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LAWYER DIDN’T INFLUENCE DISMISSAL OF CHAFFEE SUIT As [James] Chaffee’s attorney in the lawsuit that was the subject of the June 7 article in The Recorderand posted on its Cal Law Web site, titled ” Pre-emptive Legal Strike Hits Activist,” I believe it appropriate that I comment on the article and the lawsuit. In summary, the lawsuit should never have been filed and the city attorney’s decision to dismiss it was made by the city attorney alone, independently of any claimed “representation” on my part. The suit was simply not sustainable on the facts alleged, in law or procedurally. It is apparent that when the city attorney realized the case was a mistake, it tried to spin its way out of its misguided attack on Mr. Chaffee. Note that Mr. Chaffee is a former chairman of the San Francisco Sunshine Ordinance Task Force. To facilitate the spin the city attorney has misstated and mischaracterized my correspondence with that office. In the article, Deputy City Attorney [Sherri Sokeland] Kaiser describes a purported “representation” from me that “Mr. Chaffee has no plans to file another lawsuit against the City.” The fact is that on May 30, I wrote Ms. Kaiser “� regardingthe Plaintiff’s Motion[which I believed was]� improperly before the court and should be withdrawn.” It was in the context of asking that the motion � not the lawsuit— be withdrawn, I said: “Given that Mr. Chaffee has not filed a lawsuit in well over a year, has no plans to file one soonnor has he threatened to do so, and the city attorney had many opportunities over the past several years to make the motion in pending cases and chose not to, I don’t see any urgent need not to allow the case to proceed in an orderly fashion as in any other civil lawsuit.” [Emphasis added.] Ms. Kaiser responded at the end of the day on June 2, stating: “�the City is encouraged by your representation that Mr. Chaffee has no plans to file another lawsuit against the City. In reliance on that representation, the City is willing to dismissits current complaint to have Mr. Chaffee declared a vexatious litigant without prejudice.” [Emphasis added.] Thus, the decision to drop the case was not made in response to any request by me and the statement regarding my so-called “representation” is both inaccurate and beside the point. To underscore its own decision to get the case off the books, it filed its request to dismiss even before we responded to the city attorney’s “offer” � i.e., willingness � to dismiss it. The complaint was insufficient and improper because the two linchpins on which it was based were inapplicable. First, the city attorney wrongfully assumed that an action for “declaratory” relief would be appropriate. But the action was outside the scope of CCP �1060, the enabling provision for such actions. Nor was there an actual controversy, also required by �1060. There was no allegation of a dispute nor that the defendant threatened to file any lawsuit. The courts do not render advisory or hypothetical decisions. Moreover, the city attorney made another misassumption � that, under CCP �1061, the court would not refuse to exercise its power to decline jurisdiction because its declaration was not necessary at the time. Second, CCP ��391 et seq.,which creates and sets the process by which a plaintiff is determined to be a vexatious litigant, was enacted, among other reasons, to protect defendantswho are the subject of frivolous suits primarily by providing a requirement of security from the vexatious plaintiff. By bringing this suit the plaintiff was attempting to convert a defendant’s remedy only available in a pending case, after passing up many opportunities to seek the same relief, to a remedy for a plaintiff. The vexatious litigant statute was designed as a shield to protect defendants against a vexatious litigant. The city attorney tried to turn it into a sword. Finally, [Matt] Dorsey, the spokesman for the city attorney’s office, stated that, “� in filing the complaint, his office is fulfilling the library commission’s request as well as guarding tax dollars. He estimated the city has spent about $500,000 defending itself against Chaffee since just 1989.” Mr. Dorsey didn’t offer any backup for that number. But taking him at his word, whose fault is that? Beginning in 1993, after the fifth lawsuit, the city attorney could have advised its client that under the “vexatious litigant” statute, it could ask the court to order the plaintiff, Mr. Chaffee, to post reasonable security to cover the city’s reasonable expenses, including attorney’s fees. I believe that the city attorney and the Library Commission owe Mr. Chaffee a public apology for its attempt to restrict his constitutionally protected rights of free speech and petition and forcing him to deal with a meritless lawsuit, no doubt instigated as a result of someone’s pique. Allen Grossman San Francisco

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