The new policy prohibits the Department
from investigating citizens for housing discrimination solely on the
basis of free speech activity, including speaking at public meetings,
writing and displaying flyers, signs, or newspaper articles critical of
public housing projects, even if they appear to advocate discriminatory
policies or positions.
The new policy sets forth complaint
handling procedures that must be followed by Department personnel to
ensure that citizens are not subjected to long investigations that have
the effect of stifling public criticism of housing policies.
The
Department agreed to adopt the new policy, seek to have it codified in
the California Code of Regulations, publish it on its website and train
employees in its use.
The dispute grew out of a 2006
housing discrimination investigation of Waltz that lasted for nearly a
year. Waltz had posted yard signs and expressed opposition in other
peaceful ways to the state's efforts to place sex offenders and other
individuals with a history of behavioral problems in residential group
homes, including homes in Phelan, and one next door to her home in
Norco.
Despite the fact that the complaint did not allege specific
facts constituting a violation of housing discrimination laws nor any
specific facts that would show that Waltz had illegally threatened group
home residents, Department officials inexplicably continued to
investigate her.
During the year-long investigation, state
investigators told Waltz that her speech violated state fair housing
laws, requested that she refrain from her speech activities, and
threatened her with prosecution. An investigator also told her that the
investigation would end if she removed signs from her yard objecting to
the next-door group home as well as signs posted by other people in her
neighborhood.
Waltz declined to remove the signs and instead
sued in 2008, seeking an injunction prohibiting DFEH officials from
engaging in investigations designed only to punish individuals for
speaking out against government housing policies. In addition, Waltz
sued Lillianita Brumfield, who handled her case, and other officials in
their individual capacities for damages for violating Waltz’s federal
constitutional rights.
Waltz commented, "I am pleased that
the Department has recognized the need to protect the free speech
rights of ordinary citizens to criticize and question housing policies
without being made the subject of prolonged discrimination
investigations. It is my hope that should any future investigations of
this type occur, government officials will recognize that their
authority does not supersede the United States Constitution. God Bless
America."
Waltz was represented by the Los Angeles, CA
firm of Munger, Tolles & Olson LLP, which donated its time pro bono
and the Center for Individual Rights (CIR). “This is an
important victory for free speech. The new policy will ensure that
citizens are not subjected to housing discrimination investigations
solely because they openly express viewpoints the government does not
like,” said Henry Weissmann, a partner at Munger, Tolles & Olson,
LLP who worked on the case.
CIR President Terence Pell
commented, “This was an egregious case of housing investigators using
their authority to harass and intimidate a citizen whose only crime was
speaking out in opposition to government policies. It would be difficult
to find a clearer violation of the First Amendment.”
CIR
has successfully represented California residents in other cases
involving the misuse of housing discrimination laws to silence criticism
of government housing policy. In two earlier cases, Affordable Housing
v. Fresno (2006) and White v. Lee (2000) the Court of Appeals for the
Ninth Circuit made unequivocally clear that citizens may not be
investigated or sued for housing discrimination solely because of their
public speech concerning government housing policies.
In both cases, the court found individual officials liable in their personal capacities for violating the clear constitutional rights of CIR’s clients.
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