The attorney defending Atherton and City Councilman Jerry Carlson in a federal lawsuit filed by Jon Buckheit is attempting to get a judge to rule, before the trial begins next year, that the plaintiff has no legal basis for his claim against Mr. Carlson.
Mr. Buckheit named the town and San Mateo County as defendants in his original lawsuit, but later added three Atherton police officers and Mr. Carlson -- the latter for allegedly retaliating against him because of his lawsuit.
The claim stems from Mr. Carlson's resistance to appointing Mr. Buckheit to the town's Finance Committee when the City Council appointed public members in April. Although three seats were open, only two applicants received the three necessary council votes.
Two, Mr. Buckheit and Alain Enthoven, received two votes each. Mayor Kathy McKeithen urged the council at that time to expand the number of public seats to four, and appoint both Mr. Buckheit and Mr. Enthoven, but the council majority declined to do so. Later, Mr. Buckheit was told by someone he trusts that Mr. Carlson said he wouldn't appoint him because of his litigation against the town, Mr. Buckheit told The Almanac.
"The government is not supposed to retaliate against people who air grievances," Mr. Buckheit said. "It's actually against the law -- the Civil Rights Act -- and for obvious reasons."
Jeffrey Vucinich, the attorney defending the town against the lawsuit, filed a motion of summary judgment last month to convince a judge that Mr. Carlson should be dropped as a defendant in Mr. Buckheit's lawsuit, claiming, among other things, that the councilman's decision not to support Mr. Buckheit's committee appointment "did not result in the requisite 'chilling effect,' as lawfully mandated for alleged civil rights violations brought under the First Amendment."
The motion also states that Mr. Carlson "is entitled to the defense of qualified immunity for his discretionary acts as a public official."
Although a court hearing on the motion had been set for Dec. 3, it was recently pulled from the court calendar, City Attorney Wynne Furth confirmed, although she said she couldn't provide more information because she is not handling the case.
Repeated calls to Mr. Vucinich went unanswered.
Ms. Furth was quoted in another local newspaper that the town plans to refile the motion next year.
Mr. Buckheit's lawsuit stems from his 2008 arrest during a domestic violence incident; he had called police out to his home to help during a dispute with his then-girlfriend in which he was injured.
The police arrested him instead of the woman, then refused to give him the police report on the incident until he sued to obtain it. When he did, he was stunned: In addition to a charge that he had been the aggressor during the incident, the report included a charge of child abuse against the girlfriend's young son.
Mr. Buckheit was never charged, and early this year obtained a declaration of factual innocence in Superior Court. During the court hearing, police officer Tony Dennis testified that he had not included the child abuse charge, although he had written the report.