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Jerry Sanders Has a Right to Free Speech, Too

Nothing in state law in 2012 required the San Diego mayor to keep quiet on pension reform because he didn’t meet with labor unions first. The current city attorney is right to challenge the recent ruling on First Amendment grounds.

Backers of 2012’s Prop. B take part in a press conference. / Photo by Sam Hodgson

San Diego City Attorney Mara Elliott is standing up for free speech. We should support her.

Last month, the California Supreme Court ruled that former San Diego Mayor Jerry Sanders violated state labor laws when, in 2012, he publicly supported a citizens’ initiative. Proposition B, a pension reform measure, was placed on the ballot through petitions signed by more than 100,000 registered voters and was approved by more than two-thirds of the voters. The court said the mayor was prohibited from publicly supporting a citizens’ initiative on pension reform without first seeking labor unions’ permission through the negotiation process. If the negotiation process did not result in permission, the mayor could not publicly support the initiative.

Voice of San Diego CommentarySanders was not about to negotiate over his right to speak out. The unions vehemently opposed Proposition B and would never give permission. Although the City Council is empowered to break an impasse in negotiations, a majority opposed pension reform and their opposition was the reason Sanders supported a citizens’ initiative in the first place. They would not overrule the unions and grant permission.

I was the city attorney at the time, and there was nothing in the law that conditioned Sanders’ right to free speech on labor negotiations. Under state law, a city must negotiate with unions regarding employment benefits “prior to arriving at a determination of policy or course of action.” This law applies to city actions but has never been applied to an elected officeholder’s public support of a citizens’ initiative — until this Supreme Court decision.

Elliott recently petitioned the court to rehear the case, saying the justices failed to consider Sanders’ First Amendment rights. Although the city raised First Amendment arguments at every stage of the legal proceedings and the Court of Appeal justices concluded that Sanders’ support for pension reform was protected speech, the Supreme Court justices simply ignored the constitutional issue in overruling the Court of Appeal. Silence, however, does not overrule the U.S. Constitution.

Elliott is correct to seek a rehearing. The issue is too important. Her petition is a prerequisite to seeking review by the U.S. Supreme Court. And that’s where this issue should be decided.

The importance of this issue is illustrated by language from the city attorney’s petition citing U.S. Supreme Court decisions that concluded speech on public matters is entitled to special protection.

“Rather than limiting elected officials’ speech, the United States Supreme Court has held that elected officials must receive ‘the widest latitude to express their views on issues of policy,’” Elliott wrote. “In fact, they have a duty to inform the public of their views.”

The U.S. Supreme Court explained: “With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process.”

The California Supreme Court criticized Sanders for holding press conferences to describe his position, participating in media interviews, sharing his views in his State of the City speech, holding meetings with community leaders and issuing press releases. According to the California Supreme Court, Sanders could only do these things with permission through the labor negotiation process.

Elliott concluded: “Preventing the Mayor from expressing his views on pension reform would silence the City’s top elected official regarding how arguably the most significant financial issue facing the City should be handled. Since the First Amendment fully protects speech by elected officials, the capacity in which Mayor Sanders shared his views on pension reform does not matter.”

She added, “If he was speaking as a private citizen, his speech is undeniably protected by the First Amendment. If he was speaking as the city’s mayor, it is ‘all the more imperative that [he] be allowed to freely express [himself] on matters of current public importance.’”

I agree.

If it stands, the California Supreme Court decision would deter other elected officials from speaking out on pension reform and employment policies, all involving important public issues. And unions would have near veto power over elected officials’ ability to speak out on key issues.

We cannot let this stand. We want elected leaders to lead. They cannot lead if they cannot speak.

Jan Goldsmith is a former superior court judge, state legislator, Poway mayor and San Diego city attorney and is currently a practicing attorney.

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