Barich v. Cotati

Background

George E. Barich and Laurie Alderman sued the City of Cotati and John A. Dell’Osso, identified in the opinion as the City’s mayor, under 42 U.S.C. § 1983. Their claims included alleged violations of the First Amendment’s freedom-of-speech provision, the Fourteenth Amendment’s Equal Protection Clause, and Title II of the Americans with Disabilities Act (ADA).

The constitutional claims arose from City Council meetings on January 8 and January 22, 2019. Barich was out of town and authorized Alderman to read his written statement during public comment. Mayor Dell’Osso did not allow her to read the statement, although the statement could be included in the written record. At the January 22 meeting, the mayor and the City Attorney relied on a rule that did not allow speakers to use power of attorney to speak for another person. Plaintiffs identified at least thirteen examples of people who had previously been allowed to speak for others at City Council meetings.

The ADA claim arose from a March 27, 2019 special meeting held in a community room at the Cotati police station. Barich, who has progressive hearing loss and tinnitus, had requested a hearing-assist device. The City provided two devices, but neither amplified sound in that room. Barich told City officials that the devices were not working and asked that the meeting be moved to the nearby council chambers, where the public-address system could accommodate his hearing disability. Dell’Osso denied the request and suggested that Barich raise his hand and interrupt the meeting whenever he had trouble hearing. Barich then left.

Summary-Judgment Standard

Summary judgment is appropriate when there is no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. The court must view the evidence in the light most favorable to the party opposing the motion. A factual dispute is genuine when the evidence could allow a reasonable jury to decide for that party.

Judicial Notice

The court granted both sides’ requests for judicial notice. It took notice of sixteen documents submitted by defendants and one official video submitted by plaintiffs, including City Council videos, minutes, and policies. The court explained that these materials were public records whose authenticity was not disputed and were being used to show what was said or done, rather than to establish the truth of every statement in them.

Equal Protection Claim

The court denied summary judgment on the Equal Protection claim. It determined that plaintiffs had presented enough evidence for a jury to find that Barich and Alderman were intentionally treated differently from similarly situated speakers. The thirteen examples of people who had been allowed to speak for others supported that possibility.

The parties disputed whether Alderman tried to use one or two speaking periods, whether Barich gave her authority to speak on his behalf or to use an additional time slot, and whether she knew she could speak for Barich during her own time. Those disputes affected whether the other speakers were sufficiently similar and whether the City had a rational basis for treating plaintiffs differently. The court concluded that these credibility and factual questions should be decided by a fact-finder rather than on summary judgment.

Although plaintiffs also alleged a First Amendment claim, the court stated that the substance of their complaint was better assessed under equal-protection principles because there was no allegation of a conventional viewpoint-discrimination claim.

ADA Claim

The court also denied summary judgment on Barich’s ADA claim. Title II of the ADA prohibits a public entity from excluding a person with a disability from participating in, or denying that person the benefits of, its services or programs because of the disability. Public entities must provide effective communication and appropriate auxiliary aids and services when necessary for equal participation.

Because plaintiffs sought compensatory damages, they had to present evidence from which a jury could find intentional discrimination. Under the applicable standard, deliberate indifference requires knowledge that harm to a federally protected right is substantially likely and a failure to act on that likelihood.

The court found sufficient evidence of the first part of that standard because Barich told the mayor and City officials that the hearing-assist devices did not work and that he could not hear effectively. The court also found a factual dispute about whether the proposed accommodation—requiring Barich to raise his hand and interrupt whenever he could not hear—was reasonable. The room’s seating arrangement, the length of the meeting, and the difficulty of following a complex, multi-person discussion could support a finding that the proposed arrangement did not allow effective communication.

The court noted that a jury could alternatively find that the City’s failure resulted from bureaucratic oversight or negligence rather than deliberate indifference. It also rejected defendants’ argument that Barich’s leaving the meeting before trying the proposed accommodation resolved the issue. The reasonableness of the accommodation and whether officials were deliberately indifferent remained triable questions.

The court further concluded that the Brown Act did not necessarily prevent the City from continuing or postponing the meeting while finding a workable accommodation. The court identified possible alternatives, including obtaining functioning devices, extending the speaker system’s range, changing the seating arrangement, or using another room.

Qualified Immunity

The court rejected defendants’ request for summary judgment based on qualified immunity. Qualified immunity can protect officials from damages for discretionary acts when the law did not clearly establish that the conduct was unlawful. But the court stated that its prior ruling had determined that qualified immunity could not protect a public official from an intentional-discrimination claim that, if proven, would clearly violate the Constitution. Because plaintiffs alleged intentional discrimination in their class-of-one Equal Protection claim, the defense could not resolve that claim at summary judgment.

Monell Claim

The court denied summary judgment on plaintiffs’ Monell claim against the City. A Monell claim is a § 1983 claim asserting that a local government caused a constitutional violation through an official policy or custom, including a decision by an official with final policymaking authority. The court had previously ruled that Dell’Osso acted on behalf of the City when he refused to let Alderman speak under the City Council’s rules. Defendants offered no new facts or arguments changing that conclusion, and the court had denied summary judgment on the constitutional claims.

Disposition

The court denied defendants’ motion for summary judgment and stated that the order disposed of Docket No. 60. The opinion did not enter judgment for either side on the claims discussed in the motion.