A Contra Costa County Superior Court judge has issued a temporary restraining order against Mayor Tom Butt. The order was granted on December 7th, after the court reviewed a petition filed by the City of Richmond. The petition alleged that Mayor Butt “has willfully and flagrantly violated the City’s privilege,” and that his multiple disclosures on his E-forum constitute a violation of both attorney-client privilege and his duties as enshrined in Charter of the City of Richmond.

The City’s petition asserts that, “despite these clear legal mandates and duties, and despite warnings and requests from the City Attorney to comply with his duty as a City official,” the Mayor has refused to remove privileged information from his E-forum. 

In her order, Judge Jill C. Fannin responded,

“The Court, having found that:

a) Petitioner and Plaintiff City has demonstrated a likelihood that Respondent and Defendant Mayor Butt’s unauthorized disclosure of the City’s attorney-client privileged communications is unlawful and exceeds the scope of Mayor Butt’s authority;

b) There is likelihood that the City will suffer irreparable harm if Mayor Butt is permitted to continue to disclose, without authorization, the City’s attorney-client privileged communications during the pendency of this action;

YOU ARE HEREBY IMMEDIATELY ORDERED RESTRAINED AND ENJOINED 

from continuing to post or otherwise disclose, transmit, or divulge on your website, www.tombutt.com, the City’s privileged and confidential written attorney-client communications you disclosed, without authorization, on your website on November 5, 2021, and again on November 16, 2021” [emphasis mine]. 

In a separate filing, the City provided a memorandum supporting its petition for a restraining order against the Mayor in detail. Here are some key points from the 17-page document supporting the petition for the restraining order:

The document provides a four-page description, entitled “Factual Background,” of the events leading to the City’s request for a restraining order against the Mayor. Details are provided about several posts made on Mayor Butt’s E-Forum, which publicize attorney-client privileged information about ongoing federal litigation. Description of subsequent actions taken to intervene were also provided, including two Cease and Desist letters from the Office of the City Attorney and a resolution passed by the City Council to censure the Mayor.

The bulk of the filing goes on to make the legal argument supporting this restraining order. The major points are as follows: 

1. Mayor Butt's ongoing unlawful disclosures, as well as his stated intention to maintain this practice, inflict immediate irreparable harm on Richmond. Part of this argument is that even the threat of violating attorney-client privilege “constitutes irreparable harm,” both to litigation the City is currently dealing with and the established jurisprudence doctrine of attorney-client privilege itself. 
2. Restraining orders are granted based on two criteria: that the plaintiff (in this case, the City of Richmond) is likely to win their case in a trial; and that the harm that Mayor Butt may cause without the restraining order is higher than the harm he will suffer if he has to deal with the restraining order.
3. The memorandum argues that the City is likely to win its case in a trial against Mayor Butt because he disclosed written communications on his E-forum that were clearly marked “CONFIDENTIAL COMMUNICATION” (although he removed these official notations from the posts he put on his blog). This is illegal.
4. The memorandum indicates that the harm will be higher to the city if Tom Butt is allowed to continue posting online. The Mayor’s actions can cause “irreparable injury” by “unfairly and improperly giving the opposing parties in ongoing, sprawling federal litigation complete insight into the City’s legal thinking and strategy, harm from which the City cannot recover” [emphasis again mine]. 

The Mayor and his supporters have indignantly maintained that the City’s actions against his confidential disclosures are a violation of his First Amendment rights. The memorandum counters this argument. Using federal and state case law, the City reminds the court that the Mayor “may benefit from the First Amendment’s shield only when they themselves are not involved in prior wrongdoing involving the communications in the first place.” 

The Mayor must submit opposition papers by December 16, and a hearing will be held on January 5. 

Further reading on the basics of the Brown Act issues involved can be found here.