his prepared speech would not be tolerated, Mr. Fitzgerald left the

15 podium, with Defendant Pena following close behind to ensure he would not

16 return.

17

25. After silencing Mr. Fitzgerald, Defendant Moorlach went on to

18 criticize Mr. Fitzgerald, stating that he has no credibility and that, although he

19 believes in freedom of speech, he does not think that Mr. Fitzgerald's freedom of

20 speech allows Mr. Fitzgerald to "attack certain individuals." Defendant Moorlach

21 also expressed that "the five longest years of [his mother's life] were the five years

22 she spent in Nazi-occupied Netherlands" and that he believed Mr. Fitzgerald's

23 comments were inappropriate.

24

C. August 23, 2011 Regular Meeting of the OCBOS.

25

26. On August 23,2011, during the OCBOS public hearing on an Agenda

26 Item regarding redistricting, when speakers are supposed to be permitted to speak

27 for three minutes each, OCBOS refused to allow Mr. Fitzgerald to express his

28 opinions because of the content and/or viewpoint of his speech. After

7

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 9 of 14 Page ID #:334

1 approaching the podium, Mr. Fitzgerald attempted to express his opinion that the

2 County's redistricting plan would unfairly benefit the Vietnamese community and

3 dilute the voting power of Latinos in Orange County. Approximately two minutes

4 into his prepared statement, Mr. Fitzgerald highlighted Latino veterans and

5 criticized the County for what he believed to be a disrespect for the Latino

6 population. Mr. Fitzgerald also criticized some members of the Vietnamese

7 community, who spoke uninterrupted at that hearing, calling some "cowardly".

8

27. Defendant Campbell abruptly interrupted Mr. Fitzgerald before his

9 allotted three minutes had expired to unilaterally give the floor to Defendant

10 Nguyen, who proceeded to berate him purely for the content and/or viewpoint of

11 his speech, calling it "appalling" and "wrong" and indicating that Mr. Fitzgerald

12 was not allowed to criticize "members of any communities coming to this country,

13 this great country, for their freedom and democracy." Defendant Nguyen

14 repeatedly reminded Mr. Fitzgerald that the purpose of her interruption was not to

15 ask him a question, indicating that she had no interest in political dialogue with

16 him. Defendant Pena ordered Mr. Fitzgerald to "stand down". Defendants did not

17 notify Mr. Fitzgerald that the Board may interrupt public comments or for what

18 reasons, nor did they inform him that any attempts to continue his statement over

19 their interruption would be considered disruptive.

20

28. Later in the meeting, after Mr. Fitzgerald was silenced, told what

21 type of speech was not permitted, and escorted out, Defendant Nguyen stated that

22 divisive comments would not be tolerated by the OCBOS.

23

D. September 6, 2011 - Special Meetin2 of OCBOS.

24

29. Shortly after the August 23,2011 meeting, the Board called for a

25 special meeting to conduct a second public hearing on redistricting to be held on

26 September 6,2011 at 10:00 a.m. Members of the public were allowed to attend

27 and participate in this special meeting by speaking for up to three minutes.

28

30. Mr. Fitzgerald desired to participate in this special meeting, as well as

8

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 10 of 14 Page ID #:335

1 subsequent open and public OCBOS meetings, but because of the Board's rules 2 and procedures, as well as their past treatment of him, he fears being silenced

3 again and possibly punished for expressing himself.

4

CAUSES OF ACTION

5

FIRST CLAIM FOR RELIEF

6

[Against Each and Every Defendant]

7

(42 U.S.C. § 1983 - U.S. Const. Amend. I)

8

31. Plaintiff alleges and repleads all the allegations of the preceding

9 paragraphs of this Complaint and incorporates them here by reference.

10

32. Defendants have deprived Mr. Fitzgerald of his rights guaranteed by

11 the First Amendment and Fourteenth Amendment of the United States

12 Constitution.

13

33. At all times, Defendants have been, are presently, and will be, acting

14 under the color and authority of the laws of the United States and State of

15 California.

16

34. Orange County Rule of Procedure 46 ("Rule 46") and the Orange

17 County Board of Supervisor Speaker Guidelines ("Speaker Guideline"?, which 18 prohibits "[e]ach person who addresses the Board" from "making personal,

19 impertinent, slanderous or profane remarks to any member of the Board, staff or 20 the general public," prohibit and regulates pure speech and other expressive 21 activity in open and public Orange County Board of Supervisor meetings.

22

35. Rule 46 and the Speaker Guideline discriminate among speech and

23 other expressive activity on the basis of content and/or viewpoint, prohibiting and

24 prescribing penalties for speech of particular content or viewpoint while speech of

25 different content or viewpoint, even if expressed in the same time, place, and

26 manner, is not proscribed or regulated.

27 2 There are various speaker guidelines, Plaintiff only challenges the
28 guideline that proscribes certain remarks.

9

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 11 of 14 Page ID #:336

1

36. Defendants lack either a compelling or substantial legitimate

2 government interest in regulating speech and expression in the manner

3 accomplished by Rule 46 and the Speaker Guideline and by the related actions

4 carried out against Mr. Fitzgerald at the July 27,2010 and August 23,2011

5 meetings.

6

37. Rule 46 and the Speaker Guideline are not sufficiently narrowly

7 tailored to serve any appropriate government interest, or are otherwise

8 unreasonable.

9

38. Rule 46 and the Speaker Guideline are unduly vague and ambiguous.

10 Neither provides adequate notice since they both fail to define key terms that

11 would indicate what speech may be permitted.

12

39. Defendants discriminated against Mr. Fitzgerald and arbitrarily and

13 unreasonably restricted his speech at open and public Orange County Board of

14 Supervisors meetings because of the content and/or viewpoint of his speech.

15

40. Defendants' actions in interrupting Mr. Fitzgerald's speech to scold

16 him for the viewpoint he expressed chills the future speech of Mr. Fitzgerald and

17 others who wish to speak at OCBOS meetings.

18

41. By leaving in place, enforcing, and/or threatening to enforce Rule 46

19 and the Speaker Guideline, Defendants deprive Mr. Fitzgerald and others of rights

20 guaranteed by the First and Fourteenth Amendment of the United States

21 Constitution.

22

42. Defendants continue to chill the constitutional rights of Mr.

23 Fitzgerald, as well as other people who wish to speak out and criticize the actions

24 of public officials in Orange County, by enforcing or threatening to enforce a

25 vague, content-based, and/or viewpoint discriminatory rule and speaker guideline

26 that restrict protected expression at open and public Orange County Board of

27 Supervisor meetings.

28

43. All acts to restrict speech based on the viewpoint expressed or to chill

10

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 12 of 14 Page ID #:337

1 or discourage speech that Rule 46 and the Speaker Guideline prohibit therefore

2 should be enjoined, and their previous unconstitutional enforcement remedied and

3 nullified.

4

SECOND CLAIM FOR RELIEF

5

[Against Each and Every Defendant]

6

(Free Speech Under Cal. Const. art. I § 2)

7

44. Plaintiff realleges and repleads all the allegations of the preceding

8 paragraphs of this Complaint and incorporates them here by reference.

9

45. Defendants' rules, policies, and action, as alleged in this Complaint,

10 deprive Mr. Fitzgerald, and the general public desiring to speak at Orange County

11 Board of Supervisor meetings, of the right to free speech as guaranteed by Article

12 I, section 2 of the California Constitution.

13

THIRD CLAIM FOR RELIEF

14

[Against Each and Every Defendant]

15 (42 U.S.C. § 1983 - Procedural Due Process Under U.S. Const. Amend. XIV)

16

46. Plaintiff realleges and repleads all the allegations of the preceding

17 paragraphs of this Complaint and incorporates them here by reference.

18

47. Defendants' actions deprived Mr. Fitzgerald of his constitutionally

19 protected liberty interest in speaking at OCBOS meetings and in petitioning the

20 government for redress of his grievances without due process of law.

21

48. By arbitrarily silencing Mr. Fitzgerald and barring him further

22 audience before the Board at an open and public meeting without first having

23 given Mr. Fitzgerald notice of his allegedly disruptive conduct and a meaningful

24 opportunity to be heard, Defendants denied Mr. Fitzgerald due process of law in

25 violation of the Fourteenth Amendment to the United States Constitution.

26 III

27 III

28 III

11

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 13 of 14 Page ID #:338

1

FOURTH CLAIM FOR RELIEF

2

[Against Each and Every Defendant]

3

(Due Process Under Cal. Canst. art. I § 7)

4

49. Plaintiffrealleges and repleads all the allegations of the preceding

5 paragraphs of this Complaint and incorporates them here by reference.

6

50. Defendants' actions deprived Mr. Fitzgerald of his constitutionally

7 protected liberty interest in speaking at OCBOS meetings and in petitioning the

8 government for redress of his grievances without due process of law.

9

51. By arbitrarily silencing Mr. Fitzgerald and barring him further

10 audience before the Board at an open and public meeting without first having

11 given Mr. Fitzgerald notice of his allegedly disruptive conduct and a meaningful

12 opportunity to be heard, Defendants denied Mr. Fitzgerald due process oflaw in

13 violation of the Fourteenth Amendment to the United States Constitution.

14

PRAYER FOR RELIEF

15

1. Because of the actions alleged above, Mr. Fitzgerald seeks judgment

16 against Defendants as follows:

17

A. That Defendants be enjoined in perpetuity from enforcing Rule

18 46 and the Speaker Guidelines or from undertaking other acts to discourage the

19 speech the rule and guidelines unlawfully prohibit;

20

B. That Rule 46 and the Speaker Guideline and any attempts to

21 discourage the protected speech that the rule and guideline unlawfully prohibit be

22 declared null and void as unconstitutional in violation of the First and Fourteenth

23 Amendment of the United States Constitution and the California Constitution;

24

C. A declaration that Rule 46 and the Speaker Guideline is

25 unconstitutional as written and as enforced against Plaintiff, as well as a

26 declaration that Defendants' actions to suppress and discourage Plaintiff s speech

27 is unconstitutional;

28

D. Nominal damages be awarded;

12

Case 8:11-cv-01355-JVS-MLG Document 35 Filed 03/22/12 Page 14 of 14 Page ID #:339

1

E. For the costs of suit;

2

F. For an award of reasonable attorney fees to counsel for

3 Plaintiff;

4

G. For any other such relief that the Court considers just and

5 proper.

6

7 Dated: March 12,2012, 8 9 10

ACLU FOUNDATION

OF SOUTHERN CALIFORNIA

1£14- By:

Vakih

··11

Attorneys for Plaintiff

William D. Fitzgerald

12

13

14

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 Case 8:11-cv-01355-JVS-MLG Document 144 Filed 06/26/14 Page 1 of 9 Page ID #:3485

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
JUN 26 2014

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

WILLIAM D. FITZGERALD,

No. 12-56773

Plaintiff - Appellant, v. COUNTY OF ORANGE; et al.,
Defendants - Appellees.

D.C. No. 8:11-cv-01355-JVS-MLG

U.S. District Court for Central California, Santa Ana

MANDATE

RECEIVED
CLERK, U.S. DISTRICT COURT
6/26/14

MAT CENTRAL DISTRICT OF CALIFORNIA BY: ___________________ DEPUTY

The judgment of this Court, entered April 17, 2014, takes effect this date.

This constitutes the formal mandate of this Court issued pursuant to Rule

41(a) of the Federal Rules of Appellate Procedure.

Costs are taxed against the appellant in the amount of $77.80.

FOR THE COURT: Molly C. Dwyer Clerk of Court

Rebecca Lopez Deputy Clerk

Case 8:11-cv-01355-JVS-MLG Document 144 Filed 06/26/14 Page 2 of 9 Page ID #:3486
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

APR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM D. FITZGERALD,
Plaintiff - Appellant,
v.
COUNTY OF ORANGE; BILL CAMPBELL; JOHN MOORLACH; JANET NGUYEN; JAMES C. PENA, in their official and individual capacities,
Defendants - Appellees.

No. 12-56773 D.C. No. 8:11-cv-01355-JVSMLG
MEMORANDUM*

Appeal from the United States District Court for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted April 9, 2014 Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
William D. Fitzgerald appeals from the district court’s dismissal of his facial
challenge, and grant of summary judgment to Orange County and four members of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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the Orange County Board of Supervisors (“defendants” or “the county”) on his asapplied challenge, to Orange County Rule of Procedure 46 (“Rule 46 ”) and the Speaker Guidelines (“Guidelines”) that govern public speaking during Orange County Board of Supervisors meetings. Because the parties are familiar with the history of the case, we need not recount it here.
I The district court properly granted summary judgment on Fitzgerald’s asapplied challenge. Even viewing the facts in the light most favorable to Fitzgerald, which we must at this stage, the record shows that at both meetings, Fitzgerald departed the speaker’s podium of his own accord. Thus, he did not suffer injury at either meeting. We affirm the district court’s grant of partial summary judgment to the county on Fitzgerald’s federal and state constitutional as-applied claims.
II The district court erred in concluding that Fitzgerald lacked standing to pursue a facial challenge. “[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
2

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favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
First Amendment cases “raise unique standing considerations that tilt dramatically toward a finding of standing.” Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir. 2010) (internal alterations, citations, and quotation marks omitted). In this context, a plaintiff may make a so-called “pre-enforcement” challenge to a statute that generates “an actual and well-founded fear that the challenged statute will be enforced.” Libertarian Party of L.A. Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013). “In evaluating the genuineness of a claimed threat of prosecution, courts examine three factors: (1) whether the plaintiffs have articulated a concrete plan to violate the law in question, (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the challenged statute.” Id. at 870 (internal quotation marks omitted).
In applying these factors to this case, we conclude that Fitzgerald had standing to pursue his First Amendment facial challenges to Rule 46 and the Guidelines. First, as the district court correctly determined, Fitzgerald did have a concrete plan to violate both Rule 46 and the Guidelines. Second, Fitzgerald sufficiently established a credible threat of enforcement. Board Supervisors made
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comments that specifically targeted the content of Fitzgerald’s speech, and either explicitly stated or implied that Fitzgerald’s comments had gone beyond the bounds of free speech and acceptable behavior at a board meeting. In addition, an officer approached Fitzgerald at both meetings and told him to “stand down” and followed Fitzgerald out of the room at the first meeting to reiterate that his comments were inappropriate. These actions, taken collectively, constitute more than a simple allegation of subjective chill, Lopez, 630 F.3d at 787, or “the mere existence of a proscriptive statute,” Libertarian Party, 709 F.3d at 871 (internal quotation marks omitted).
Additionally, the Guidelines, which are posted on the website and available at public meetings, quote part of Rule 46 and thereby create a general and broad proscription similar to the online instructions posted by the California Secretary of State in Libertarian Party. 709 F.3d at 871 (“The Secretary has exercised her discretion to include this specific requirement in her instructions to candidates and to frame the requirement in absolute terms.”). In sum, Fitzgerald has met the burden of showing he has a concrete plan to violate Rule 46 and the Guidelines, and that there is a credible threat of enforcement against him, and has therefore
4

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established standing in the pre-enforcement First Amendment context.1 The district court erred in ruling otherwise.
III The district court also erred in holding that Fitzgerald’s claims were not ripe for review. “The constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III standing.” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010) (citing Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138-39 (9th Cir. 2000) (en banc)). Thus, the ripeness inquiry is “largely the same” as the one for standing. Id. Because the district court concluded Fitzgerald’s facial challenge was not ripe “for the same reasons” that he failed to establish standing, the court erred as to ripeness as well.
IV Concluding that the district court erred in its holdings that Fitzgerald lacked standing to assert a First Amendment challenge and that such a challenge was not ripe for review does not end our inquiry. Remaining is the question of the merits
1 Although Fitzgerald did not show a history of enforcement of Rule 46 and the Guidelines in Orange County, we conclude that this third factor is not dispositive in Fitzgerald’s case. Libertarian Party, 709 F.3d at 872 (stating that the “history of enforcement” factor is “not dispostive,” especially where “the challenged provisions have not been commonly and notoriously violated” (internal quotation marks omitted)).
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of the First Amendment facial challenge to Rule 46 and the Guidelines. If the record were undeveloped, we would remand that question for the district court to decide it in the first instance. However, here, we exercise our discretion to reach the merits of Fitzgerald's facial challenge because “the issue presented is purely one of law and . . . the pertinent record has been fully developed.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
Both parties agree that the controlling Ninth Circuit law was established by White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990), Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010) (en banc), and related cases. Under binding circuit law, once a government meeting is opened to public participation, it becomes a limited public forum. City of Norwalk, 900 F.2d at 1425. A government entity can regulate a limited public forum by placing reasonable restrictions on the time, place, and manner of speech. Norse, 629 F.3d at 975. It may also place restrictions on speech content, “as long as the content-based regulations are viewpoint neutral and enforced that way.” Id.
In City of Norwalk, we considered an ordinance almost identical to Rule 46 and the Guidelines. In that case, we sustained the ordinance against a First Amendment challenge because of the city’s interpretation that the ordinance’s sanctions could only be imposed “when someone making a proscribed remark is
6

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acting in a way that actually disturbs or impedes the meeting.” 900 F.2d at 1424. Upon the record and the representations of counsel, we adopted the city’s interpretation of the ordinance, citing Frisby v. Schultz, 487 U.S. 474 (1988). In Frisby, the Supreme Court relied on the representations of the town’s counsel as to the town’s interpretation of the statute. Id. at 480-84.
Here, the county’s counsel has represented that the county has and will continue to interpret Rule 46 and the Guidelines as the city did in City of Norwalk, namely that sanctions could only be imposed “when someone making a proscribed remark is acting in a way that actually disturbs or impedes the meeting.” Counsel further represented that the county’s understanding of “disturbance” was consistent with the construction we gave it in Norse, namely, that the disruption must be an “actual disruption” and not “any violation of . . . decorum” or a “constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption.” 629 F.3d at 976. Counsel’s representations are supported by the record, in which various government officials testified.
Given these binding concessions as to the County of Orange’s interpretation of Rule 46 and the Guidelines, we conclude–as we did in City of Norwalk–that Rule 46 and the Guidelines are not facially unconstitutional. Therefore, we affirm the judgment of the district court as to the facial challenge, albeit on other grounds.
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V In sum, we affirm the judgment of the district court as to the as-applied challenge. We hold that the district court erred in rejecting the facial challenge for lack of standing and ripeness. However, reaching the merits of the facial challenge, we conclude that Rule 46 and the Guidelines are not constitutionally overbroad given the restrictions and interpretations applied to the policy by the county. Therefore, we affirm the judgment of the district court. AFFIRMED.
8

 
 Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 1 of 19 Page ID #:1288

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

Present: The Honorable

James V. Selna

Karla J. Tunis Deputy Clerk

Attorneys Present for Plaintiffs:

Not Present

Not Present Court Reporter Attorneys Present for Defendants:
Not Present

Proceedings:

(IN CHAMBERS) ORDER Denying Plaintiff’s Motion for Partial Summary Judgment (fld 6-18-12) and Granting in Part and Denying in Part Defendants’ Motion for Summary Judgment or in the alternative Summary Adjudication (Fld 6-18-12)

Plaintiff William Fitzgerald (“Fitzgerald”) brings this 42 U.S.C. § 1983 action against Defendants Orange County, Bill Campbell (“Campbell”), John Moorlach (“Moorlach”), Janet Nguyen (“Nguyen”), and James C. Pena (“Pena”)1 (collectively, “Defendants”), alleging that Defendants violated Fitzgerald’s constitutional rights by denying his right to speak for an allotted time during two city council meetings. (Second Amended Compl. (“SAC”), Docket No. 35.) The parties have brought cross motions for summary judgment. (Defs.’ Mot., Docket No. 47; Pl.’s Mot., Docket No. 54.) Fitzgerald seeks partial judgment against Orange County, finding that the Orange County Board of Supervisors Rule of Procedure 46 (“Rule 46”) and the Orange County Board of Supervisors Speaker Guidelines (“Speaker Guidelines”) are facially unconstitutional. Defendants move for summary judgment against Fitzgerald on all claims and as to all Defendants. For the following reasons, Defendant’s Motion is GRANTED in part and DENIED in part, and Fitzgerald’s Motion is DENIED.

I. Factual Background
This cases arises out of Fitzgerald’s participation in two Orange County Board of Supervisors (“Board”) meetings on July 27, 2010 and August 23, 2011, respectively.

1 Fitzgerald has sued each individual in his or her

individual and official capacity.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

The Board regularly holds meetings, which are open to the public. (Pl.’s Statement of Uncontroverted Facts (“Pl.’s SUF”) ¶ 2, Docket No. 55-1.) Members of the public are invited to speak for up to three minutes per agenda item during a certain allotted time in the Board meeting. (Id. ¶¶ 3-4.) At all relevant times, Campbell, Moorlach, and Nguyen were Board Supervisors and agents of Defendant Orange County. (Id. at ¶ 1.) Pena was the Sergeant-at-Arms on duty during the meetings at issue. (Defs.’ SUF ¶ 2, Docket No. 49.)

The Board has adopted Rules of Procedure that govern Board meetings.2 (Pl.’s SUF ¶ 5.) Some of the Rules relate to the procedure for members of the public who wish to address the Board. (See Declaration of Bardis Vakili (“Vakili Decl.”), Ex. H, Docket No. 54-2.) For example, Rule 44 establishes the procedure for a civilian to request to speak, and it provides that no member of the public may speak for more than three minutes on a single item before a vote is taken. (Id.) Rule 45 provides that during the “public comment” section of the meeting, members of the public may address the Board on issues that are not on the agenda but which are in the subject matter jurisdiction of the Board. (Id.) Individual public comments are limited to three minutes, and the entire public comment session may be limited to 20 minutes total. (Id.) The Rule at issue in this case, Rule 46, provides in relevant part:

Each person who addresses the Board shall refrain from making personal, impertinent, slanderous or profane remarks to any member of the Board, staff or the general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in other disorderly conduct which disrupts, disturbs or otherwise impedes orderly conduct of any Board meeting shall, at the discretion of the Chair, or a majority of the members, be barred from further addressing the Board at the meeting. If such conduct thereafter continues so as to disrupt the orderly conduct of the public’s business, the Chair shall order the person removed from the

2 These Rules were promulgated pursuant to California

Government Code section 54953(a), commonly referred to as the

Brown Act, which requires local governing bodies to adopt rules

allowing for member of the public to address their governing

Board of Supervisors.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

meeting room.

(Id.) The Clerk of the Board monitors the time for public speakers, and the speakers can track their own time through a video display on the speaker’s podium that shows a clock with three minutes running. (Deposition of John Moorlach (“Moorlach Dep.”) 52:5-25, Docket No. 50-5.) Each of the Board members have a video display where they can request to speak by tapping an icon on the screen. (Id. at 57:10-21.) After the member hits the “request to speak” icon, a button appears that allows the member to indicate that the request is “urgent.” (Id.) Typically, if the Board member expresses an urgent desire to speak, the Chair will interrupt the speaker to allow the member to speak. (See Deposition of Darlene Bloom (“Bloom Dep.”) 45:8-18, Docket No. 50-5.) The Clerk of Board’s practice as the time keeper is to pause the speaker’s time while the Board member interjects with a question or comment. (Bloom Decl. ¶ 4, Docket No. 56; see Declaration of Susan Novak (“Novak Decl.”) ¶ 4, Docket No. 50-2.) The speaker’s time is stopped to ensure that the speaker receives the balance of his or her time after the Board member has finished the comment or question. (Bloom Decl. ¶ 4.)

The Speaker Guidelines are published in a one-page brochure that was created by the Clerk of the Board’s Office between 2005 and 2007. (Bloom Decl. ¶ 3; Novak Dep. 20:19-21:2, Docket No. 54-3.) The Speaker Guidelines are available to the public on the Clerk of the Board’s website, in the Clerk of the Board’s Office, and at Board meetings. (Novak Dep. 78:15-20; Pl.’s SUF ¶ 10.) Unlike the Rules of Procedure, the Speaker Guidelines are not formally adopted by the Board; they are intended to provide guidance to the public who wish to address the Board at a public meeting. (Bloom Decl. ¶ 3.)

Fitzgerald attended several Board meetings, two of which are at issue in this case. The Court has reviewed the videotapes of the portions of the meetings multiple times. (Bloom Decl., Ex. 1.) That evidence renders the Court’s following findings of fact necessarily uncontroverted.

During the July 27, 2010 meeting, Fitzgerald spoke during the public comments portion. Before Fitzgerald’s three minutes expired, Nguyen, the thenChair of the Board, attempted to interrupt Fitzgerald to yield the floor to Moorlach. (Bloom Decl., Ex. 1.) Moorlach tried to obtain Fitzgerald’s attention when

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

Fitzgerald continued to speak over Nguyen. (Id.) As Fitzgerald continued to speak over the Supervisors, Deputy Sheriff Pena approached him and advised him to “stand down” and said, “heed your voice.” (Id.) Fitzgerald briefly stopped speaking long enough for Moorlach to begin speaking, but then Fitzgerald interrupted Moorlach, stating “Alright, let me take the three minutes and then you can make your comments.” (Id.; Bloom Decl. ¶ 6.) After a brief exchange with Moorlach, Fitzgerald left the Board meeting. (Bloom Decl., Ex. 1.)

At the August 23, 2011 meeting, Fitzgerald requested to speak during the public hearing on redistricting. Before his three minutes expired, Campbell, the then-Chair of the Board, attempted to interrupt Fitzgerald to yield the floor to Nguyen. (Id.) Campbell told the Clerk of the Board to “stop his time” (referring to Fitzgerald) when Campbell attempted to yield the floor to Nguyen. (Id.) Fitzgerald’s time was stopped. (Novak Decl. ¶ 4.) Fitzgerald continued to speak over Campbell, at which point Nguyen tried to interrupt Fitzgerald. (Bloom Decl., Ex. 1.) Fitzgerald continued to speak over Nguyen. (Id.) Campbell advised Fitzgerald that “your time is being stopped right there.” (Id.) Fitzgerald stopped speaking long enough for Nguyen to begin her comment, but then he walked away from the podium and out of the meeting just seconds later. (Id.)

Fitzgerald filed a complaint against Defendants on September 7, 2011 seeking injunctive and declaratory relief. (Compl., Docket No. 1.) Fitzgerald filed his First Amended Complaint (“FAC”) on October 27, 2011. (FAC, Docket No. 22.) He filed his SAC on March 22, 2012. Fitzgerald has alleged violations of the First and Fourteenth Amendments of the United States Constitution, and Article I of the California Constitution.

II. Legal Standard

Summary judgment is appropriate when the record, read in the light most favorable to the non-moving party, indicates that “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32324 (1986). Material facts are those necessary to the proof or defense of a claim, and are determined by referring to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment,

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

“[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

The moving party has the initial burden of establishing the absence of a material fact for trial. Id. at 256. If the moving party satisfies its initial burden, the nonmoving party “may not rest upon the mere allegations or denials” of the moving party’s pleadings, but “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Furthermore, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 323. Thus, if the nonmoving party does not make a sufficient showing to establish the elements of its claims, the Court must grant the moving party’s motion.

Where the parties have made cross-motions for summary judgment, as they have in this case, the Court must consider each motion on its own merits. Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The Court will consider each party’s evidentiary showing, regardless of which motion the evidence was tendered under. See id. at 1137.

“In determining any motion for summary judgment or partial summary judgment, the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written evidence filed in opposition to the motion.” Local Rule 56-3.

III. Discussion

Fitzgerald asserts that Rule 46 and the Speaker Guidelines are unconstitutional under the First and Fourteenth Amendment, and Article I of the California Constitution. Defendants’ counter is threefold: they argue that (1) Fitzgerald does not have standing to challenge the constitutionality of Rule 46 and the Speaker Guidelines, the latter of which were neither promulgated nor officially adopted by the Board; (2) that even if Fitzgerald had standing, binding precedent

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

shows that Rule 46 is constitutional; and (3) that even if Rule 46 is unconstitutional, qualified immunity applies to the individual defendants. The Court addresses each argument in turn.

A. Standing to Challenge Rule 46 and the Speaker Guidelines

As a threshold matter, the Court must determine whether Fitzgerald has standing to challenge Rule 46 and the Speaker Guidelines.

This Court’s Article III jurisdiction over the case “depends on the existence of a ‘case or controversy.’” GTE California, Inc. v. FCC, 39 F.3d 940, 945 (9th Cir. 1994). A “case or controversy” exists only if a plaintiff has standing to bring the claim. Nelson v. NASA, 530 F.3d 865, 873 (9th Cir. 2008), rev’d on other grounds, Nat’l Aeronautics and Space Admin. v. Nelson, 131 S. Ct. 746 (2011). To have standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that their injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Nelson, 530 F.3d at 873 (9th Cir. 2008).

As the party seeking to invoke federal jurisdiction, Fitzgerald bears the burden of demonstrating that he has standing in this action. Lujan, 504 U.S. at 561. Fitzgerald must demonstrate standing “for each claim he seeks to press” and for “each form of relief sought.” Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). “The plaintiff bears the burden of proof to establish standing ‘with the manner and degree of evidence required at the successive stages of the litigation.’” Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 2009) (quoting Lujan, 504 U.S. at 561).

In this case, Defendants argue that Fitzgerald does not have standing to challenge the Rules of Procedure and Speaker Guidelines because (1) the Speaker Guidelines were not adopted by the Board, and thus they do not have any force or effect as Board regulations; and (2) Fitzgerald was not penalized under the Speaker Guidelines or the Rules of Procedure, and thus he did not suffer an injury in fact.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

The Court addresses each in turn.

Though the Speaker Guidelines were not formally ratified by the Board, they have been implicitly adopted as a custom or policy by virtue of their appearance as an official County document and their availability in Board-affiliated outlets. The Speaker Guidelines are printed on a brochure with the “County of Orange” seal, and the front page reads, “Orange County Board of Supervisors Speaker Guidelines.” (Vakili Decl., Ex. I.) Furthermore, the Speaker Guidelines are distributed through the Clerk of Board’s Office, and they are available at Board meetings and on the Clerk of Board’s website. By allowing the Speaker Guidelines to be printed on paper with the County’s seal, calling them the “Board of Supervisors” Speaker Guidelines, and having them available through several Board-affiliated outlets, the Board has implicitly adopted the Guidelines, or has at least given the impression that public participants must follow these Guidelines. That the Board never formally adopted the Guidelines does not insulate the Guidelines from constitutional challenge. Indeed, § 1983 authorizes suit “for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell v. Dept. of Social Servs., 436 U.S. 658, 690-91 (1978); see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305 (2000) (finding that a school district invocation policy was unconstitutional because it involved both “perceived and actual endorsement of religion”). Because the Guidelines are a government custom or would be reasonably perceived as such by the public, they are subject to challenge under § 1983.

Finding that both the Speaker Guidelines and the Rules of Procedure can be challenged in a § 1983 action, the Court considers whether Rule 46 or the Speaker Guidelines were invoked and whether Fitzgerald consequently suffered an “injury in fact.” The Court finds that genuine issues of material fact exist as to both of these questions, and thus the Court cannot determine as a matter of law whether Fitzgerald has standing to challenge Rule 46 or the Speaker Guidelines. To show he suffered an “injury in fact” pursuant to Rule 46, Fitzgerald must present evidence that he was effectively silenced or removed from the Board meeting as a result of engaging in disruptive speech or conduct. The parties present conflicting evidence on this point.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

As Defendants assert, neither Rule 46 nor the Speaker Guidelines were invoked by name during the Board meetings at issue. Furthermore, neither the Rules nor the Guidelines were invoked by their terms, as Fitzgerald was not told that he was being “disruptive” or that he was “impeding” the “orderly conduct” of the meeting. Fitzgerald was never told at either meeting that he would be precluded from finishing his remarks. In fact, before Fitzgerald left the August 2011 meeting, the Board Chair told the Clerk of the Board to stop Fitzgerald’s time and told Fitzgerald, “your time is being stopped right there,” which suggests that he would have been invited to use his remaining time after the Board member’s comment. While Fitzgerald contends that he understood Pena’s instruction to “stand down” to mean that he was not permitted to stay at the lectern to finish his statement (Pl.’s Statement of Genuine Issues of Material Fact ¶ 73), video footage of the July 27, 2010 meeting shows that Fitzgerald stayed at the lectern and continued to talk over the Board members after Pena admonished him. Moreover, Pena told Fitzgerald, “heed your voice,” immediately after he told him to “stand down,” and Fitzgerald replied, “not so loud?,” thus showing that he did not take Pena’s order to mean he had to leave the lectern. Fitzgerald also asserts that he left the meeting room “per Defendant Pena’s” instructions out of fear that he would be arrested (id. ¶ 75), but at the hearing on these Motions, Fitzgerald conceded that there was no evidence of an objective threat of arrest.

On the other hand, Fitzgerald has presented some evidence suggesting that he was effectively removed from the Board meetings at issue, and thus was unable to use the balance of his time to speak. First, the Deputy Daily Log for the July 27, 2010 meeting contains an entry which states, “Fitzgerald was escorted for [sic] the BOS meeting after making inappropriate comments about Clerk of the Board Darlene Bloom. After several attempts to get Fitzgerald to comply, Supervisor J. Moorlach requested he be escorted from the facility. Deputy Pena escorted him from the facility without further incident.” (Declaration of Lucero Chavez (“Chavez Decl.”), Ex. N, Docket No. 60-16) (emphasis supplied). This entry suggests that Fitzgerald was removed from the Board meeting as a result of his speech, and was thereby denied his remaining time. This evidence is sufficient to create a genuine dispute of fact as to whether Fitzgerald suffered an “injury in fact” at the July 2010 meeting. Second, in an internal email from Susan Novak dated August 25, 2011, she notes that the video of the meeting that day does not capture Fitzgerald’s exit. Describing the events, she states that Fitzgerald “keeps on ranting

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

[and] [Pena] tells him to stand down multiple times [and] when he doesn’t, he escorts him out of the room.” (Chavez Decl., Ex. O, Docket No. 60-17) (emphasis supplied). Like the Daily Log entry, the use of “escorts” creates a genuine dispute as to whether Fitzgerald was removed from the Board meeting. Given that Fitzgerald may have been removed as a result of disruptive speech, as suggested by the Log entry and the email, the substance of Rule 46 and the Speaker Guidelines could be implicated. Thus, there is a genuine dispute as to whether Fitzgerald suffered an “injury in fact” pursuant to Rule 46 and the Speaker Guidelines.

Accordingly, the Court cannot determine as a matter of law whether Fitzgerald has standing to challenge Rule 46 and the Speaker Guidelines as they were applied to him.

Fitzgerald appears to argue that even if he lacks standing to make an “as applied” challenge to Rule 46 and the Speaker Guidelines, he has standing to make a facial challenge. (Pl.’s Opp. Br. 8, Docket No. 60.) Fitzgerald cites the overbreadth doctrine, which provides that a litigant may challenge the constitutionality of a law even if it is constitutional as applied to that litigant, but a conceivable application of the law could be unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973) (“Litigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause another not before the court to refrain from constitutionally protected speech or expression.”). The overbreadth doctrine has been applied in the First Amendment realm to give it the “breathing space” it requires, and to avoid the chilling of protected speech. Id. The doctrine, however, is invoked sparingly, and courts must bear in mind that it is a narrow “exception to our traditional rules of practice.” Id. at 613-15 (internal citation omitted). A statute “may be invalidated on its face . . . only if the overbreadth is substantial.” Board of Airport Commrs. of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). While some law “may deter protected speech to some unknown extent, there comes a point where that effect–at best a prediction–cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.” Id. at 615.

In this case, the Court cannot determine whether Fitzgerald has standing to

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 10 of 19 Page ID #:1297

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

make a facial overbreadth challenge because there is a genuine dispute of fact as to whether Rule 46 or the Speaker Guidelines were applied to him. If they were applied to him, Fitzgerald may have standing to challenge the Rule and the Guidelines even if they were applied to him in a constitutional manner. Fitzgerald may be able to invoke the overbreadth doctrine to challenge the constitutionality of the Rule and the Guidelines as they could be applied to third parties not before the Court. See, e.g., Schad v. Borough of Mt. Emphraim, 452 U.S. 61, 66 (1981). On the other hand, if Rule 46 and the Guidelines were not applied to Fitzgerald, he would not have standing to bring an overbreadth challenge. Get Outdoors II, LLC v. San Diego, 506 F.3d 886, 891 (2007) (“Even when raising an overbreadth claim, however, we ask whether the plaintiff has suffered an injury in fact and can satisfactorily frame the issues on behalf of these non-parties. Without this bare minimum of standing, the overbreadth exception would nullify the notion of standing generally in First Amendment litigation.”) Accordingly, the Court cannot find as a matter of law that Fitzgerald lacks standing to challenge Rule 46 and the Speaker Guidelines.

Fitzgerald also alleges that his First Amendment rights were violated when he was interrupted during his statements to the Board. (SAC ¶¶ 23, 27, 40.) Fitzgerald asserts that his was interrupted because of the viewpoint he expressed and he claims that he suffered an “injury in fact” because the interruption chilled his future speech. (See id.) Because there is no genuine dispute that Fitzgerald was interrupted at the Board meetings, he has demonstrated an “injury in fact.” The interruption was fairly traceable to the Board members, and it is likely to be redressed by a favorable decision. Accordingly, Fitzgerald has standing to challenge the interruption as a First Amendment violation. However, as discussed infra, a momentary interruption during one’s statement to the Board does not amount to a constitutional violation. The Board routinely interrupts speakers to ask questions or make comments during public hearings on agenda items. (Moorlach Dep. 56:9-15.) Public participants do not possess a right to speak without interruption during Board meetings. Thus, while Fitzgerald has standing to challenge the interruptions as First Amendment violations, his claim is unavailing.

In sum, the Court cannot determine as a matter of law whether Fitzgerald has standing to make an “as applied” or facial challenge to Rule 46 or the Speaker Guidelines, but the Court finds that Fitzgerald has standing to challenge the

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 11 of 19 Page ID #:1298

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

interruptions of his statements to the Board as First Amendment violations.

B. Constitutionality of Rule 46 and the Speaker Guidelines

Assuming arguendo that Fitzgerald has standing to challenge Rule 46 and the Speaker Guidelines, the Court considers Fitzgerald’s facial and “as applied” challenges. The Court finds that the Rule and Guideline at issue are constitutional as applied to Fitzgerald; however, there are genuine disputes of fact bearing on the facial constitutionality of the Rule and the Guideline.

1. Facial Challenge

The Court cannot determine as a matter of law whether Rule 46 and the Speaker Guidelines are facially constitutional because there are conflicting facts regarding the County’s interpretation of Rule 46.

Defendant argue that the holding in White v. Norwalk, 900 F.2d 1421, 1424 (9th Cir. 1990), is dispositive on the facial constitutionality of Rule 46 because it found a materially identical regulation to be constitutional. In White, two plaintiffs sued Norwalk claiming that their First and Fourteenth Amendment rights were violated on three occasions when they had been removed from city council meetings while addressing the council. Id. at 1423. The plaintiffs made a facial constitutional challenge to a rule of decorum pertaining to addressing the city council during public meetings.3 Id. at 1423-24. The rule of decorum at issue provided:

Each person who addresses the Council shall not make personal, impertinent, slanderous or profane remarks to any member of the Council, staff or general public. Any person who makes such remarks, or who utters loud, threatening, personal or abusive language, or engages in any other disorderly conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any council meeting shall, at the

3 The plaintiffs challenged the ordinance solely on its face

and did not lay foundation for attacking it “as applied.” Id.

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 12 of 19 Page ID #:1299

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

discretion of the presiding officer or a majority of the Council, be barred from further audience before the Council during that meeting . . . .

Id. at 1424. The White plaintiffs argued that the proscription against “personal, impertinent, slanderous or profane remarks” was an impermissible content-based restriction that was void for vagueness and overbreadth. Id. at 1423-24. Norwalk proposed a far narrower construction than that set forth by plaintiffs, asserting that the ordinance did not permit discipline, removal or punishment of a person who merely utters “personal, impertinent, slanderous or profane” remarks. Rather, the ordinance provided that a speaker could be disciplined only if the speaker’s remarks or conduct actually disrupted, disturbed or otherwise impeded the orderly conduct of the Council meeting. Id. The court agreed that the ordinance was not fatally overbroad or vague because it was “readily susceptible” to Norwalk’s interpretation. Id. Thus, the court adopted Norwalk’s narrower construction. Id.

Although the White ordinance restricted the content of speech in a city council meeting, it was facially constitutional because it was viewpoint-neutral and proscribed only speech that was actually disruptive to city council meetings. See id. at 1425. City council meetings are limited public forums, id.; see also Norse v. Santa Cruz, 629 F.3d 966, 975 (9th Cir. 2010), and it is well established that content-based restrictions are permissible in such forums, provided that the limitation is viewpoint-neutral and reasonable in light of the purpose of the forum, see e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001); Cogswell v. Seattle, 347 F.3d 809, 815 (9th Cir. 2003). For example, a city council can limit discussion to agenda items, and may adopt certain rules of order and decorum. White, 900 F.2d at 1425, n. 3. In White, the speech limitations were reasonable because overly long, unduly repetitious, or irrelevant remarks could disrupt a meeting by preventing the city council from accomplishing its business in a reasonably efficient manner. Id. at 1425-26.

Essential to the White holding was the fact that Norwalk construed its ordinance to penalize a speaker only if the speaker’s speech or conduct was actually disruptive. Id. at 1424-25. That Rule 46 conceivably could be construed as narrowly as the White ordinance is not dispositive in this case. While courts can narrowly construe federal statutes to avoid finding unconstitutional overbreadth,

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 13 of 19 Page ID #:1300

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

they do not possess such authority with local ordinances. Adamian v. Jacobsen, 523 F.2d 929, 932 (9th Cir. 1975). Rather, courts must base their judgment of a statute’s facial validity “only on its meaning as authoritatively construed by a state court or agency.” Id. Thus, the White holding is not dispositive in this case unless the County shows that it construed Rule 46 to penalize a speaker only if the speaker’s speech or conduct actually disrupts a Board meeting. While Defendants presented some evidence that the County construed Rule 46 in a manner consistent with White, Fitzgerald has furnished evidence showing the County had a broader interpretation.

Defendants contend that the County construed Rule 46 consistent with the White interpretation. For instance, during her deposition Susan Novak (“Novak”), the County’s 30(b)(6) witness, was asked, “So if a member of the public in addressing the Board makes any personal, impertinent, slanderous, or profane remarks to any member of the Board, staff, or general public, would they–could they be deemed to be disorderly or disruptive?” (Novak Dep. 68:7-11.) She replied, “They could be, but that’s not enough information to determine that.” (Id. at 68: 14-15.) Novak’s answer suggests that under the County’s interpretation of Rule 46, speakers who make personal, impertinent, slanderous, or profane remarks are not per se disruptive or disorderly. That Ms. Novak required more information to make that determination suggests that the County construes the Rule narrowly to apply only to speech that is actually disruptive.

On the other hand, Fitzgerald presented evidence that County officials interpreted Rule 46 broadly, finding that speakers could violate the Rule without actually being disruptive. For example, at his deposition, Moorlach answered affirmatively when asked, “And so is it considered disorderly conduct if a person makes personal, impertinent, slanderous, or profane remarks?” (Chavez Decl., Ex. F. (“Moorlach Dep. II”) 71:5-8, Docket No. 60-8.) Pena was asked a substantively identical question during his deposition and answered affirmatively as well. (Chavez Decl., Ex. A (“Pena Dep.”) 81:1-8.) Further, when asked about his understanding of Rule 46, Pena agreed that speakers are not allowed to make “derogatory remarks about any member of the board, staff, or general public.” (Chavez Decl., Ex. A (“Pena Dep.”) 81:1-8.) Moorlach and Pena’s responses indicate that at least two County officials construe “personal, impertinent, slanderous, or profane remarks” to be disruptive per se, which is inconsistent with

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 14 of 19 Page ID #:1301

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

the White interpretation. Similarly, Nguyen was asked, “So if a person that was addressing this Board made personal, impertinent, slanderous, or profane remarks, would they be in violation of Rule 46?” Nguyen answered, “Yes, because you just read the rule.” (Chavez Decl., Ex. D. (“Nguyen Dep.”) 59:21-24, Docket No 606.) Nguyen’s response suggests that she construes Rule 46 to proscribe certain speech regardless of whether it is actually disruptive, which is also at odds with the White interpretation. These examples suggest that the County officials did not interpret Rule 46 as narrowly as Norwalk interpreted its ordinance in White.

The conflict between Novak’s testimony on one hand, and Moorlach, Nguyen, and Pena’s testimony on the other, creates a genuine dispute as to the County’s interpretation of Rule 46. Given these conflicting accounts, the Court cannot determine as a matter of law that the County adopted a narrow construction of Rule 46 that was consistent with the White interpretation. Accordingly, the Court cannot decide on summary judgment whether Rule 46 is constitutional on its face.

Similarly, the Court cannot determine whether the Speaker Guidelines are facially constitutional as a matter of law because they derive meaning from the interpretation of Rule 46. Specifically, the Speaker Guideline at issue is identical to the first clause in Rule 46, providing that speakers “shall refrain from personal, impertinent, slanderous, or profane remarks to any member of the Board, staff or the general public.” (Vakili Decl., Ex. I.) The Speaker Guidelines do not adopt or present any rules that are not included in the Rules of Procedure; rather, they are a layman’s summary of the Rules. (Novak Dep. 20:19-21:11.) It follows that the interpretation of Rule 46 necessarily informs the interpretation of the Speaker Guidelines. Because there is a genuine dispute as to the County’s interpretation of Rule 46, the meaning of the corresponding Speaker Guideline is likewise unclear. Thus, the Court cannot determine as a matter of law whether the Speaker Guidelines are facially unconstitutional.

Conflicting evidence of the County’s interpretation of Rule 46 also precludes summary judgment on Fitzgerald’s challenge under the California Constitution. The California Constitution guarantees that “[e]very person may freely speak, write and publish his or his sentiments on all subjects.” Cal. Const. art. I, § 2(a). The Brown Act allows cities to adopt “reasonable regulations” of

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 15 of 19 Page ID #:1302

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

public testimony at city council meetings, provided that the regulations do not “prohibit public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body.” Cal. Gov. Code § 54954.3(b)-(c). Given the conflict between Novak’s testimony and the testimony of Moorlach, Nguyen, and Pena, there is a genuine dispute of fact as to whether Rule 46 prohibits public criticism in violation of California law.

In sum, given the conflicting evidence of the County’s interpretation of Rule 46, the Court cannot determine as a matter of law whether Rule 46 and the Speaker Guidelines are facially constitutional. Nor can the Court determine whether they violate the California Constitution. Accordingly, summary judgment is inappropriate on these issues.

2. “As Applied” Challenge

Fitzgerald also argues that Rule 46 is unconstitutional as applied, though only Defendants move for summary judgment on this issue. Assuming arguendo that Rule 46 was applied to Fitzgerald, the Court finds that it was not applied in an unconstitutional manner. Rule 46 proscribes speech that is actually disruptive or that impedes the orderly conduct of a Board meeting. From the video footage of the Board meetings, it is clear that Fitzgerald’s conduct was constitutionally proscribable under Rule 46 because he actually impeded the orderly progression of the meeting. At both meetings, Fitzgerald was instructed several times to yield the floor to the Board members who sought to interject a question or respond to Fitzgerald’s comments. Fitzgerald repeatedly failed to yield and continued to speak over the Board members. By failing to recognize the Board members’ authority and by disregarding their legitimate instructions, Fitzgerald interfered with the Board’s ability to accomplish its business in a reasonably efficient manner. Such interference is precisely the type of conduct the White court contemplated in finding that city councils can adopt reasonable, viewpoint-neutral ordinances that proscribe actually disruptive speech and conduct. Further, as the White court noted, city councils may adopt rules to prevent speakers from interfering with the rights of other speakers. Here, Fitzgerald’s failure to yield the floor also interfered with the rights of other speakers, such as the Board members who tried to respond to Fitzgerald’s comments. In sum, the uncontroverted evidence shows that Fitzgerald’s failure to yield when instructed to do so amounted

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 16 of 19 Page ID #:1303

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

to disruptive conduct that is lawfully proscribed under Rule 46.

While Fitzgerald’s SAC seems to challenge Rule 46 under the California Constitution (SAC ¶¶ 45, 50, 51), Fitzgerald’s pleadings address only the facial constitutionality of Rule 46, (Pl.’s Mot. Br. 10-13; Pl.’s Reply Br. 7-8, Docket No. 64). That is, Fitzgerald does not present evidence showing that the Board violated his rights under the California Constitution. Though Fitzgerald correctly asserts that the California Constitution provides “more expansive free speech protection,” (Pl.’s Reply Br. 8), “article 1, section 2(a) tolerates content neutral speech restrictions commensurate with the First Amendment.” Rosenbaum v. San Francisco, 484 F.3d 1142, 1167 (9th Cir. 2007). Because the Court finds that Rule 46 is constitutional under the First Amendment as applied to Fitzgerald, Rule 46 is also constitutional as applied to Fitzgerald under the California Constitution. Furthermore, as discussed in the previous section, California law allows city councils to adopt “reasonable regulations” of public testimony at city council meetings. Cal. Gov. Code § 54954.3(b)-(c). Fitzgerald has not demonstrated that Rule 46 was unreasonable as applied to him.

Accordingly, to the extent Rule 46 was applied to Fitzgerald, it was done so constitutionally pursuant to the United States and California Constitutions.

C. Qualified Immunity

Fitzgerald’s § 1983 claim is unavailing because he has not shown that his federal rights were violated; however, even if could make this showing, the individual defendants are shielded by qualified immunity.

Section 1983 “provides a remedy to individuals whose constitutional rights have been violated by persons acting under color of state law.” Burke v. County of Alameda, 586 F.3d 725, 731 (9th Cir. 2009) (internal quotation marks and citation omitted). Thus, to prove a claim under § 1983, Fitzgerald must show that (1) some person deprived him of a federal right, and (2) the person who deprived him of that right “acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1990). As discussed supra section B.2, Fitzgerald was not deprived a federal right because Rule 46 was constitutionally applied to him (if it was applied to him at all). The Board could properly act within its removal power under Rule

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 17 of 19 Page ID #:1304

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

46 because Fitzgerald’s conduct was actually disruptive.4 Accordingly, Fitzgerald does not have a colorable § 1983 claim.

Even if Fitzgerald could make out a § 1983 claim, qualified immunity would apply to the individual defendants. Qualified immunity shields government officials from liability for § 1983 claims when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court summarized the purpose of qualified immunity:

Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal citations omitted).

Evaluating qualified immunity claims involves two considerations. Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson, 555 U.S. at 235-36. Courts must “consider whether a constitutional right was violated by the [official’s] conduct,” and must “ask whether the right was clearly established.” Graves v. City of Coeur D’Alene, 339 F.3d 828, 846 (9th Cir. 2003) (citing Saucier, 533 U.S. at 200-201). Although the Saucier Court insisted the first consideration must be resolved before the second, this ordering of the analytical steps is no longer mandatory. Pearson, 555 U.S. 235-36. Courts should address the two prongs in the sequence that is most sensible given the circumstances of the case. Id.

A right is “clearly established” if a reasonable government official would

4 There is no evidence that any of the individual defendants

caused harm to Fitzgerald by the mere existence of Rule 46 and

the Speaker Guidelines. There is no vicarious liability under §

1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 18 of 19 Page ID #:1305

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

know that his or her conduct was unlawful in that particular situation. Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1129 (9th Cir. 2002). Whether a federal right is “clearly established” is a question of law that is decided, in the first instance, by reference to case law of the United States Supreme Court and of the Circuit in which the district court sits. Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (“The Supreme Court has provided little guidance as to where courts should look to determine whether a particular right was clearly established at the time of the injury. . . . In the Ninth Circuit, we begin our inquiry by looking to binding precedent.”). Thus, when a right is clearly established by Supreme Court or Ninth Circuit case law, this Court need not, and should not, be guided by the case law of other judicial Circuits that may not be in accord. Id. (“If the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end.”).

In this case, the individual defendants did not violate Fitzgerald’s federal rights because they did not unlawfully impinge on his right to free speech. By speaking in a limited public forum, Fitzgerald was lawfully subject to certain rules of decorum as well as the Board’s general practices for holding meetings. For instance, the Board occasionally interrupts speakers to interject comments or questions. This practice does not abridge a speaker’s rights because speakers do not possess a right to speak without interruption in a city council meeting. Cities may impose time limitations and content-based (but viewpoint-neutral) restrictions on speech in city council meetings without running afoul of the First Amendment. As discussed supra section B.1, rules proscribing speech are permissible provided that they are limited to speech that is actually disruptive. In this case, uncontroverted evidence shows that Fitzgerald actually disrupted the Board meetings by failing to yield the floor when instructed to do so. Moreover, the content of his remarks, which Fitzgerald argues is entitled to constitutional protection, is separate and apart from his refusal to yield the floor. Said another way, protected speech does not give the speaker the right to use such speech in a manner that is disruptive. Thus, to the extent Fitzgerald was removed from the meetings pursuant to Rule 46 or the Speaker Guidelines, the removal was constitutional.

Even if Fitzgerald’s constitutional rights were violated when he was supposedly removed from the Board meetings, his right to continue speaking

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Case 8:11-cv-01355-JVS-MLG Document 67 Filed 07/20/12 Page 19 of 19 Page ID #:1306

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. SACV 11-01355-JVS (MLGx)

Title

William D. Fitzgerald v. Orange County, et al.

Date July 20, 2012

notwithstanding his disruptive behavior was not “clearly established.” The White opinion makes clear that city councils can institute rules of decorum and can remove speakers who are actually disruptive. Fitzgerald has offered no case law to the contrary. Thus, if an unfettered right to speak for one’s allotted time in a city council meeting existed, it certainly was not “clearly established.” A reasonable supervisor would not have understood that the First Amendment affords a right to be disruptive.

For these reasons, the individual defendants are shielded by qualified immunity. Accordingly, they are not liable on Fitzgerald’s claims, and they are entitled to judgment as a matter of law.

IV. Conclusion

For the foregoing reasons, Defendants’ Motion is GRANTED as to (1) all claims against the individual defendants; and (2) the federal and state constitutional challenges “as applied” to Fitzgerald. Defendants’ Motion is DENIED as to the facial constitutional challenges to Rule 46 and the Speaker Guidelines under the United States Constitution and the California Constitution. Fitzgerald’s Motion is DENIED.

IT IS SO ORDERED.

Initials of Preparer

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 Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 1 of 14
(MLGx),CLOSED,DISCOVERY
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Southern Division − Santa Ana)
CIVIL DOCKET FOR CASE #: 8:11−cv−01355−JVS−MLG

William D Fitzgerald v. Orange County et al Assigned to: Judge James V. Selna Referred to: Magistrate Judge Marc L. Goldman Case in other court: 9th CCA, 12−56773 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/07/2011 Date Terminated: 09/21/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

William D Fitzgerald

represented by Bardis Vakili ACLU of Southern California 2100 N. Broadway Suite 209 Santa Ana, CA 92706 714−450−3962 Fax: 714−543−5240 Email: bvakili@aclu−sc.org ATTORNEY TO BE NOTICED

Belinda Escobosa Helzer ACLU Foundation of Southern California 1851 East First St Suite 450 Santa Ana, CA 92705 714−450−3962 Fax: 714−543−5240 Email: bescobosahelzer@aclu−sc.org ATTORNEY TO BE NOTICED

Lucero Chavez ACLU Foundation of Southern California 2100 N. Broadway, Suite 209 Santa Ana, CA 92706 714−450−3962 Fax: 714−543−5240 Email: LChavez@aclu−sc.org ATTORNEY TO BE NOTICED

Peter J Eliasberg ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213−977−9500 Fax: 213−977−5297 Email: peliasberg@aclu−sc.org ATTORNEY TO BE NOTICED

V. Defendant Orange County

represented by Elizabeth Anne Pejeau Orange County Counsel 333 West Santa Ana Boulevard Suite 407 Box 1379 Santa Ana, CA 92702−1379 714−834−3300 Fax: 714−834−2359 Email: liz.pejeau@coco.ocgov.com ATTORNEY TO BE NOTICED

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 2 of 14

Defendant Bill Campbell in his official and individual capacities TERMINATED: 08/17/2012
Defendant John Moorlach in his official and individual capacities
Defendant Janet Nguyen in her official and individual capacities
Defendant Does 1 through 10, in their official and individual capacities TERMINATED: 03/22/2012 Defendant James C Pena in his official and individual capacities,

James Clement Harman Office Of The Counsel County Of Orange 333 West Santa Ana Blvd Suite 407 P O Box 1379 Santa Ana, CA 92702−1379 714−834−5257 Email: james.harman@coco.ocgov.com TERMINATED: 06/07/2012 ATTORNEY TO BE NOTICED
Wendy J Phillips Orange County Counsel 333 W Santa Ana Blvd Suite 407 P O Box 1379 Santa Ana, CA 92702−1379 714−834−3300 Fax: 714−834−2359 Email: wendy.phillips@coco.ocgov.com ATTORNEY TO BE NOTICED
represented by James Clement Harman (See above for address) ATTORNEY TO BE NOTICED
Wendy J Phillips (See above for address) ATTORNEY TO BE NOTICED
represented by James Clement Harman (See above for address) ATTORNEY TO BE NOTICED
Wendy J Phillips (See above for address) ATTORNEY TO BE NOTICED
represented by James Clement Harman (See above for address) ATTORNEY TO BE NOTICED
Wendy J Phillips (See above for address) ATTORNEY TO BE NOTICED
represented by Wendy J Phillips (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 3 of 14
James Clement Harman (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/07/2011 09/07/2011 09/07/2011 09/07/2011 09/08/2011 09/08/2011 09/08/2011 09/08/2011 09/09/2011
09/09/2011
09/12/2011

# Docket Text
1 COMPLAINT against Defendants Bill Campbell, Does, John Moorlach, Janet Nguyen and Orange County. Case assigned to Judge James V. Selna for all further proceedings. Discovery referred to Magistrate Judge Marc L. Goldman.(Filing fee $ 350 Paid). Filed by Plaintiff William D Fitzgerald.(lwag) (Entered: 09/09/2011)
21 DAY Summons Issued re Complaint − (Discovery), Complaint − (Discovery) 1 as to Defendants Bill Campbell, John Moorlach, Janet Nguyen and Orange County. (lwag) (Entered: 09/09/2011)
2 CERTIFICATION and Notice of Interested Parties filed by Plaintiff William D Fitzgerald. (lwag) (Entered: 09/09/2011)
3 NOTICE of Related Case(s) filed by Plaintiff William D Fitzgerald. Related Case(s): None. (lwag) (Entered: 09/09/2011)
4 EX PARTE APPLICATION for Temporary Restraining Order, EX PARTE APPLICATION for Order to Show Cause re: Preliminary Injunction filed by plaintiff William D Fitzgerald. Lodged proposed order.(twdb) (Entered: 09/09/2011)
5 DECLARATION of Bardis Vakili in support of EX PARTE APPLICATION for Temporary Restraining Order, EX PARTE APPLICATION for Order to Show Cause re: Preliminary Injunction 4 filed by Plaintiff William D Fitzgerald. (twdb) (Entered: 09/09/2011)
6 MEMORANDUM in Support of EX PARTE APPLICATION for Temporary Restraining Order, EX PARTE APPLICATION for Order to Show Cause re: Preliminary Injunction 4 filed by Plaintiff William D Fitzgerald. (twdb) (Entered: 09/09/2011)
7 DECLARATION of William D. Fitzgerald in support of EX PARTE APPLICATION for Temporary Restraining Order, EX PARTE APPLICATION for Order to Show Cause re: Preliminary Injunction 4 filed by Plaintiff William D Fitzgerald. (twdb) (Entered: 09/09/2011)
8 INITIAL ORDER FOLLOWING FILING OF COMPLAINT ASSIGNED TO JUDGE SELNA by Judge James V. Selna, Important Notice: The Court posts tentative law and motions rulings to the internet. Please see Section P, below. COUNSEL FOR PLAINTIFF SHALL SERVE THIS ORDER ON ALL DEFENDANTS AND/OR THEIR COUNSEL ALONG WITH THE SUMMONS AND COMPLAINT, OR IF THAT IS NOT PRACTICABLE AS SOON AS POSSIBLE THEREAFTER. IF THIS CASE WAS ASSIGNED TO THIS COURT AFTER BEING REMOVED FROM STATE COURT, THE DEFENDANT WHO REMOVED THE CASE SHALL SERVE THIS ORDER ON ALL OTHER PARTIES. (See document for details.) IT IS SO ORDERED. (rla) (Entered: 09/09/2011)
9 Opposition re: EX PARTE APPLICATION for Temporary Restraining Order EX PARTE APPLICATION for Order to Show Cause re: Preliminary Injunction 4 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, Plaintiff William D Fitzgerald. (Attachments: # 1 Declaration Declaration of Darleen Bloom in Support of Opposition to Ex−Parte Application for TRO, # 2 Declaration Declaration of Susan Novak in Support of Opposition to Ex−Parte Application for TRO, # 3 Declaration Declaration of James C. Pena in Support of Opposition to Ex−Parte Application for TRO, # 4 Exhibit Notice of Manual Filing)(Phillips, Wendy) (Entered: 09/09/2011)
10 PROOF OF SERVICE Executed by Plaintiff William D Fitzgerald, upon Defendant All Defendants. Service of the Summons and Complaint were executed upon Ruben Aguilar, empoyee at the Clerk of the Board in compliance with statute not specified by personal service. Original Summons NOT returned. (Escobosa Helzer, Belinda) (Entered: 09/12/2011)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 4 of 14

09/12/2011 09/12/2011 09/12/2011
09/12/2011 09/28/2011 10/04/2011
10/05/2011 10/07/2011 10/11/2011
10/11/2011 10/27/2011 10/27/2011

11 PROOF OF SERVICE filed by Plaintiff William D Fitzgerald, re Declaration (Motion related) 5 , EX PARTE APPLICATION for Temporary Restraining Order EX PARTE APPLICATION for Order to Show Cause re: Preliminary Injunction 4 , Memorandum in Support of Motion 6 , Declaration (Motion related) 7 Personally served on 09/08/2011. (Escobosa Helzer, Belinda) (Entered: 09/12/2011)
12 PROOF OF SERVICE filed by Plaintiff William D Fitzgerald, re Order,, 8 Electronically served on 09/12/11. (Escobosa Helzer, Belinda) (Entered: 09/12/2011)
13 VOLUMINOUS DOCUMENT RE: EXHIBIT 1 to Declaration of Darlene Bloom in Support of The Orange County Defendants' Opposition to Plaintiff's Ex Parte Application for Temporary Restraining Order [A DVD Video Recording of Portions of the Orange County Board of Supervisors Meetings of July 27, 2010 & August 23, 2011] filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen and Orange County. (Attachments: # 1 Voluminous−CD Exhibit)(lwag) (Entered: 09/13/2011)
14 DENIED BY ORDER OF THE COURT by Judge James V. Selna: Denying 4 Ex Parte Application for TRO; Denying 4 Ex Parte Application for Order to Show Cause. (rla) (Entered: 09/14/2011)
15 NOTICE of Change of Attorney Information for attorney Bardis Vakili counsel for Plaintiff William D Fitzgerald. Adding Bardis Vakili as attorney as counsel of record for William D. Fitzgerald for the reason indicated in the G−06 Notice. Filed by Plaintiff William D. Fitzgerald (Vakili, Bardis) (Entered: 09/28/2011)
16 ORDER by Judge James V. Selna, SETTING RULE 26(f) SCHEDULING CONFERENCE for 12/19/2011 11:30 AM: If plaintiff has not already served the complaint (or any amendment thereto) on all defendants, plaintiff shall promptly do so and shall file proofs of service within three days thereafter. Defendants also shall timely serve and file their responsive pleadings and file proofs of service within three days thereafter. The conference will be held pursuant to Fed.R.Civ.P., Rule 16(b). The parties are reminded of their obligations under Fed.R.Civ.P., Rule 26(a)(1) to disclose information (without awaiting a discovery request) and under Rule 26(f) to confer on a discovery plan not later than twenty−one (21) days prior to the scheduling conference and to file a Joint Rule 26(f) Report not later than fourteen (14) days after they confer. Failure to comply with the following requirements or to cooperate in the preparation of the Joint Rule 26(f) Report may lead to the imposition of sanctions. (See document for further details.) (rla) (Entered: 10/05/2011)
17 STIPULATION Extending Time to Answer the complaint as to Janet Nguyen answer now due 10/7/2011; Bill Campbell answer now due 10/7/2011; John Moorlach answer now due 10/7/2011; Orange County answer now due 10/7/2011, filed by Defendants Janet Nguyen; Bill Campbell; John Moorlach; Orange County.(Phillips, Wendy) (Entered: 10/05/2011)
18 ANSWER to Complaint − (Discovery), Complaint − (Discovery) 1 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County.(Phillips, Wendy) (Entered: 10/07/2011)
19 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Answer to Complaint (Discovery) 18 . The following error(s) was found: Local Rule 7.1−1 No Certification of Interested Parties and or no copies. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (nbo) (Entered: 10/11/2011)
20 Certification and Notice of Interested Parties filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, (Phillips, Wendy) (Entered: 10/11/2011)
21 First APPLICATION to Amend Complaint − (Discovery), Complaint − (Discovery) 1 filed by Plaintiff William D Fitzgerald. (Escobosa Helzer, Belinda) (Entered: 10/27/2011)
22 FIRST AMENDED COMPLAINT against defendants Bill Campbell, Does, John Moorlach, Janet Nguyen, Orange County amending Complaint 1 ; filed by plaintiff William D Fitzgerald. (rla) (Entered: 10/28/2011)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 5 of 14

11/04/2011 11/10/2011 11/22/2011 12/12/2011 12/14/2011 12/19/2011
12/19/2011 12/22/2011
12/22/2011 12/22/2011
03/12/2012 03/21/2012
03/22/2012

23 Notice of Withdrawal of Application to Amend/Correct 21 filed by Plaintiff William D Fitzgerald. (Vakili, Bardis) (Entered: 11/04/2011)
24 ANSWER to Amended Complaint 22 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County.(Phillips, Wendy) (Entered: 11/10/2011)
25 NOTICE of Change of Attorney Information for attorney Belinda Escobosa Helzer counsel for Plaintiff William D Fitzgerald. Changing Address to 2100 N. Broadway, Suite 209, Santa Ana, CA 92706. Changing Fax Number to (714) 543−5240. Filed by Plaintiff William D. Fitzgerald (Escobosa Helzer, Belinda) (Entered: 11/22/2011)
26 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 5, filed by Plaintiff William D Fitzgerald.. (Attachments: # 1 Exhibit Presumptive Schedule)(Vakili, Bardis) (Entered: 12/12/2011)
27 MINUTE ORDER IN CHAMBERS by Judge James V. Selna: ADVANCING TIME OF SCHEDULING CONFERENCE: Scheduling Conference reset for 12/19/2011 10:30 AM before Judge James V. Selna. (rla) (Entered: 12/14/2011)
28 MINUTES OF Scheduling Conference held before Judge James V. Selna, 2012. The Court sets the remaining case management dates with the agreement of counsel as follows: Discovery cut−off 4/16/2012. Motions due by 5/7/2012. Motions in Limine to be filed by 7/9/2012. Final Pretrial Conference set for 8/6/2012 11:00 AM. Jury Trial set for 8/21/2012 08:30 AM. (See document for further details.) Court Reporter: Sharon Seffens. (rla) (Entered: 12/22/2011)
30 AMENDED Scheduling Conference MINUTES held before Judge James V. Selna re: Scheduling Conference 28 . [CORRECTED ON 12/22/11] COURT Trial: August 21, 2012 at 8:30 a.m. (rla) (Entered: 12/27/2011)
29 STRICKEN PURSUANT TO IN CHAMBERS ORDER, RE: ORDER by Judge James V. Selna, I. ORDER FOR JURY TRIAL SETTING DATES FOR: Discovery Cut−Off: April 16, 2012; Pre−Trial Conference: August 6, 2012 at 11:00 A.M.; Trial: August 21, 2012 at 8:30 A.M. II. Order for Preparationfor JURY TRIAL. III. Order Governing Attorney & Party Conduct at Trial. All motions to join other parties or to amend the pleadings shall be filed and served within sixty (60) days of the date of this order and noticed for hearing within ninety (90) days hereof. All unserved parties shall be dismissed no later than the date set for the Final Pre−Trial Conference. (See document for further details.) (rla) Modified on 12/27/2011 (rla). (Entered: 12/22/2011)
31 AMENDED (IN CHAMBERS) Order Striking Document by Judge James V. Selna [CORRECTED ON 12/22/11] The Court hereby ORDERS the Order for Jury Trial (Docket #29) STRICKEN as issued in error. (rla) (Entered: 12/27/2011)
32 ORDER by Judge James V. Selna,I. ORDER FOR COURT TRIAL SETTING DATES FOR: Discovery Cut−Off: APRIL 16, 2012 Pre−Trial Conference: AUGUST 6, 2012 at 11:00 A.M. Trial: AUGUST 21, 2012 at 8:30 A.M. II. Order for Preparation forCOURT TRIAL, Proposed Findings of Fact & Conclusions of Law, and Scheduling; III. Order Governing Attorney and Party Conduct at Trial. (rla) (Entered: 12/27/2011)
33 Joint STIPULATION to AMEND Amended Complaint 22 filed by Plaintiff William D Fitzgerald. (Attachments: # 1 Proposed Order, # 2 Second Amended Complaint, # 3 Summons)(Vakili, Bardis) (Entered: 03/12/2012)
34 ORDER by Judge James V. Selna: granting 21 Application to Amend/Correct. The Court grants Plaintiff leave to file a Second Amended Complaint andexcuses Defendants from filing a response to supercede Defendants Answer toFirst Amended Complaint for Declarative and Injunctive Relief and NominalDamages. A copy of the Second Amended Complaint shall be manually filedwithin seven days. (twdb) (Entered: 03/21/2012)
35 SECOND AMENDED COMPLAINT against defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena; Party Does terminated amending first Amended Complaint 22 ,filed by plaintiff William D Fitzgerald (twdb) (Additional attachment(s) added on 4/12/2012: # 1 SUMMONS ISSUED) (rla). (Entered: 03/23/2012)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 6 of 14

04/11/2012 04/12/2012 04/16/2012 04/18/2012 04/18/2012
04/19/2012 04/20/2012 05/11/2012
05/15/2012
05/24/2012 05/31/2012
06/07/2012

21 DAY Summons Issued re Amended Complaint 35 as to defendants. (rla) (Entered: 04/12/2012)
36 REQUEST for ADR Procedure No. 1 filed. Parties request to Appear Before Magistrate Judge for settlement proceedings. Filed by Plaintiff William D Fitzgerald.(Chavez, Lucero) (Entered: 04/12/2012)
37 STIPULATION for Discovery as to Deposition After Discovery Cut−Off filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Attachments: # 1 Proposed Order Order Allowing Deposition After Discovery Cut−Off)(Phillips, Wendy) (Entered: 04/16/2012)
38 Joint STIPULATION for Order Modifying Scheduling Order (DKT 30) filed by Plaintiff William D Fitzgerald. (Attachments: # 1 Proposed Order)(Chavez, Lucero) (Entered: 04/18/2012)
39 ORDER to Allow Deposition of Plaintiff After Discovery Cut−Off, by Judge James V. Selna. Having reviewed the stipulation of the parties 37 , by and through their respective attorneys of record, and the declaration of Wendy J. Phillips, the Court finds good cause to allow the deposition of Plaintiff, William Fitzgerald, to be conducted after the discovery cut−off in this case. GOOD CAUSE APPEARING, IT IS SO ORDERED. (dro) (Entered: 04/19/2012)
40 ORDER by Judge James V. Selna. The prior dates set forth in the Courts December 19, 2011 Order are modified as follows: a. Settlement Conference deadline: June 6, 2012 b. Motions to be filed and served by: June 18, 2012 c. Law and Motion cut−off: July 16, 2012. (db) (Entered: 04/20/2012)
41 STANDING ORDER by Judge Marc L. Goldman: A Settlement Conference is scheduled for June 6, 2012, at 9:30AM before Magistrate Judge Marc L. Goldman. All parties and their lead counsel are required to appear on the date and time set. Pre−conference negotiations are required. (ts) (Entered: 04/20/2012)
42 PROOF OF SERVICE Executed by Plaintiff William D Fitzgerald, upon Defendant James C Pena served on 5/1/2012, answer due 5/22/2012. Service of the Summons and Complaint were executed upon Minhn Nguyen, Staff Specialist in compliance with Federal Rules of Civil Procedure by personal service. Original Summons NOT returned. Service of Summons and Second Amended Compalint served on James C. Pena in his official and individual capacities (Vakili, Bardis) (Entered: 05/11/2012)
43 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Service of Summons and Complaint Returned Executed (21 days), Service of Summons and Complaint Returned Executed (21 days) 42 . The following error(s) was found: Title page is missing. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (db) (Entered: 05/15/2012)
44 NOTICE of Change of Attorney Information for attorney Wendy J Phillips counsel for Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County. Adding Elizabeth A. Pejeau as attorney as counsel of record for Defendants for the reason indicated in the G−06 Notice. Filed by Defendants County of Orange, Bill Campbell, John Moorlach, Janet Nguyen (Phillips, Wendy) (Entered: 05/24/2012)
45 MINUTES OF Telephone Status Conference held before Magistrate Judge Marc L. Goldman: After discussion, and based upon the position of the parties, it was agreed that a settlementconference at this time would not be fruitful. It is ordered that the settlement conference currently scheduled for Wednesday, June 6, 2012, at 9:30 a.m. is taken off−calendar. Should the case survive the anticipated cross−motions for summary judgment, counsel may request that another settlement conference be scheduled. Court Reporter: n/a. (rla) (Entered: 05/31/2012)
46 NOTICE of Change of Attorney Information for attorney James Clement Harman counsel for Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena.JAMES C. HARMAN is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G−06 Notice. Filed by DEFENDANTS ORANGE COUNTY (Harman, James) (Entered: 06/07/2012)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 7 of 14

06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012
06/18/2012 06/18/2012
06/25/2012 06/25/2012 06/25/2012

47 NOTICE OF MOTION AND MOTION for Summary Judgment as to Fed. Rules of Civil Proc., Rule 56 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. Motion set for hearing on 7/16/2012 at 01:30 PM before Judge James V. Selna. (Phillips, Wendy) (Entered: 06/18/2012)
48 MEMORANDUM of Points and Authorities in Support Re: MOTION for Summary Judgment as to Fed. Rules of Civil Proc., Rule 56 47 (Phillips, Wendy) (Entered: 06/18/2012)
49 STATEMENT of Uncontroverted Facts and Conclusions of Law [Local Rule 56−1] (Phillips, Wendy) (Entered: 06/18/2012)
50 Compendium of Declarations In Support of Motion for Summary Judgment filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena re: MOTION for Summary Judgment as to Fed. Rules of Civil Proc., Rule 56 47 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Phillips, Wendy) (Entered: 06/18/2012)
51 NOTICE of Manual Filing filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena of DVD Containing Orange County Board of Supervisor Hearings Dated July 27, 2010 & Aug. 23, 2011. (Phillips, Wendy) (Entered: 06/18/2012)
52 NOTICE OF LODGING filed Proposed Judgment re MOTION for Summary Judgment as to Fed. Rules of Civil Proc., Rule 56 47 (Attachments: # 1 Proposed Judgment)(Phillips, Wendy) (Entered: 06/18/2012)
53 NOTICE OF LODGING filed Statement of Uncontroverted Facts & Conclusions of Law re MOTION for Summary Judgment as to Fed. Rules of Civil Proc., Rule 56 47 (Attachments: # 1 Statement of Uncontroverted Facts)(Phillips, Wendy) (Entered: 06/18/2012)
54 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiff's Claims Under the First Amendment and the California Constitution filed by Plaintiff William D Fitzgerald. Motion set for hearing on 7/16/2012 at 01:30 PM before Judge James V. Selna. (Attachments: # 1 Memorandum of Points and Authorities in Support of Plaintiff's Motion for Partial Summary Judgment, # 2 Declaration of Bardis Vakili in Support of Plaintiff's Motion for Partial Summary Judgment, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Proposed Order, # 13 Statement of Uncontroverted Facts and Conclusions of Law)(Vakili, Bardis) (Entered: 06/18/2012)
55 NOTICE OF LODGING filed re MOTION for Partial Summary Judgment as to Plaintiff's Claims Under the First Amendment and the California Constitution 54 (Attachments: # 1 Statement of Uncontroverted Facts and Conclusions of Law in Support of Plaintiff's Motion for Partial Summary Judgment, # 2 Proposed Order)(Vakili, Bardis) (Entered: 06/18/2012)
56 EXHIBIT "1" to Declaration of Darlene Bloom Included in Orange County Defendants' Compendium of Declarations in Support of Motion for Summary Judgment [A DVD Video Recording of Portions of the Orange County Board of Supervisors Meetings of July 27, 2010 and August 23, 2011] filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County amd James C Pena. (Attachments: # 1 Voluminous−Exhibit Contains CD)(lwag) (Entered: 06/21/2012)
57 MEMORANDUM in Opposition to MOTION for Partial Summary Judgment as to Plaintiff's Claims Under the First Amendment and the California Constitution 54 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 06/25/2012)
58 STATEMENT of General Issues of Material Fact in Opposition to Plaintiff's Motion for Partial Summary Judgment (Phillips, Wendy) (Entered: 06/25/2012)
59 OPPOSITION re: MOTION for Partial Summary Judgment as to Plaintiff's Claims Under the First Amendment and the California Constitution 54 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 06/25/2012)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 8 of 14

06/25/2012
07/02/2012 07/02/2012 07/02/2012 07/02/2012
07/11/2012 07/16/2012 07/20/2012
07/30/2012 07/30/2012 07/30/2012 07/30/2012

60 OPPOSITION to MOTION for Summary Judgment as to Fed. Rules of Civil Proc., Rule 56 47 filed by Plaintiff William D Fitzgerald. (Attachments: # 1 Plaintiff's Statement Genuine Issues of Material Facts in Opposition to Defendants' Motion for Summary Judgment, # 2 Declaration of Lucero Chavez in Support of Plaintiff's Opposition of Defendants' Motion for Summary Judgment, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Plaintiff's Evidentiary Objections in Opposition to Defendants' Motion for Summary Judgment)(Vakili, Bardis) (Entered: 06/25/2012)
61 REPLY to Plaintiff's Opposition to Defendants' Motion for Summary Judgment filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 07/02/2012)
62 OBJECTIONS re: MOTION for Partial Summary Judgment as to Plaintiff's Claims Under the First Amendment and the California Constitution 54 and Request to Strike and/or Disregard Portions of, Plaintiff's Additional Evidence in Support of Opposition to Defendants' Motion for Summary Judgment filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 07/02/2012)
63 RESPONSE filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena Response to Statement of Additional Material Facts Submitted by Plaintiff in Opposition to Defendants' Motion for Summary Judgment (Phillips, Wendy) (Entered: 07/02/2012)
64 REPLY in support of MOTION for Partial Summary Judgment as to Plaintiff's Claims Under the First Amendment and the California Constitution 54 filed by Plaintiff William D Fitzgerald. (Attachments: # 1 Declaration Supplemental Declaration of Bardis Vakili in Support of Plaintiff's Motion for Partial Summary Judgment, # 2 Exhibit A, # 3 Plaintiff's Response to Defendants' Statement of Genuine Issues of Material Fact in Opposition to Plaintiff's Motion for Partial Summary Judgment)(Vakili, Bardis) (Entered: 07/02/2012)
65 NOTICE OF ERRATA filed by Plaintiff William D Fitzgerald. Correcting Docket 64−2 (Attachments: # 1 Supplemental Declaration of Bardis Vakili in Support of Plaintiff's Motion for Partial Summary Judgment and Corrected Exhibit A)(Vakili, Bardis) (Entered: 07/11/2012)
66 MINUTES OF ; Motion Hearing held before Judge James V. Selna 47 54 . The Courts tentative ruling as issued. Counsel make their arguments. The Court takes the above referenced motions under submission. Court Reporter: Sharon Seffens. (db) (Entered: 07/17/2012)
67 MINUTES (IN CHAMBERS): ORDER by Judge James V. Selna: ORDER Denying Plaintiffs Motion for PartialSummary Judgment (fld 6−18−12) and Granting in Part and Denying in Part Defendants Motion for Summary Judgment or in the alternative Summary Adjudication (Fld 6−18−12): (See document for details.) For the foregoing reasons, Defendants Motion is GRANTED as to (1) all claims against the individual defendants; and (2) the federal and state constitutional challenges "as applied" to Fitzgerald. Defendants' Motion is DENIED as to the facial constitutional challenges to Rule 46 and the Speaker Guidelines under the United States Constitution and the California Constitution. Fitzgerald's Motion is DENIED. (rla) (Entered: 07/20/2012)
68 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 07/30/2012)
69 Joint Exhibit List filed by Plaintiff William D Fitzgerald.. (Vakili, Bardis) (Entered: 07/30/2012)
70 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 07/30/2012)
71 STATUS REPORT REGARDING SETTLEMENT filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 9 of 14

07/30/2012
07/30/2012 07/30/2012 07/30/2012 07/31/2012 08/01/2012 08/06/2012
08/13/2012 08/13/2012 08/13/2012 08/14/2012 08/14/2012 08/15/2012
08/16/2012 08/17/2012
08/20/2012 08/20/2012

(Entered: 07/30/2012)
72 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiff William D Fitzgerald. (Attachments: # 1 [Proposed] Pretrial Conference Order, # 2 Exhibit A Plaintiff's Objections, # 3 Exhibit B Defendants' Objections)(Vakili, Bardis) (Entered: 07/30/2012)
73 Witness List filed by Plaintiff William D Fitzgerald.. (Vakili, Bardis) (Entered: 07/30/2012)
74 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Plaintiff William D Fitzgerald. (Vakili, Bardis) (Entered: 07/30/2012)
75 STATUS REPORT Regarding Settlement filed by Plaintiff William D Fitzgerald. (Vakili, Bardis) (Entered: 07/30/2012)
76 NOTICE OF ERRATA filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. correcting Memorandum of Contentions of Fact and Law 70 (Phillips, Wendy) (Entered: 07/31/2012)
77 DECLARATION of William D. Fitzgerald provided for Direct Examination of Plaintiff (per Order Governing Attorney and Party Conduct at Trial DKT 32) filed by Plaintiff William D Fitzgerald. (Vakili, Bardis) (Entered: 08/01/2012)
78 MINUTES OF Pretrial Conference held before Judge James V. Selna. The Court GRANTS the parties motion to waive jury trial and proceed with the court trial. The Court and counsel confer regarding bench trial procedures. (See minute order for further details) Court Reporter: Sharon Seffens. (db) (Entered: 08/10/2012)
79 Proposed MEMORANDUM of CONTENTIONS of FACT and LAW filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Pejeau, Elizabeth) (Entered: 08/13/2012)
80 NOTICE of Lodging filed by Plaintiff William D Fitzgerald. (Attachments: # 1 [Plaintiff's Proposed] Findings of Fact and Conclusions of Law)(Vakili, Bardis) (Entered: 08/13/2012)
81 Plaintiff's Summaries of Direct Testimony filed by Plaintiff William D Fitzgerald (Vakili, Bardis) (Entered: 08/13/2012)
82 TRIAL BRIEF filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena.. (Phillips, Wendy) (Entered: 08/14/2012)
83 TRIAL BRIEF filed by Plaintiff William D Fitzgerald.. (Vakili, Bardis) (Entered: 08/14/2012)
84 (IN CHAMBERS) The Court hereby sets the Bench Trial, previously scheduled for 8/21/12 at 8:30 AM, for 8/22/2012 at 8:30 AM before Judge James V. Selna. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(kt) TEXT ONLY ENTRY (Entered: 08/15/2012)
85 OBJECTIONS to Plaintiff's Direct Examination Declaration filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 08/16/2012)
86 PRETRIAL CONFERENCE ORDER by Judge James V. Selna. Bill Campbell terminated.IT IS ORDERED: 1. The parties are: (A) Plaintiffs: William D. Fitzgerald(B) Defendants: Orange County, John Moorlach, in his official capacity,Janet Nguyen, in her official capacity, and James C. Pena, in his official capacity. Each of these parties has been served and has appeared. All other parties named in the pleadings and not identified in the preceding paragraph are now dismissed. See Order for more information. (twdb) (Entered: 08/20/2012)
87 Amended Joint Exhibit List filed by Plaintiff William D Fitzgerald.. (Vakili, Bardis) (Entered: 08/20/2012)
88 Joint PRETRIAL STIPULATION regarding Exhibits filed by Plaintiff William D Fitzgerald.(Vakili, Bardis) (Entered: 08/20/2012)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 10 of 14

08/20/2012 08/20/2012 08/20/2012 08/20/2012 08/20/2012 08/20/2012 08/20/2012
08/20/2012 08/20/2012 08/21/2012
08/22/2012 08/22/2012 08/24/2012
08/24/2012 08/24/2012

89 NOTICE OF LODGING filed by Defendants re Order, 39 (Attachments: # 1 Exhibit Marked Deposition Transcript of William Fitzgerald)(Phillips, Wendy) (Entered: 08/20/2012)
90 APPENDIX filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. Re: Deposition Transcript of Plaintiff William Fitzgerald (Phillips, Wendy) (Entered: 08/20/2012)
91 Plaintiff's Supplemental Objections to Trial Exhibits Noted in Amended Joint Exhibit List filed by Plaintiff William D Fitzgerald (Vakili, Bardis) (Entered: 08/20/2012)
92 NOTICE OF LODGING filed re Pretrial Conference − Final, 78 (Attachments: # 1 Plaintiff's Direct Testimony by Deposition of Susan Novak and Defendants' Objections Thereto)(Vakili, Bardis) (Entered: 08/20/2012)
93 NOTICE OF LODGING filed re Pretrial Conference − Final, 78 (Attachments: # 1 Plaintiff's Direct Testimony by Deposition of John Moorlach and Defendants' Objections Thereto)(Vakili, Bardis) (Entered: 08/20/2012)
94 NOTICE OF LODGING filed re Pretrial Conference − Final, 78 (Attachments: # 1 Plaintiff's Direct Testimony by Deposition of Janet Nguyen and Defendants' Objections Thereto)(Vakili, Bardis) (Entered: 08/20/2012)
95 NOTICE OF LODGING filed re Pretrial Conference − Final, 78 (Attachments: # 1 Plaintiff's Direct Testimony by Deposition of James Pena and Defendants' Objections Thereto (Part 1), # 2 Plaintiff's Direct Testimony by Deposition of James Pena and Defendants' Objections Thereto (Part 2), # 3 Plaintiff's Direct Testimony by Deposition of James Pena and Defendants' Objections Thereto (Part 3))(Vakili, Bardis) (Entered: 08/20/2012)
96 Plaintiff's Index of Direct Testimony by Deposition and Defendants' Objections Thereto filed by Plaintiff William D Fitzgerald re: Pretrial Conference − Final, 78 (Vakili, Bardis) (Entered: 08/20/2012)
97 NOTICE of Errata filed by Plaintiff William D Fitzgerald. (Attachments: # 1 Plaintiff's Direct Testimony by Deposition of Susan Novak and Defendants' Objections with Exhibits)(Vakili, Bardis) (Entered: 08/20/2012)
98 NOTICE of Errata Regarding Docket 89−"Notice of Lodging of the Marked Deposition Transcript of William Fitzgerald Erroneously Filed Unmarked filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Attachments: # 1 Exhibit Marked Deposition of William Fitzgerald)(Phillips, Wendy) (Entered: 08/21/2012)
99 COURT'S RULINGS ON DEFENDANTS' OBJECTIONS by Judge James V. Selna: (See document for details.) (rla) (Entered: 08/23/2012)
100 MINUTES OF Court Trial (1st day )held before Judge James V. Selna: Opening statements made. Witnesses called, sworn and testified. Exhibits identified and admitted. Trial set for 8/24/2012 09:00 AM before Judge James V. Selna.Court Reporter: Phyllis Preston / Sharon Seffens. (twdb) (Entered: 08/23/2012)
101 TRANSCRIPT for proceedings held on 8/22/12, Vol 2 (1:30 PM). Court Reporter/Electronic Court Recorder: Sharon Seffens, phone number 714−543−0870. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/14/2012. Redacted Transcript Deadline set for 9/24/2012. Release of Transcript Restriction set for 11/22/2012. (dg) (Entered: 08/24/2012)
102 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/22/12 re Transcript 101 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dg) TEXT ONLY ENTRY (Entered: 08/24/2012)
103 TRANSCRIPT ORDER for date of proceedings 08/22/2012 to 08/24/2012 as to Plaintiff William D Fitzgerald Court Reporter Sharon Seffens. Transcript portion requested: Testimony of: Novak, 08/22/2012 PM; Nguyen, 08/22/2012 PM; Moorlach 08/22/2012 PM; Pena 08/24/2012 AM; Bloom, 08/24/2012 AM; Campbell 08/24/2012

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 11 of 14

08/24/2012 08/27/2012
08/27/2012 08/28/2012
08/28/2012 08/28/2012 08/28/2012 08/28/2012 08/30/2012
08/30/2012 09/07/2012 09/13/2012

AM. Category: Daily. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Escobosa Helzer, Belinda) (Entered: 08/24/2012)
106 MINUTES OF Court Trial (2nd day ) held before Judge James V. Selna: Witnesses called, sworn and testified. Exhibits identified and admitted. Court Trial continued to 8/28/2012 09:00 AM before Judge James V. Selna. Court Reporter: Sharon Seffens. (rla) (Entered: 08/27/2012)
104 TRANSCRIPT for proceedings held on 8/24/12. Court Reporter/Electronic Court Recorder: Sharon Seffens, phone number 714−543−0870. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/17/2012. Redacted Transcript Deadline set for 9/27/2012. Release of Transcript Restriction set for 11/25/2012. (dg) (Entered: 08/27/2012)
105 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/24/12 re Transcript 104 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dg) TEXT ONLY ENTRY (Entered: 08/27/2012)
107 TRANSCRIPT for proceedings held on 8/22/12, 9:47 a.m.. Court Reporter: Phyllis Preston email: stenojag@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/18/2012. Redacted Transcript Deadline set for 9/28/2012. Release of Transcript Restriction set for 11/26/2012. (Preston, Phyllis) (Entered: 08/28/2012)
108 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/22/12, 9:47 a.m. re Transcript 107 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Preston, Phyllis) TEXT ONLY ENTRY (Entered: 08/28/2012)
111 MINUTES OF Court Trial (3rd Day) held and completed before Judge James V. Selna: Closing arguments made. The Court finds: for defendant(s). The Court states findings of fact and conclusions of law for the record. Counsel for defendants shall prepare, serve and submit a proposed form of judgment. Court Reporter: Sharon Seffens. (rla) (Entered: 08/31/2012)
112 RECEIPT FOR RELEASE OF EXHIBITS to Counsel Upon Verdict/Judgment at Trial; Pursuant to stip of counsel and/or by Order of the Court, all exhibits listed on JOINT exhibits list are returned to counsel for respective party(ies). (rla) (Entered: 09/04/2012)
113 DEPOSITION filed by plaintiff William D Fitzgerald Deposing Darlene Bloom on 3/27/2012. (rla) (Additional attachment(s) added on 9/4/2012: # 1 PART 2, # 2 PART 3, # 3 PART 4, # 4 PART 5, # 5 PART 6) (rla). (Entered: 09/04/2012)
109 TRANSCRIPT for proceedings held on 8/28/12. Court Reporter/Electronic Court Recorder: Sharon Seffens, phone number 714−543−0870. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/20/2012. Redacted Transcript Deadline set for 9/30/2012. Release of Transcript Restriction set for 11/28/2012. (dg) (Entered: 08/30/2012)
110 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/28/12 re Transcript 109 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dg) TEXT ONLY ENTRY (Entered: 08/30/2012)
114 NOTICE OF LODGING filed re Bench Trial − Completed (Court Decision), Bench Trial − Completed (Court Decision) 111 (Attachments: # 1 Proposed Judgment)(Phillips, Wendy) (Entered: 09/07/2012)
115 OBJECTIONS to Notice of Lodging 114 [Proposed] Judgment filed by Plaintiff William D Fitzgerald. (Vakili, Bardis) (Entered: 09/13/2012)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 12 of 14

09/17/2012 09/21/2012 09/25/2012 09/25/2012 09/27/2012 09/27/2012 10/01/2012 10/01/2012 10/03/2012
10/04/2012
10/09/2012 10/15/2012 10/15/2012 10/22/2012
10/22/2012

116 RESPONSE filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Penato Objections − non−motion 115 Response to Plaintiff's Objection to Defendants' Proposed Judgment (Attachments: # 1 Exhibit Exhibit A)(Phillips, Wendy) (Entered: 09/17/2012)
117 JUDGMENT by Judge James V. Selna, in favor of Orange County, James C Pena, Janet Nguyen, John Moorlach against William D Fitzgerald. (MD JS−6, Case Terminated). (rla) (Entered: 09/24/2012)
118 NOTICE of Appeal filed by Plaintiff William D Fitzgerald. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Vakili, Bardis) (Entered: 09/25/2012)
121 APPEAL FEE PAID: re Notice of Appeal to 9th Circuit Court of Appeals 120 as to Plaintiff William D Fitzgerald; Receipt Number: SA006011 in the amount of $455. (car) (Entered: 09/27/2012)
119 NOTICE OF ERRATA filed by Plaintiff William D Fitzgerald. correcting Notice (Other) 118 (Attachments: # 1 Notice of Appeal, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Vakili, Bardis) (Entered: 09/27/2012)
120 NOTICE OF APPEAL to the 9th CCA filed by Plaintiff William D Fitzgerald. Appeal of Judgment 117 (Appeal fee FEE NOT PAID.) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Vakili, Bardis) (Entered: 09/27/2012)
122 NOTIFICATION by Circuit Court of Appellate Docket Number 12−56773, 9th CCA regarding Notice of Appeal to 9th Circuit Court of Appeals 120 as to Plaintiff William D Fitzgerald. (car) (Entered: 10/01/2012)
123 APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald filed by Defendants James C Pena, Janet Nguyen, Bill Campbell, John Moorlach, Orange County. Application set for hearing on 10/18/2012 at 09:00 AM before Judge James V. Selna. (Attachments: # 1 Bill of Costs)(Phillips, Wendy) (Entered: 10/01/2012)
124 SEALED DOCUMENT − APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald filed by Defendants James C Pena, Janet Nguyen, Bill Campbell, John Moorlach, Orange County. Application set for hearing on 10/18/2012 at 09:00 AM before Clerk of Court. (Attachments: # 1 Bill of Costs (CV−59))(Phillips, Wendy) Modified on 11/13/2012 (rla). (Entered: 10/03/2012)
125 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 123 . The following error(s) was found: Hearing information is incorrect. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (rla) (Entered: 10/04/2012)
126 OBJECTIONS to APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 filed by Plaintiff William D Fitzgerald. (Vakili, Bardis) (Entered: 10/09/2012)
127 REPLY to Plaintiff's Objection to Application to Tax Costs APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 10/15/2012)
128 BILL OF COSTS. Costs Taxed in amount of $ 974.96 in favor of Orange County, et al. and against Plaintiff, Fitzgerald. RE: 123 , 124 (mb) (Entered: 10/16/2012)
129 NOTICE of Manual Filing filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena of APPLICATION TO SEAL ATTACHMENTS TO BILL OF COSTS NUNC PRO TANC; and [PROPOSED] ORDER TO SEAL ATTACHMENTS TO BILL OF COSTS NUNC PRO TANC. (Phillips, Wendy) (Entered: 10/22/2012)
130 Notice of Withdrawal of Notice of Manual Filing (G−92), Notice of Manual Filing (G−92) 129 filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Phillips, Wendy) (Entered: 10/22/2012)

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 13 of 14

10/22/2012 10/22/2012 10/23/2012 10/26/2012 11/08/2012
11/08/2012
11/13/2012 11/28/2012
11/28/2012 11/29/2012

131 APPLICATION to Amend APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 123 , APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 , Bill of Costs (CV−59) 128 and to Seal Attachments to Bill of Costs Nunc Pro Tunc filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Attachments: # 1 Exhibit Exhibit A)(Phillips, Wendy) (Entered: 10/22/2012)
132 STIPULATION File Attachments to Bill of Costs Nunc Pro Tunc Under Seal filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Attachments: # 1 Proposed Order to Seal Attachments to Bill of Costs Nunc Pro Tunc)(Phillips, Wendy) (Entered: 10/22/2012)
133 ORDER by Judge James V. Selna: denying 131 Application to Seal Attachments to Bill of Costs Nunc Pro Tunc. (twdb) (Entered: 10/24/2012)
134 TRANSCRIPT ORDER re: Order on Motion for Summary Judgment, Order on Motion for Partial Summary Judgment, Motion Hearing 66 , as to Plaintiff William D Fitzgerald Court Reporter. Court will contact Bardis Vakili at bvakili@aclu−sc.org; mesquivel@aclu−sc.org with any questions regarding this order. Transcript portion requested: Other: Motion for Summary Judgment Hearing. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Vakili, Bardis) (Entered: 10/26/2012)
135 Renewed APPLICATION to APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 123 , APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 , Bill of Costs (CV−59) 128 TO SEAL ATTACHMENTS TO BILL OF COSTS NUNC PRO TUNC filed by Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Attachments: # 1 Declaration OF WENDY J. PHILLIPS IN SUPPORT OF RENEWED APPLICATION TO SEAL ATTACHMENTS TO BILL OF COSTS NUNC PRO TUNC, # 2 Exhibit A)(Phillips, Wendy) (Entered: 11/08/2012)
136 STIPULATION to Renewed APPLICATION to APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 123 , APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 , Bill of Costs (CV−59) 128 TO SEAL ATTACHMENTS TO BILL OF COSRenewed APPLICATION to APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 123 , APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 , Bill of Costs (CV−59) 128 TO SEAL ATTACHMENTS TO BILL OF COSRenewed APPLICATION to APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 123 , APPLICATION to the Clerk to Tax Costs against Plaintiff William D Fitzgerald 124 , Bill of Costs (CV−59) 128 TO SEAL ATTACHMENTS TO BILL OF COS 135 filed by DEFENDANTS Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena. (Attachments: # 1 Proposed Order TO SEAL ATTACHMENTS TO BILL OF COSTS NUNC PRO TUNC)(Phillips, Wendy) (Entered: 11/08/2012)
137 ORDER TO SEAL ATTACHMENTS TO BILL OF COSTS NUNC PRO TUNC by Judge James V. Selna: IT IS HEREBY ORDERED that Document #124, Defendants' previously filed Bill of Costs be placed under seal nunc pro tunc, and that the public shall not be permitted to access those pages from the District Court's Electronic Filing system or PACER. (rla) (Entered: 11/13/2012)
138 TRANSCRIPT for proceedings held on 7/16/12. Court Reporter/Electronic Court Recorder: Sharon A. Seffens, phone number (714) 543−0870. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/19/2012. Redacted Transcript Deadline set for 12/29/2012. Release of Transcript Restriction set for 2/26/2013. (twdb) (Entered: 11/28/2012)
139 NOTICE OF FILING TRANSCRIPT filed for proceedings 7/16/12 re Transcript 138 . THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(twdb) TEXT ONLY ENTRY (Entered: 11/28/2012)
140 TRANSCRIPT ORDER as to Defendants Bill Campbell, John Moorlach, Janet Nguyen, Orange County, James C Pena Court Reporter. Court will contact Kayla

Case: 8:11-cv-1355 As of: 01/25/2015 09:53 AM PST 14 of 14

04/16/2014 06/17/2014 06/18/2014 06/26/2014

Martin at cocotemp2@coco.ocgov.com with any questions regarding this order. Transcript portion requested: Pre−Trial Proceeding: July 16, 2012. Transcript preparation will not begin until payment has been satisfied with the court reporter/recorder. (Phillips, Wendy) (Entered: 11/29/2012)
141 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 120 filed by William D Fitzgerald, CCA # 12−56773. Defendants−appellees' request to take judicial notice is DENIED. Order received in this district on 4/16/14. (mat) (Entered: 04/21/2014)
142 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 120 filed by William D Fitzgerald, CCA # 12−56773. The petition for rehearing and the petition for rehearing en banc are denied. Order received in this district on 6/17/14. [See document for details] (mat) (Entered: 06/20/2014)
143 ORDER from 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 120 filed by William D Fitzgerald, CCA # 12−56773. Fitzgerald's motion for reconsideration of Orange County's bill of costs is DENIED. Order received in this district on 6/18/2014. (dmap) (Entered: 06/20/2014)
144 MANDATE of 9th CCA filed re: Notice of Appeal to 9th Circuit Court of Appeals 120 , CCA # 12−56773. The decision of the district court is affirmed. Mandate received in this district on 6/26/2014. (dmap) (Entered: 06/27/2014)