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Page v. Braker

January 31, 2007

RE: DONALD PAGE
v.
MARVIN T. BRAKER, ET AL.



The opinion of the court was delivered by: William J. Martini Judge

LETTER OPINION

Dear Litigants:

This matter comes before the Court on Defendant Marvin T. Braker's ("Braker") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, Braker's motion is GRANTED and Plaintiff's Complaint is DISMISSED WITH PREJUDICE in its entirety.

Background

The facts of this case surround a City of Orange (the "City") council meeting held on March 21, 2006. At the meeting, Plaintiff pro se Donald Page ("Page"), a City councilman, voiced concerns over African-American participation in a parking lot renovation project. (Affidavit of Peter Till, Exh. 2 [hereinafter Till Aff.].) Specifically, Page took issue with the City's definition of the word "minority," as used in an affirmative action statute. (See id.) While voicing his concerns over the definition of the term, Page stated that he "did not consider white females to be minorities." (Compl. ¶ 9.) Page also remarked that any definition of the word "minority" should specifically include African-Americans, otherwise, as he stated, "when you talk about a minority [sic] may be an Hispanic, or a Mexican, or something, or a white female." (Till Aff., Exh. 2.) Various council members found these remarks offensive. (See id.)

As a result, certain council members put forth a call to censure Page. (Id., Exh. 7.) On April 17, 2006, Page wrote to Braker, who is the City's attorney, asking him to "explain ...

[w]hat the act of 'censure' means regarding a councilperson," and "by what authority, code, ordinance, etc. does the administration or the city council has [sic] the right to censure a council person." (Id., Exh. 6.) Braker responded the same day by letter. (Id.) In it, Braker defined the term "censure" and referred Page to a provision of the City code authorizing the introduction of resolutions by council members. (Id.)

On April 18, the City council introduced and voted on a resolution to censure Page. (Id. Exh. 7.) At the hearing, the council requested advice from Braker regarding whether Page could vote on the resolution. (Statement of Undisptuded Material Facts Pursuant to Local Rule 56.1 ¶ 9 [hereinafter Braker's Rule 56.1 St.].) Braker opined that Page could not participate in the vote because of his personal interest in the outcome. (Id..) The council then passed the resolution by a 3-2 margin. (Till Aff., Exh. 7.) The resolution stated, in relevant part, that:

Council member Donald Page's remarks referencing in a negative way "Hispanics, Mexicans and white women", in no way reflects the sentiment and or character of members of this governing body....

(Id.) The resolution concluded that "the Municipal Council hereby disassociates itself from such remarks as they are not reflective of the governing body's feelings or sentiment towards any of our residents." (Id., Exh. 7.) The council took no other action regarding Page's comments. (See id.)

On April 24, 2006, Page wrote again to Braker asking for an explanation why he could not participate in the vote. (Id., Exh. 8.) Braker responded by letter on April 28, 2006. (Id., Exh. 9.) In the letter, Braker stated that Page could not participate in the vote because he had a direct personal interest in the outcome. (Id.) In addition, Braker remarked that allowing him to participate in light of the conflict would have resulted in monetary penalties. (Id.)

On May 4, 2006, Page sued Braker, along with three council members, for violating his free speech rights under the First Amendment to the United States Constitution.*fn1 U.S. Const. amend. 1. Braker now moves for summary judgment. In his motion, he asks the Court to dismiss Page's complaint for two reasons: (1) on grounds of qualified immunity; and (2) for failure to establish a First Amendment violation. Braker's motion is unopposed.

Discussion

I. Standard of ...


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