Next Round for Dana Point Slander Suit

A few staples I recall from college journalism classes:

Your right to yell “fire” ends in a crowded theater. Your right to swing your fist ends where my nose begins. If you call somebody a crook, you’d better have the goods.

City Councilman Harold Kaufman of Dana Point is finding out the hard way that what you say can get you in trouble--even when you think you’ve got legislative immunity to protect you.

The 4th District Court of Appeal last week resurrected a slander suit brought against Kaufman by his longtime adversary, attorney Geoffrey Lachner. The suit was based on disparaging remarks Kaufman made about Lachner at a council meeting four years ago.

Superior Court Judge Dennis S. Choate threw out the slander suit on grounds that Kaufman was covered by legislative immunity. If you can’t feel free to speak your mind while sitting in the city council chamber, the thinking behind the law goes, you can’t properly govern. Choate’s ruling precluded any hearing on the evidence whether Lachner had been slandered or not.

The 4th District reversal becomes an interesting issue because it found a gray area that might come up from time to time.

Yes, the appellate court ruled, Kaufman is protected by legislative immunity as long as the discussion at hand is about an issue before the council. But if a council member strays off course to take a whack at an archenemy, then that public official at least has to worry whether the discussion has strayed off course too far. And if it has, then do his or her words cross the line into slander?

The appellate justices found that Choate had erred by not hearing evidence in the case. They sent it back so that he could.

But interestingly, when you read their opinions on the case, it’s Kaufman who comes off as the good guy.

Who’s the Real Winner?

Though Lachner gets the headline--he got his case reinstated--most of the court’s opinion took Kaufman’s side. Justice Kathleen O’Leary, who wrote the majority opinion, warned it doesn’t mean “a rosy future for Lachner’s case.” And in a concurring written opinion, Presiding Justice David Sills baldly predicted Lachner’s lawsuit was headed “for the judicial shredder.”

Sills wrote that he was “very reluctant” to even take Lachner’s side at all: “[Legislative] privilege encourages the free exchange of ideas without fear of lawsuits and protects both the public and the officials. . . .”

Even so, Councilman Kaufman wants to challenge the appellate court’s ruling before the state Supreme Court, as a matter of principle.

“It affects not just me, but everybody on a city council,” he said. “We can’t be going back and forth saying, ‘Now on this issue we can speak freely, but now this time we have to watch our words.’ It’s not feasible.”

Well, just what was said?

This was four years ago. There’s no written or audio or video record of exactly who said what to whom, or who got slammed.

At a June 25, 1996, meeting, the issue was whether to bounce Councilwoman Toni Gallagher from the council for repeated absences. Kaufman, who admits he and Gallagher have a deep dislike of each other, voted to keep her on. (She’s since left.) But during the discussion, the Save the Headlands environmental group was mentioned. Gallagher helped found the group, and Lachner was once its president. In a lawsuit against a developer, the group received $15,000. Kaufman acknowledges criticizing Lachner, the group’s attorney, for taking $12,000 of that $15,000. Lachner says Kaufman used the damaging phrase “and applied it to his own use.” If you think about it, anybody who receives a fee for anything would certainly “apply it to his own use.” But this seems to be the damning phrase.

Kaufman doesn’t remember saying that, but it’s splitting hairs anyway. His point was: Members of that environmental group were not getting a fair accounting for who got what money. Lachner, by the way, hasn’t returned my telephone calls. So I can’t say what his plan is now. But Justice Sills has a strong batting average on his “judicial shredder” predictions. So it seems a waste of everybody’s time and money for this to continue.

Kaufman says it’s up to the city’s insurance carrier to decide which way to go--the state Supreme Court or back to Superior Court. But clearly, he wants to fight on. It might benefit all of us if the state Supreme Court sticks its nose in.

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Jerry Hicks’ column appears Monday and Thursday. Readers may reach Hicks by calling (714) 966-7789 or e-mail to jerry.hicks@latimes.com.