Like most politicians, Eighth District City Councilman Juan Vargas hungers for publicity, but Vargas may regret one occasion when the press gave him the attention he asked for.
A little over a year ago, Vargas called a news conference to denounce a federal court verdict that awarded some $200,000 in civil damages to Thad Poppell, a 63-year-old sex-club operator. Poppell had sued the city for violating his civil rights by harassing him and his patrons. Vargas joined a chorus of outraged commentators, who belatedly learned of Poppell's victory several months after it happened and some four years after Poppell filed his case.
It was an outrage, Vargas told a reporter from the Los Angeles Times, for the city to be forced to pay damages to "a man who infests our community with nothing more than shaded prostitution and drugs."
Problem is, Poppell was never found to have practiced prostitution or to have dealt drugs in the neighborhood the San Diego Police Department calls Stockton. In fact, police detailed to watch Poppell's club at 3488 E Street reported a marked absence of such activities.
On April 15 of this year, Poppell took the remarkable action of suing Vargas for defamation, saying that Vargas had falsely accused him of committing crimes of which Poppell was demonstrably innocent. Moreover, Poppell charged, Vargas either lied outright when he made his accusation or willfully chose to ignore the truth. Poppell has asked for damages to be specified later.
For Vargas to be sued for defamation for something he said as a city councilman is the legal equivalent of a one-in-a-million shot. Public officials enjoy broad free-speech protections under the California and federal constitutions. Assistant city attorney Frank Devaney, the lead attorney on the Vargas case, could recall only one other such suit in the past ten years or so -- and that was also against Vargas. That case, like most defamation suits against public officials, died an early judicial death.
Poppell's case is still alive, having survived its first major challenge with a September 26 finding by Superior Court Judge Anthony C. Joseph. In a sign that bodes ill for Vargas, should the case go to trial, Judge Joseph went so far as to "editorialize" (as he put it) from the bench about citizens' distrust of elected officials.
At issue was a motion by Devaney to have Poppell's complaint thrown out as a SLAPP suit, a Strategic Lawsuit Against Public Participation. A SLAPP suit is an action intended to stop the defendant. A plaintiff who is found to have filed one must pay the other side's legal costs and, possibly, additional fines. In the earlier defamation suit against Vargas, the city's threat to file a SLAPP suit motion was enough to convince the plaintiff to withdraw.
In the SLAPP suit motion, Devaney argued that Poppell had no chance of winning and so had filed his case with the sole intention of harassing Vargas. Devaney cited a number of reasons, but the primary one was that Poppell should be considered a public figure and as such would not meet the much higher standards needed for a public figure to prove he was defamed. (Devaney maintained throughout that Vargas's statement was not necessarily false.) If Poppell were permitted to take his suit to trial, Devaney added, it could have a chilling effect on local officials' ability to speak out on public controversies.
On September 19, Judge Joseph responded with a preliminary written ruling denying Devaney's motion. "Plaintiff established a probability of success on his claim," the judge wrote. Moreover, the questions of the truthfulness of Vargas's statement and Poppell's status as a public figure were strong enough to warrant going ahead with a trial, he declared.
At the request of Devaney and Dan Lawton, a private attorney who is co-counsel for Vargas, Joseph heard them plead their case in person on September 26.
After repeating the arguments that Poppell was a public figure and that Vargas had good cause to make the statement he did, Lawton warned that a ruling against Vargas would "muzzle" public officials, according to a transcript of the proceedings.
"This lawsuit is being watched closely at city hall," he said. "There is good reason for that. Who wants to be dragged through the expense and stress and sleepless nights?... Mr. Vargas has to speak out to do his job. He does it harshly sometimes. He does it intemperately sometimes. He did it harshly and probably intemperately in this case." But as a public official speaking about a public figure, Lawton concluded, Vargas's comments weren't defamatory.
"[T]his notion that somehow Mr. Vargas or his colleagues will be silenced when held to slander laws...is just a sad argument," Poppell's attorney Mike Marrinan retorted when his turn came to speak. "Even Mr. Vargas in his declaration recognizes -- as he should, he is a lawyer -- that there are limits on what he can say. Everybody knows that you cannot accuse somebody of a crime when it's false and you know it."
Joseph honed in on the question of Vargas's role as an elected official in his closing comments before reaffirming his ruling in Poppell's favor. "The argument that draws from me the strongest reaction is the argument about how we are somehow shutting down public officials by allowing this lawsuit to go to trial," he said. "And I am going to editorialize, although it probably is questionable whether I should.
"What is the percentage of people voting these days? Why don't our kids vote? Why do they feel that everyone elected to office is questionable...don't trust them? You cannot listen to what public officials say and accept it as truth....
"It would seem to me that government officials would want to be very careful in the way they speak, because...they owe it to themselves and the people who they serve with to speak honestly, correctly, with force where necessary...but not to slander individuals. They don't need that. They have the power of public officials."
Joseph went on to mention the campaign fundraising investigations on Capitol Hill and how people aren't surprised at the seeming corruption. He ended by getting "off my soapbox."
After assuring both sides he'd be fair to them if the case went to trial, Joseph made one final assertion that he wanted "on the record," the transcript says. "I believe there is no one from the media in this courtroom. It's...one of the reasons that I felt free to address the parties in the way in which I did. I don't think there's any media here at all. I'm quite sure of that. Thank you."
On October 24, Devaney and Lawton filed an appeal of Joseph's ruling with the Fourth District Court of Appeal. As such actions go, they couldn't include any new arguments; they merely restated their case and pointed out errors they felt Joseph made.
This time, though, they cited Joseph's "soapbox" comments. "The trial court's inflammatory 'editorializing' provides further basis for immediate reversal," they wrote. "The trial court openly stated that 'you cannot listen to what public officials say and accept it as true,' " which may be a misinterpretation of what Joseph meant. "This cryptic statement," they continued, "is cynical commentary by a judicial officer presiding over a case in which the defendant is a public official wrongly accused of defamation. The trial court's unsubstantiated opinion concerning the general veracity of public officials at large should have nothing to do with this case."
But if the case does come to trial, it inevitably will. And if ever two adversaries would seem to deserve one another, Thad Poppell and Juan Vargas do.
Poppell has engaged in a running war with low-level bureaucrats and officials since he moved to San Diego from Florida in the mid-'70s. A retired butcher, Poppell speaks with a faint Southern drawl.
He declined to be interviewed for this story, but elsewhere over the years he has described himself as a "liberal" whose avocation since boyhood has been the natural enjoyment of sex and the human body. "It teaches people they don't have to cheat," he said about his E Street sex club in a December 1996 Associated Press story. "They can be open and honest -- and care about people's needs."
In the past, Poppell has couched his "swingers" clubs -- where adults pay an entrance fee to have consensual sex with whomever -- as churches, and in one instance, as a health club. But Poppell was repeatedly shut down for zoning violations. In 1983, he was convicted of operating a brothel in Solana Beach. By the time he bought the site of what would be Thad's Social Club on E Street in 1991, however, he had mastered the zoning rules and anti-prostitution laws.
Poppell still lives on E Street. Parked outside is his late-model gold Mercedes with vanity plates that spell "POPPELL." But the scene is more hillbilly hollow than Playboy mansion: rusting discarded appliances and broken-down chain-link fences are the rule, not electronic gates and grandiloquent statuary.
In contrast with Poppell's sexual libertarianism, Vargas plays up his Catholic background and spouts conservative social values, scolding homeless advocates, for example, for encouraging freeloaders.
A critical point in the case is whether Vargas had any factual basis for his assertion that Poppell had "infested" the community with drugs and prostitution. "I personally walked the 3400 block of E Street...in 1992, soon after [the club] had ceased operating, when I [was] seeking election to the U.S. Congress and later the San Diego City Council," he said in an August 1 declaration filed with the court. "A number of residents told me about the plaintiff's club, how its operation had disrupted the neighborhood and disturbed the residents, and how relieved they were when it closed. Various citizens specifically told me that patrons of the club would litter the block with, among other things, used condoms, needles, and syringes...."
But Vargas has yet to produce one person who made those charges to him. "We're looking for that," Devaney said last week. On a further odd note, the area that Vargas claims to have canvassed is almost bereft of residents. And according to surveys conducted by Poppell, the few people who do live there have never heard of Vargas.
"The fact that these needles and syringes were found in the 3400 block of E Street only on Saturday and Sunday mornings, after plaintiff's club had operated on Friday and Saturday nights, respectively," Vargas notes in the declaration, "led me to the conclusion that plaintiff's patrons were using illegal drugs on those nights. It was that conclusion that led me to make the alleged defamatory statement attributed to me....
"Mr. Poppell infested the neighborhood with drugs as certainly as the owner of a flea-ridden dog infests his neighbor's house with fleas when he brings his dog over to visit. The fact the dog owner himself doesn't have fleas is irrelevant. Drugs infested Mr. Poppell's neighborhood while he operated his club there."
As for the prostitution charge, Vargas's logic is equally self-referential. Devaney wrote in one court filing, "A police officer's or a bureaucrat's conclusion [that Poppell's club was legal and not a brothel] does not in the slightest diminish Mr. Vargas's freedom to opine about whether such 'activity' amounts to shaded prostitution. Mr. Vargas, a trained lawyer, believes that it does."
For now, it's up to the Fourth District Court of Appeal to decide whether Poppell and Vargas will meet head to head in court. Last week, the court asked Poppell to respond to Vargas's request that it overrule Judge Joseph. Marrinan said he would file his reply by the November 21 deadline.