FREE SPEECH — The U.S. Court of Appeals for the Ninth Circuit has concluded that a San Diego County land use body violated the constitutional speech rights of one of its members when it ousted her as the representative of a cattlemen's group for making a statementat the body's requestthat the body found unacceptable, reports Greg Moran for the San Diego Union-Tribune.
In a five-page decision, a three-judge panel said the record
flatly contradicts the county's claim that (Dr. Almeda) Starkey was removed
because she was uncooperative.
The only identifiable act that led to Dr. Starkey's removal was
her reading of a brief, prepared statement into the record of a
committee meeting, the panel wrote in an unsigned opinion. Viewpoint
discrimination of this nature is particularly odious under the First
The case drew the attention of Californians Aware, the California
First Amendment Coalition and the American Civil Liberties Union, who
all sided with Starkey. They said it highlighted a key principle in
First Amendment law that governments cannot squelch a point of view
they simply don't want to hear.
Starkey's return to the committee may have to wait. Budget cuts
have led county planners to suspend the committee's work, so it is no
The East County Multiple Species Conservation Program is intended
to map out large habitat preserves to protect threatened and endangered
species and would impose land-use restrictions on large chunks of
Starkey was brought on the committee to represent the San
Diego-Imperial County Cattlemen's Association, which is concerned about
the plan's effects on private landholders in the backcountry.
In her statement last year, Starkey proposed creating the preserve
on publicly owned lands and private lands that were already designated
for conservation. That approach would exempt agricultural lands,
including ranches, from the habitat preserve.
The cattlemen's association picked Starkey, a member
of the group's board of directors, for the committee.
However, after Starkey read her statement during her second
meeting, Murphy wrote a letter to Davis that said Starkey has not
demonstrated a willingness to cooperate or collaborate in order to
further the project.
Murphy told the association it could offer up a new representative, but Starkey had to go, he wrote.
The cattleman didn't blink. We felt Almeda was our representative,
and we didn't think she was being disruptive, Davis said. She was
asking some very good questions.
Starkey was stunned. The committee was supposed to solicit
different viewpoints, and that was what she had done. That's what
democracy is, she said.
Starkey said she did not run into any problems in her brief tenure. I had a good feeling from everyone there, she said.
A request to interview Murphy and other planning officials was
referred to Ellen Pilsecker, the county lawyer who argued the case. She
said it was not anything Starkey said that got her removed, but her
It was more of a perception issue, Pilsecker said. What I have
been told is it was supposed to be a group of people working together,
and other members of that group did not feel she was being a team
Pilsecker also said that before Starkey was on the committee, she
had been trying to obtain documents from the county under the state
Public Records Act. Her lawyer had written the county to say that if
not all the records were produced, Starkey might sue to get them a
step that is allowed under the law.
Pilsecker argued that it fueled the county's perception that Starkey would not be a cooperative member of the committee.
The lawsuit over Starkey's dismissal ended up in federal court.
Starkey asked for a court order that would place her back on the
committee, but District Judge Janis Sammartino ruled Starkey did not
have a First Amendment right to a seat on the committee and sided with
Pilsecker had argued that Starkey could come and speak to the committee as a member of the public.
Cummins, who argued the appeal for the cattlemen's
association, said there is a distinct difference between speaking
during the public comment portion and having a seat on the committee.
(Cummins has also represented
The San Diego Union-Tribune
in First Amendment and public-records-access litigation.)
Moreover, Cummins said, Starkey's seven-paragraph statement was in response to a request from the committee.