Published: March 2, 2010
Updated: 1:33 p.m.
By BRITTANY LEVINE
Ban on anti-leafleting law to continue during trial

U.S. Supreme Court decides not to intervene in San Clemente case.

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People can continue to place leaflets under cars' windshield wipers in San Clemente after the U.S. Supreme Court decided not to intervene in a case pitting free speech against the city's anti-littering law.

On Monday the Supreme Court denied the city's request to review a lower court's ruling that halted the anti-leafleting law, according to court documents.


The temporary ban will last until after the case finishes trial in U.S. District Court in Los Angeles, where the lawsuit was filed in 2007. The trial is scheduled to begin in June. If federal judges eventually rule in favor of the leaflet-distributors, the ban could become permanent.

"Whether the Supreme Court chooses to hear the case is completely discretionary to them," said Ed Richards, the city's attorney in the case. "We knew the chances were slim."

Now city officials, who fought the ban because they said they had a responsibility to prevent trash, are faced with a decision. They can either amend the municipal code to eliminate the law or move ahead with a trial, which could cost up to $40,000 in damages, Richards said. The city's insurer, the California Joint Powers Insurance Agency, plans to pay for trial costs and possible damages, he said. City officials are to discuss what to do soon, Richards said, although he was uncertain if they will discuss the matter during any upcoming City Council meetings.

On June 2, 2007, Orange County sheriff's deputies told a group that was posting anti-illegal-immigration handbills under windshield wipers of cars parked on San Clemente streets to stop. The group, led by Steve Klein, who owns an insurance company in Hemet, followed deputies' orders and later filed a complaint in U.S. District Court saying the law infringed on their constitutional right to free speech. That court decided not to temporarily halt the city's law; an appellate court allowed a temporary ban, and the city then asked the U.S. Supreme Court to review the matter.

The city's ordinance did not prevent person-to-person leafleting. People could stand at the exit or entrance of a parking garage, parking lots or parks and hand out fliers. They could even approach cars at red lights.

Klein and nine other plaintiffs listed on the original complaint could each receive up to $4,000 in damages under a California law called the Bane Act, which provides protection from interference by threats, intimidation or coercion with someone's state or federal statutory or constitutional rights. This is not Klein's first free speech case. Two years before the San Clemente leafleting incident, he was involved in a free-speech case in San Diego County after demonstrating within 300 feet of someone's home, which is against the law there. He said that law hampered his free speech. The Central District and Ninth Circuit courts disagreed.

Michael Kumeta, a La Mesa lawyer representing Klein's group, said in an e-mail he would not comment on the San Clemente case until after it has been resolved.

"The parties still have discovery, motions for summary judgment, potential settlement discussions and even the possibility of a trial in the months ahead. In theory, the case could continue for another year or two," Kumeta wrote.

Contact the writer: blevine@ocregister.com


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