Public Forum Law Week in Review: 4/25/08

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(CalAware Weekly comprises this plus the two previous posts)

Open Government

Columnist: Openness Key Issue in Supervisor Race      Los Angeles City Beat  columnist Alan Mittelstaedt says that if  Los Angeles County supervisorial contenders Bernard Parks and Mark Ridley-Thomas “intend to run on a business-as-usual platform, with one favoring business and the other labor ever so slightly, they both deserve to lose. The battle should be about open government and who is committed to doing the people’s work in full view of, well, the people. . . The current supervisors, even the best ones . . . too often agree to do the people’s business in secret away from the people.”

Code of Silence Led to Orange County Jail Scandal      The Orange County Register reports that grand jury documents released this month in connection with the beating death of a jail inmate show the arrogance that kept a wall of secrecy firmly in place around the Sheriff’s Department—“a wall that eventually crumbled under its own weight.”

Public Information

Council Mum on City Manager’s Mystery Exit     The Press-Enterprise in Riverside reports that some residents are outraged and demanding an investigation of the Hemet City Council’s continued refusal to explain reasons for the recent departure of former City Manager John Davidson after just 16 months in the job, at a total cost to the city of more than $330,000. At least one resident has told the council that he will ask the California attorney general’s office to investigate.

U.S. Islamic Group Fights “Killer Bullet” Privilege
     The Associated Press reports that an Islamic charity group in court in San Francisco is challenging the Bush administration’s record use of the state secrets privilege, dubbed a "killer bullet" because it would summarily end the group’s challenge to the lawfulness of warrantless wiretapping. The Al-Haramain Islamic Foundation contends that wiretapping in 2004 was the basis on which the Treasury Department that same year formally labeled the group a terrorist organization.

Police Union Wants Accusing Councilman’s E-mail
     The San Bernardino County Sun reports that the Colton Police Officers’ Association claims messages in Councilman Richard DeLaRosa’s city-issued e-mail account are being withheld following its official request for them, as well as a copy of an investigative report into allegations of misconduct by the former police association president, filed by DeLarosa last year but determined to be unfounded after an investigation. The association is considering filing a lawsuit against DeLaRosa.

Public Records Disclose . . .
    • new evidence that emergency crews were frozen with indecision while two divers drowned in the California aqueduct last year.

Free Speech

ACLU Says Student Anti-Gay Ideas Are Protected     The American Civil Liberties Union of San Diego and Imperial Counties reports that it has filed an amicus brief in U.S. District Court in Harper v. Poway Unified School District, arguing that the anti-gay t-shirt worn by a student to protest the school’s “Day of Silence” did not amount to harassment that the school was permitted to punish.

Parade Permit Law’s Terms Held Unconstitutional
      The Metropolitan News Enterprise in Los Angeles reports that the U.S. Ninth Circuit Court of Appeals has held that Long Beach’s parade permit ordinance violates the First Amendment to the extent that it:

  • requires a “special event” permit for any event involving 75 or more persons if the event “may require the provision of city public services in response thereto”;
  • requires 24 hours’ notice of a “spontaneous” event, that is, one that is held in response to a newsworthy event that occurred or was disclosed in the previous five days; and
  • requires that event organizers grant the city a broadly worded hold-harmless and indemnification agreement; and
  • • grants officials unbridled discretion as to whether or not to waive permit fees and charges for city services.

Free Press

Facts, Photos Scarce As Rodeo Bull Jumps Fence     When a one-ton bull vaulted an eight-foot arena barrier at the county fairgrounds and scattered the audience from its box seats, the press was there but . . . see if you can count the cringe moments for press rights.

Bill to Protect School Journalism Advisors Moves
      The California Newspaper Publishers Association reports http://www.cnpa.com/Leg/GA/legbul.htm that SB 1370, a measure that would protect high school and college journalism advisors from being disciplined or removed from their positions for refusing to censor stories published in student newspapers, was unanimously passed by the Senate Judiciary Committee and this week approved by the entire Senate on a vote of 35-2.

Open Meetings

County School Board Closed Session Challenged      The Ventura County Star reports that county schools Superintendent Charles Weis, leaving in June for another job, said Wednesday that he suspects the county Board of Education might hold an illegal meeting next week so it can discuss the succession process behind closed doors.  The Brown Act forbids a closed session discussion of an appointment to fill a vacancy in a normally elective office, as the Star points out in an editorial today.

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Senator Leland Yee (D-San Francisco) has just released a summary of the four bills he is now carrying that support free speech and open government. This array turns out to be remarkably solicitous for what we at Californians Aware refer to as public forum rights, to which we are dedicated, namely “people’s rights to find out what citizens need to know to be truly self-governing, and to share what they know and believe without fear or loss.”  In recent years the senator, who has earned the right to be thought of as ‘Senator Sunshine’ if that title wouldn’t embarrass him, has carried other measures to keep the public informed of the workings of government while protecting speech and press.

In 2005-06 his AB 775 would have would have required discussion of, and action on, a proposed pay raise or other benefit package for the highest-ranking University of California system or campus officers to occur in open session of the appropriate committee, and that any final discussion or action on the proposal take place in open session of the board of regents. The bill was sidelined in its final committee hearing, supposedly because of its projected implementation costs. A more successful bill in that session was AB 2581, which added public college and university administrators to the list of those prohibited from disciplining students for publishing or speaking that would be constitutionally protected in the general community off-campus.

As for this year, here is the Senator’s own summary:

Protecting Journalism Teachers and Student Speech
This week, the California Senate approved legislation to protect high school and college teachers and other employees from retaliation by administrators as a result of student speech, which most often happens when a journalism advisor or professor is disciplined for content in a student newspaper. With this vote, California continues to lead the way in making sure true freedom of the press is alive and well on our campuses. Senate Bill 1370 follows a 2006 law I authored to prohibit censorship of college press by administrators and protect students from being disciplined for engaging in speech or press activities. Allowing a school administration to censor in any way is contrary to the democratic process and the ability of a student newspaper to serve as the watchdog and bring sunshine to the actions of school administrators.
    It is quite disheartening to hear, that after we specifically prohibited prior restraint by administrators, that some are engaging in this type of nefarious activity and even firing quality teachers because of content in the student newspaper. Specifically, SB 1370 would prohibit an employee from being dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for acting to protect a student’s speech.
    There have been a number of documented cases throughout the state of journalism advisors being dismissed or reassigned due to student speech. In fact, my office has learned of cases in San Francisco, Los Angeles, Claremont, Fremont, Novato, Oxnard, Rialto, and Garden Grove.

  • A Los Angeles Unified School District case is one of many where a highly respected and successful newspaper advisor was removed from his position. In November 2006, the student newspaper published an editorial criticizing random searches conducted on campus. The newspaper advisor, Darryl Adams, was immediately removed after refusing to eliminate the editorial at the principal’s request. Adams was later removed as basketball coach and even as announcer for the football games. “In a span of four months, they all but stripped me of my professional existence,” said Adams.
  • Another case involved Janet Ewell, a Garden Grove tenured teacher and certified journalism educator, who was removed as newspaper advisor in 2002 despite her students winning numerous journalism awards. The school’s principal admitted to student reporters that he had removed Ewell as a result of editorials that ran in the school newspaper. The editorials focused on such issues as the school bathrooms, cafeteria food and a teacher who was unavailable to help students.
  • Ronnie Campagna, a journalism teacher of 18 years at San Marin High School in Novato, was removed in 2003 and replaced by a new teacher with no previous journalism experience after the student paper published stories critical of the administration. For example, one story criticized the school administration for not letting students stand up in the bleachers during varsity basketball games. The school board went so far as to attempt dissolving the entire program until parents protested and even offered to fund the class themselves.
  • In San Francisco, journalism and English teacher Katharine Swan was told that she must find a different school in which to teach after her students covered a first-year principal’s attempts to effect prior restraint and influence coverage of events occurring at the school.

Ensuring quality contractors, competitive bidding, and public access at UC
The Senate Appropriations Committee will soon consider legislation to ensure that the University of California contracts with responsible businesses and that there is a competitive bidding process every three years. In addition, SB 1596, the UC Responsible Contracting Act, requires the University to maintain a centralized database of contracts that is available for public review at each campus. In coordination with the American Federation of State, County, and Municipal Employees (AFSCME), I introduced the measure as a result of numerous reports of UC’s deficient and non-transparent contract bidding process. It was recently uncovered that a UC Santa Barbara contractor violated wage and hour laws. For more than a decade, UC Davis has failed to put out to a bid contract for food services. In fact, the same food service company has held the contract for over thirty years.
    Each year, UC spends millions of dollars contracting for the delivery of products and services, yet the campuses are not required to maintain a centralized database of contracts and contractor information. SB 1596 will require such information be readily available to the public at each campus, health facility, and laboratory.
In addition, SB 1596  will establish a contractor responsibility program which requires contractors wishing to be considered for an award of contract with the University to file a questionnaire covering areas of past bankruptcy filings, convictions, loss of permits or license, and the disclosure of past judgments for issues such as taxes owed. SB 1596 will also ensure competition by requiring all contracts be limited to three years terms and that upon completion of the term, the University shall solicit bids through a competitive bidding process.
    Amidst growing public scrutiny of a food service contract at UC Davis, the University recently announced a six year extension coincided with the announcement of a multi-million dollar investment in the campus by the same contractor. It is unacceptable that UC Davis has contracted with the same campus food service company for decades without putting the contract out to bid.         The cost to taxpayers and students as a result of this policy is immeasurable. Recently, UC Santa Barbara awarded a low-bid contract to provide painting services on campus. Unfortunately, the contractor declared bankruptcy and the employees were unable to cash their paychecks for painting services they had already provided the University. Wages owed to workers included approximately $90,000. SB 1596 is expected to prevent such events from happening in the future.

Providing Greater Access to Government Contracts
Recently, the California Senate approved legislation to allow greater public access to government contracts as well as audits and reviews of public agencies. Senate Bill 1696 would prohibit a state or local agency from allowing an outside entity to control the disclosure of information that is otherwise subject to the state’s Public Records Act. In addition, the bill would specify that regardless of any contract term to the contrary, a contract for the purpose of conducting a review, audit, or report between a private entity and a state or local agency is subject to the same disclosure requirements as other public records. The need for the measure arose from the denial of a January 2007 request by the San Francisco Chronicle to the University of California at San Francisco (UCSF). UCSF refused to release an independent review of its finances or even the name of the firm that was issued a contract for $165,000 to carry out the review. UCSF claimed the auditing firm controlled the confidentiality of the contract and the audit.

Assisting State Whistleblowers
California’s law to protect state employees who report waste, fraud, or abuse within state agencies, has done little to help Ruby Cornejo and Michelle Dille, two whistleblowers within the Department of Social Services (DSS). Cornejo and Dille, who had a combined 66 years of experience within the Department when they openly criticized a lax policy on criminal background checks for foster parents and childcare and senior home licensees, which they argued risked the lives of already vulnerable citizens. The vocal criticism didn’t sit well with the department’s management. Cornejo and Dille reported their criticisms to the Bureau of State Audits in January 2003, only to consequently be retaliated against by their superiors. According to Cornejo and Dille, they faced four years of “continuous and unabated hostilities, harassment, and retaliation from DSS management.” The response from DSS management is a clear violation of the California Whistleblower Protection Act, which is designed to protect civil servants from improper retaliation or intimidation and is supposed to provide a timely review and resolution of complaints regarding “waste, fraud, abuse of authority, violation of law, or threat to public health and safety.”
However, the State Personnel Board has still not reviewed or resolved the cases, and Cornejo and Dille have faced combined legal costs of approximately $500,000.
    As a result, I have introduced Senate Bill 1267 to increase and better define the legal rights of whistleblowers. State employees have a fundamental right to report without retaliation instances of waste, fraud, and abuse. Without whistleblowers, government works in a vacuum and is often not accountable to the people it is supposed to serve. SB 1267 will ensure whistleblowers are not subjected to years of administrative hearings at the expense of themselves and taxpayers.
    The cases of Cornejo and Dille are apparently not isolated. According to the State Personnel Board’s report to the Governor and Legislature, of the 106 whistleblower retaliation complaints accepted by the Board between 2003 and 2005, none were resolved in favor of the complainant. 58 of the complaints were denied, 5 resulted in a “stipulated agreement” and 42 were “still pending.” Not only do these delays result in unfair costs to whistleblowers, but they also result in burdens to the state, and in essence, render the current California Whistleblower Protection Act useless.
    SB 1267 would explicitly give whistleblowers the right to take their case to court if the State Personnel Board exceeds a 70 day timeframe in resolving the case; would prevent excessive timeframe extensions by requiring the personnel board to resolve cases within 70 days even if multiple complaints are consolidated into one investigation or hearing; would entitle the State and the injured party to seek reimbursement for their expenses, costs, and attorney fees when liability is established; and would provide protections for former employees, not just current employees.

When Court-Approved Secrecy Can Kill You

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Senator Herb Kohl (D-WI) described the problem well in his testimony last December 11 before the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights:

Far too often, court-approved secrecy agreements hide vital public health and safety information from the American public, putting lives at stake. The secrecy agreements even prevent government officials or consumer group from learning about and protecting the public from defective and dangerous products.
    The following example demonstrates how this issue arises and the devastating implications secret settlements can indeed have. Back in 1996, a 7-year-old boy in Washington State took an over-the-counter medicine to treat an ear infection. Within hours, he suffered a stroke, fell into a coma, and he died 3 years later. The child’s mother sued the drug manufacturer, alleging their product caused the stroke.
    Unknown to the mother and to the public, many similar lawsuits alleging harm caused by this very same medicine had been secretly settled. It was not until the year 2000 that the FDA banned an ingredient found in the boy’s medicine. If it were not for this court secrecy in the previous lawsuits, the boy’s mother may well have known about the risks.
    While this case is tragic, it is not unique. In these types of cases, the defendant requires the victim to agree to secrecy about all information disclosed during the litigation or else forfeit the settlement. That individual victim recovers the money that they need to pay medical costs, but, as a result, the public is often kept in the dark about potential dangers.

An even more dramatic account (in terms of the lives affected) involved faulty tires.

From 1992 to 2000, tread separations of various Bridgestone and Firestone tires were causing accidents across the country, many resulting in serious injury and even fatalities. Instead of owning up to their mistakes and acting responsibly, the company quietly settled dozens of lawsuits, most of which included secrecy settlements. It was not until 1999, when a Houston public television station broke the story, that the company ac-knowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late for the more than 250 people who had died and more than 800 injured in accidents related to these defective tires.

Kohl was introducing his Sunshine in Litigation Act, under which he said,

the proponent of a protective order must demonstrate to the judge’s satisfaction that the order would not restrict the disclosure of information relevant to public health and safety hazards.
    This legislation does not prohibit secrecy agreements across the board, for indeed there are appropriate uses for such orders, such as protecting trade secrets, and this bill makes sure that such information is kept secret. But protective orders that hide health and safety information from the public, in an effort to protect the company’s reputation or its profit margin, should not be permitted.

Legislation taking the same approach to the same problem has been attempted in California several times, but so far unsuccessfully.  Then Senator Bill Lockyer carried a bill in 1991 (SB 711) that was vetoed by Governor Pete Wilson. Eight years later Adam Schiff, then a Senate Democrat, introduced SB 1254, which passed its first committee but then met the fate described in a business attorneys’ newsletter.

Over 100 entities registered their opposition to the measure, and the opponents were not only those in the specifically-targeted industries — such as automotive and pharmaceutical manufacturers — but included businesses from every sector of California’s economy, from the entertainment industry, to high tech companies, to the wine industry.  Each opposing company recognized that the measure, if passed, would place all California businesses at risk of losing their confidential information to competitors with the filing of each new lawsuit, regardless of merit.  The opposition stalled the measure, and it was withdrawn without ever reaching a floor vote.

Similar efforts in 2001 by then Senator Martha Escutia of Los Angeles (SB 11) and Assemblyman Darrell Steinberg (AB 36) also failed to get the necessary votes.

Public Forum Law Week in Review: 4/18/08

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(CalAware Weekly comprises this plus the three previous posts)

Open Government

Editorial: Cop Unions’ Clout Accounts for Secrecy      The North County Times comments on the fact that one month later, the public knows more about a woman shot in a March 15 incident in Oceanside than it does about her self-confessed shooter, a police officer.

After Lawsuit, County OKs Public Records Training     The Willows Journal reports that the Glenn County Board of Supervisors has agreed to have top-level county personnel trained on handing public record requests following the third lawsuit this year by newspaper publisher Tim Crews—this time for refusing access to a death certificate.

Bill Barring Private Vetoes of Public Access Advances      California Chronicle reports that on a 33-1 bipartisan vote, the California Senate has approved legislation that would prohibit a state or local agency from allowing an outside entity to control the disclosure of information, including but not limited to an audit report, that is otherwise subject to the state´s Public Records Act.

Public Information

Assembly Won’t Release Golden Handshake Data     The Sacramento Bee reports that in the wake of claims that taxpayers could be ripped off by golden handshakes offered by the Assembly, the lower house refuses to release any financial projections or analysis of the offer it made last month to sweeten pensions of up to 222 aides if they retire this year.

Editorial: Officials’ Shield from Tickets Must End    The Marysville Appeal-Democrat calls for repeal of a little-known secrecy law that protects police, judges, elected officials and a wide variety of others on the public payroll from traffic tickets—an unnecessary law that some legislators are trying to expand to cover more public employees.

Editorial: Officers’ Names, Pay Must Stay Open      The Reporter in Vacaville opines that “An idea floating around Sacramento last week to shield police officers’ identities and salary information from public view seems to have been promptly and properly deflated. It should not be revived.”

City Sits on Traffic Impact Report re Target Store     A controlled development activist writing in the Scotts Valley Banner reports that the city is refusing to release a traffic impact report on a proposed 155,000-square-foot Target store—during a 30-day period for public comment on the project’s environmental impacts that ends April 30.  The city says the report is just a draft and that the public interest is better served by keeping staff comments confidential. (Note: The report has since been released after disclosure that it was already shared with Target representatives.)

County Won’t Release Jail Video of Late Inmate      The Eureka Times-Standard reports that Humboldt County has declined its second request asking for the release of video footage of a jail inmate in the hours leading up to his death last August. The County Coroner’s Office said the man died of blunt force trauma, but stopped short of determining the cause. The District Attorney, declining to prosecute anyone, said video footage of the man in custody shows him thrashing about violently, and possibly hitting his head numerous times on unpadded parts of his cell. The County Counsel justified withholding the video in that release would compromise jail security, putting both officers and inmates at risk.

County Won’t Release Report on Sheriff’s Acts     The San Luis Obispo County Telegram-Tribune reports that county officials have refused to release the findings of a liability investigation concerning the conduct of Sheriff Pat Hedges. The sheriff is being investigated by the state Attorney General’s Office for alleged illegal eavesdropping on Chief Deputy Gary Hoving in 2006. The county began its investigation into Hedges’ conduct in October after Hoving filed a $1.25 million claim against it.

University Won’t Release Probe of Department     The San Jose State University Spartan Daily reports that the campus administration, citing the privacy of the aviation department chair, won’t release a report paid for by the university based on an investigation of alleged problems within the aviation department, including accusations of mismanagement, incompetent professors and poor curriculum.

Public Records Disclose . . .

Free Speech

FCC Hears Internet Use Arguments at Stanford     The Palo Alto Weekly reports that the future of Internet use — and First Amendment rights to free speech, some said — was discussed at a roughly seven-hour hearing convened by the Federal Communications Commission with panels of experts at Stanford University yesterday.

L.A. Times Owner Accused of Speech Intimidation      A San Diego County Supervisor, writing in the online Voice of San Diego, contends that a company whose major shareholder is Sam Zell, the new chairman and chief executive of Tribune Co., which owns the Los Angeles Times, is suing her for defamation in order to silence her criticism of the company’s treatment of mobile home residents in her district.

Mayor  Firmly Enforces 2-Minute Comment Rule     The Santa Cruz Sentinel reports that the mayor has had his finger on the city hall microphone’s "off" switch lately to ensure constituents comply with new rules limiting public comments at council meetings to two minutes per speaker per topic.

Council Members Can Respond to Citizen Remarks      The Contra Costa Times reports that Richmond City Council members now can respond to "erroneous" charges leveled against them by speakers during public meetings, a new policy that some say detracts from the spirit of open forum.

Bill Would Crack Down on Animal Rights Protest      The Contra Costa Times reports that the University of California has gone to the Legislature seeking to restrict public access to information about academics and corporate researchers who use animals in experiments and to make it illegal to post personal information about them online. The prohibited online information would include the researchers’ names, home addresses and photographs.

Cop Rating Site Gets Mixed Reviews Near San Diego     The North County Times reports that RateMyCop.com http://ratemycop.com/index.php?st=CA, which lists the names of thousands of officers nationwide and lets visitors anonymously post comments about them, may be satisfactory to many but in the northern San Diego County area is excessive from the standpoint of law enforcement agencies and inadequate from the standpoint of those seeking consistent monitoring of police performance.

Comment: No Censorship of Intelligent Design Ideas     Writing in the Los Angeles Times, the publisher of Skeptic  magazine says that the new Ben Stein movie “Expelled” is wrong in virtually every one of its factual claims about the alleged persecutions of those who challenge the theory of evolution.

Free Press

Senate Panel OKs Shield for Journalism Advisors       The San Francisco Chronicle reports that a state Senate committee has approved proposed legal protections for high school and college journalism teachers after hearing instructors’ complaints of retaliation for hard-hitting articles in student newspapers.

Coping with Immigrant Communities’ Taboos       La Opinión reports that ethnic media journalists met in Los Angeles recently to discuss how to confront conflicts with their own readership communities’ political and cultural sensitivities.  For example, since Nguoi Viet in Orange County published a photograph in January depicting the colors of the South Vietnamese flag in the reflection of a footbath, Vietnamese have violently protested the paper, saying the image desecrated the flag.

Open Meetings

College Board Keeps Ballots on Hiring Secret      The Santa Barbara City College Channels reports that in its decision on hiring a new president, the college’s board of trustees apparently violated California’s public meeting law by withholding the tally on both the preliminary or “straw” votes and the final formal vote.

Closed Hearing Sought for Non-sworn Officer     The Bay Area Reporter reports that a lawyer for a “patrol special officer”—a business security guard who is not a peace officer—has asked the San Francisco Police Commission to close a hearing into charges that the officer improperly appointed another person to the patrol without authority.

Council Allows Citizens’ Electronic Presentations      The North County Times reports that after a spirited debate about technology and free speech, the Escondido City Council has voted 4-1 to allow people to use DVDs, slide shows and other electronic displays when they address the council,??reasoning that it should be the First Amendment right of people to use multimedia materials to bolster whatever case they are making on an issue.

Sunshine Amendment Eclipsed

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The California Court of Appeal has just published an opinion concluding that Proposition 59, the open government constitutional amendment enacted by voters in November 2004, did not eliminate a common law privilege insulating legislators from inquiry into their thought processes.  The issue was raised when a cardroom, suing the city of San Jose to invalidate an ordinance which the proprietor claimed created illegal burdens on its operation, alleged that the city council’s motive was to ruin its business. 

To try to prove this intent it made a discovery demand for a wide variety of documents in the paper trail of the ordinance’s adoption.  The city sought and obtained a protective order allowing it to withhold some of the documents, citing what the Sixth District Court of Appeal in its just published opinion in Sutter’s Place v. Superior Court (City of San Jose), called “the mental processes principle (precluding judicial inquiry into the motivation or mental processes of legislators in enacting legislation).” 

The cardroom’s appeal argued that Proposition 59 had in effect repealed this principle because it preserved in force only statutory and constitutional limits on access to information (not common law limits), and because there was an intent to abolish the deliberative process privilege, a related common law limit on access to information, as shown in the proposition’s ballot argument favoring public understanding of the deliberative process.

While there are a number of arguments to be made (and surely will be, on appeal to the California Supreme Court) why the opinion in Sutter’s Place is wrong, a central issue seems to be that this court, like several before it since passage of Prop 59, has read its positive access provisions narrowly—all but dismissively—and its allowance for limits on access broadly.  This interpretive approach is in flat contradiction to Prop 59’s own language, which states in part: “A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

Is Proposition 59 a reflexive meta-rule that dictates how its own provisions are to be interpreted? If so, the opinion in Sutter’s Place is fatally defective.

Or is it just one more rhetorical sentiment that open government is desirable—a sentiment overlaid without effect on a hard ground riddled with secrecy? If so, the four out of five voters who approved adding it to the state constitution were wasting their time.

Another Barrier to Disclosing Police Misconduct

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As remarked in today’s editorial by the North County Times in San Diego County, peace officer unions and professional organizations have wielded their influence over elected officials to ensure that, by law, essentially no information about officers’ abuse of their powers and privileges reaches the public eye other than in the rare court proceeding, through disclosures made in criminal prosecutions of lawsuits for alleged offenses such as excessive force.

Now a recently introduced bill would shut even those infrequent litigation windows further.  As explained by San Francisco Public Defender Jeff Adachi in a guest commentary in The Recorder newspaper,

AB 2377,  introduced by Assemblywoman Mary Hayashi, D-Hayward . . . would make it more difficult for criminal defendants – and plaintiffs in civil cases involving police misconduct – to obtain access to complaints made by the public against police officers. Police and sheriff’s departments are required to keep and maintain records of officers and deputies who are accused of police misconduct. Since 1974, a party seeking records pertaining to a particular officer need only make a "plausible showing" that the officer engaged in misconduct towards them. AB 2377 overturns this 35-year-old precedent and instead requires a party seeking such records to show an "internally consistent plausible scenario" of misconduct that is "substantially credible."
        As one might imagine, in cases where police abuse is alleged, it is common that the police version differs substantially from that of the accused. Thus, a person charged with resisting arrest, who claims that the officer used excessive force, might seek complaints of prior incidents where the officer used excessive force. Presently, these records are produced so long as the litigant swears, under penalty of perjury, that the officer used excessive force against him or her. AB 2377 would prohibit the disclosure of such records unless the citizen proves that his or her version of the events is more credible than the version offered by the police. By setting forth a standard that requires the judge to find the civilian’s version of events more credible than the officer’s version, AB 2377 unduly limits the disclosure of police misconduct records.
        Supporters of AB 2377 claim that changes in the law are needed to protect officers’ privacy rights. However, current law requires a judge to review police misconduct records outside the presence of the parties to ensure that only those records that are relevant to the proceeding are ordered produced. Litigants must agree not to disclose the records to anyone, and to only use the records in connection with the case. This well-worn procedure amply addresses any police privacy concerns. Furthermore, the proponents of AB 2377 do not point to a single instance where an officer’s right to privacy was violated by the current procedure. Instead, they merely argue that police misconduct records should not be produced where a judge views the officer’s version of events as more believable than that of the citizen’s.

The bill is in the Assembly Public Safety Committee, where it shows little momentum. It has been withdrawn by the author from being heard twice so far in the past two weeks.

Opening Up Those Sealed Court Files

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What is revealed in statements made and documents filed in court proceedings can be a vital window for the public on what everyone would agree is news in the best sense—not just novel or sensational events but matters of genuine and lasting public concern. 

Many of these matters are found not in those trials or hearings feeding our primitive fascination with violent crime or in celebrity marital conflicts, but even more in the less riveting proceedings involving white collar crime or civil lawsuits within the business sector. The evidence entering the record in these latter cases tells us things about the real world that we would seldom discover outside the crucible of a court proceeding. Moreover, how the disputes are resolved tells us a great deal about not only Who Wins but Why—who gets what (or doesn’t) under our legal system. 

For these and other reasons the U.S. Supreme Court, in its landmark decision, Richmond Newspapers v. Virginia, held that the First Amendment dictates that at least criminal proceedings in court can be closed to the public only in extreme circumstances—and then only to the limited degree necessary—to avoid irreparable damage to the accused’s right to a fair trial by an impartial jury. Since then the California Supreme Court has applied the same reasoning to reach the same conclusion about civil lawsuits: that under the First Amendment and our own state law, the public can be kept out of the courtroom only under the most extraordinary circumstances—when failing to do so would mean almost certain injustice.

Pursuing this logic, California’s Rules of Court have been amended to forbid the sealing of most court documents without a showing that public access would cause serious harm to the rights—not just the interests or preferences—of at least one of the parties.  Any person may file a motion in court to have a document sealed in violation of these rules unsealed.

But such motions, typically filed by news organizations trying to document a story with court records, often take so long to litigate that the information gets unsealed only after the related story is history.  And paying an attorney to go to court to free up what never should have been secret in the first place is a serious barrier even to larger newspapers; it makes getting at the truth an expensive luxury for them, and a formidable investment for smaller papers, to say nothing of fact-seeking bloggers or other individuals.

Accordingly, the California Newspaper Publishers Association is sponsoring a bill, AB 2379 by Assembly Member Noreen Evans (D-Santa Rosa), that would address the delay and cost barriers.  It would provide that:

  • any motion to unseal allegedly improperly sealed records would be subject to immediate writ review in the court of appeal, which would mean a relatively rapid appellate decision for or against the person making the motion; and
  • the person successful in obtaining an appellate order to unseal improperly sealed records would be entitled, at the court’s discretion, to the recovery of attorney’s fees and costs from the party whose initiative had caused the records to be sealed.

The bill’s sole opponent is the Civil Justice Association of California (formerly known as the Trial Lawyers). The Assembly Judiciary Committee analysis spells out the background to the bill, which shows is offered to show why the reform is needed.

According to the sponsor, the California Newspaper Publishers Association (CNPA), the need for this bill is illustrated in a recent case involving the efforts of a small newspaper, the Berkeley Daily Planet, to unseal court records in a class action suit against Wal-Mart for alleged denial of meal and rest breaks to its employees.  In that case, Wal-Mart successfully moved the court to conditionally seal over 17,000 documents.  In August 2004 the newspaper, which was covering the story, filed a motion charging that many of the documents had been improperly sealed and sought a court order unsealing the documents.  Although the appellate court finally ruled in favor of the Berkeley Daily Planet—agreeing that the documents had been improperly sealed – it did not render its verdict until April of 2007.  By this time, almost three years had passed and the story was no longer newsworthy.  . . . This bill also seeks to address a second problem illustrated by the Berkeley Daily Planet case. Even though the newspaper had belatedly prevailed in its effort to unseal the court records, the court ruled that the newspaper could not recover attorney’s fees under the private attorneys general statute (Code of Civil Procedure Section 1021.5).