Public Forum Law Week in Review: 8/28/08

Images11Open Government

City to Post Candidate Finances on Web
San Luis reports that, hoping to build public trust and improve the election campaign process, Atascadero is the first local city to post state-mandated donation and financial declarations online.

Bill Would Make Judge Vetting More Public
California reports that the Legislature has passed and sent to the Governor AB 2095 
by Assemblyman Mike Davis (D-Los Angeles), which would require
governors to disclose the names of individuals who assist them in
choosing judges—a list of advisors that up to now has been kept secret.

Public Information

Court: Some Legislative Secrecy Lawful
The Metropolitan News-Enterprise in Los Angeles reports that the California Court of Appeal has upheld a trial court ruling that the Legislature did not violate the Legislative Open Records Act by refusing to disclose various documents, including e-mails pertaining to the decision to require that all work on a project designed to enhance Capitol security by controlling access to the building and grounds be done under union contract. 

District Mum on Probe of Sidelined Manager
The Palm Springs Desert Sun reports that officials with the Coachella Valley Mosquito and Vector Control District have known for about a month whether an investigator found evidence of misconduct by the agency’s general manager, who remains in his sixth month on paid administrative leave; this week, district officials refused to make public the investigation's results.

Constituent Contact Information Withheld
The San Francisco Bay Guardian reports that the Clerk of the San Francisco Board of Supervisors has quietly begun redacting contact information—including phone numbers, street addresses, and e-mail addresses—from all communications sent to the supervisors by members of the public.

Paper Decides to Keep Names off Pay Lists
The editor of the Marysville daily Appeal-Democrat says that after considerable outcry from those affected he has decided to leave the names of rank-and-file employees off a database of local government salaries to be placed on the newspaper’s website.

State Bar Responds to Suit for Exam Data
The Metropolitan News-Enterprise in Los Angeles reports that the State Bar of California is arguing in papers filed with the California Supreme Court that personal and academic information about bar examination applicants cannot be released to a UCLA researcher, even if stripped of their identities.

Public Records Disclosed Reveal . . . 

  • that Chula Vista's highest ranking executive has been reprimanded for his computer usage and asked not to retaliate against employees who reported his looking at “inappropriate images” while at work, according to the San Diego Union-Tribune.
  • that federal investigators have requested Oakland city records in a probe apparently centering on allegations of City Hall nepotism and fraud under the recently fired city administrator, reports the San Francisco Chronicle.

Free Speech

Court Rejects Mall’s Limits on Union Picketing
The San Francisco Chronicle reports that a federal appeals court has ruled that California shopping malls can't prohibit union members from carrying picket signs, standing on sidewalks or picketing during the peak holiday season.

LAPD Rousts Park Petitioners: Where’s ACLU?
Walter Moore, Blogging on City Watch, asks where the ACLU is in the wake of an August 17 police raid on signature gatherers for a proposed “Jamiel’s Law” in a public park, denying their right to be there and telling them they would have to approach people door to door instead.

City Blocks Staff’s Access to ‘Political’ Blogs
The San Francisco Chronicle reports that Vallejo's city manager has barred city employees from reading two local blogs that focus on the city's descent into bankruptcy, adding the Vallejo Times Herald's local news blog and the Vallejo Is Burning website to the list of Internet addresses employees cannot access from city computers.  The Times Herald reports that a third site has also been blocked and that the city manager has stopped denying that the decision was his.

Watchdogs: Political Speech Needs ISP Respect
The Electronic Frontier Foundation reports that it and the ACLU of Northern California are urging Internet service providers to take extra precautions before pulling the plug on political speech by their customer websites in response to complaints or controversy. They also ask owners of copied content to “count to ten” and look at the fair use principles in copyright law for some guidance before firing off a complaint.

Judge: Fair Use an Issue in Takedown Demands reports that, in the nation's first such ruling, a federal judge has said copyright owners must consider "fair use" of their works before sending takedown notices to online video-sharing sites. The doctrine permits limited use of copyright materials without the owner's permission.

Pact: Laborers Can Seek Work from Curbside
The Associated Press reports that a settlement between day laborers and the Orange County sheriff's office calls for authorities to acknowledge workers' rights to stand on sidewalks and seek work without being harrassed, according to attorneys for the laborers.

Some Internet Firms Wary of Challenging China
The Financial Times of London reports that although the board of directors of the California First Amendment Coalition includes Google’s associate general counsel and the vice-president and editor in chief of Yahoo News, the organization’s effort to have China’s Internet censorship declared a violation of international trade law has not won uniform industry support.

Free Press

Photographer Sues after Detention by Police
The San Francisco Chronicle reports that an Oakland Tribune photographer has filed a federal civil rights lawsuit against the city of Oakland, saying police illegally barred him from taking pictures at a freeway crash scene and handcuffed him when he persisted.

Publishers Protect Journalists in Researcher Bill
The California Newspaper Publishers Association reports that it has obtained an amendment to the latest version of AB 2296—a measure to protect animal and other academic researchers from threats or acts of terrorism—that would prevent a researcher from seeking an injunction against anyone employed or contracted as a journalist for a newspaper, broadcaster or news service. The amendment, CNPA says, is intended to safeguard newspapers and journalists from potentially frivolous litigation associated with stories about animal research.

Google Says Property Incursions No Trespass
The Santa Rosa Press Democrat reports that, in a sweeping legal claim, Google recently stated it has the right to enter private roads and driveways to take photographs of people and their property, and then publish the images online for their “Street Views.”  Some media lawyers are not so sure.


Public Forum Law Week in Review: 8/5/08

Open Government

Bill: Secret Changes to Executive Orders
Steven Aftergood of the federal agency watchdog site Secrecy News reports that the President would no longer be able to secretly modify or revoke a published executive order if a new bill introduced in the Senate last week becomes law. The Justice Department, in an unreleased opinion, says there is no law now preventing presidents from quietly changing or abandoning published orders.

Public Information

Supervisors Still Mum on Hospital Staff
The Los Angeles Times reports that Los Angeles County supervisors continued last week to refuse to release details about 17 employees who worked at Martin Luther King Jr.-Harbor Hospital despite having serious criminal histories or lying about their records.

Public Records Disclosed Reveal . . .

  • that just before retiring in early May, the former Redding Convention Center and Visitors Bureau manager was investigated for cussing out his employees and for excessive drinking during after-hours events, according to a report in the Redding Record Searchlight.
  • the objections that San Diego County employees raised as they sought to opt out of performing gay marriages prior to the unions’ becoming legal June 17, as reported in the San Diego Union-Tribune.

Free Speech

Top Schools Insist on Freedom of Research
The San Jose Mercury News reports that, caught between the demands of academic freedom and national security in a post-Sept. 11 world, the Bay Area's two major research universities are walking away from lucrative research contracts rather than consenting to intrusive restrictions on their work.

Indictment of MySpace Cyberbully Faulted
Jon Healey reports in the Los Angeles Times Opinion L.A. blog that three consumer advocacy groups and 14 law professors have urged a federal judge in Los Angeles not to let federal prosecutors pursue an indictment of the Missouri woman whose online prank caused a 13-year-old acquaintance of her daughter to hang herself in 2006, unable to cope with the verbal abuse suddenly heaped upon her by a supposed friend on MySpace.

Free Press

Governor Gets Student Press Advisors Bill
The San Francisco Chronicle reports that the state Senate has sent Gov. Arnold Schwarzenegger legislation prohibiting administrators from retaliating against high school and college journalism teachers when their students publish stories or comments offensive to the officials but protected by law.

LAPD Chief Cool on Proposed ‘Britney Law’ reports that the sponsor of a proposal to rein in aggressive celebrity photographers is meeting resistance from Los Angeles Police Chief William Bratton, who argues that it would be difficult to enforce and that existing laws can keep unruly packs of photographers in check.

State Lawmakers All Back Federal Shield Law
California reports that the California State Legislature last month unanimously passed a resolution calling on the Congress to enact a shield law to protect journalists from having to reveal confidential sources to federal grand juries or face jail terms for contempt.

The Sacramento Bee reports that some convicted killers awaiting execution at San Quentin—including those who murdered Laci Peterson and Polly Klaas—communicate with the public through their own Web pages, provided by the Canadian Coalition Against the Death Penalty.

The prisoners have no direct online access; their messages and images are instead taken from letters they mail out to friends and supporters, who in any event could if they wished create much more attractive, informative and current pages than the very crude examples afforded on the Canadian site.

A spokeswoman for the California Department of Corrections, Terry Thornton, is quoted as acknowledging that prisoners have free speech rights that cannot be infringed, but that "Our concern is that they don't revictimize people, don't harm people in any way."

“Revictimize” is a neologism coined by various social and political scientists (and victim cults) meaning, roughly, to add verbal insult to criminal injury by reminding the victim of the original offense. In one extreme form it implies that any public discussion by the offender of the offense is a needless and deliberate assault on the sensibilities of the offended. In its most extreme form it means that any public discussion by anyone about and involving the offender in some sense repeats the injury to the offended, and is likewise to be avoided.

It is that latter sense of the term that the Department of Corrections adopted under Governor Pete Wilson in the mid-1990s to justify ending the policy, then in effect since the 1970s, allowing journalists to arrange face-to-face interviews with willing inmates as well as to receive unopened mail from them. The department’s rhetoric at the time stressed the need to avoid giving publicity to particular inmates, an exposure which might 1) make them “big wheels” in the prison population, fomenting intramural envy, tension and even violence; and 2) “glamorize” the offenders and thereby “revictimize” those their crimes had injured.

Neither anecdotal reports at the time nor any academic research then or since has established any validity to these essentially political claims.

Since then, every governor has vetoed legislation to restore journalists’ previous access at least once, and Governor Schwarzenegger has killed four such bills, parroting the revictimization cant of the 1990s censors. His most recent veto message, dating from just over a year ago, promised to address media access concerns through new regulations then being considered, but there have been no amendments to the interview ban since 1997. The irony is thus that while even the most unrepentent murderer can if he wishes feed his appetite for public attention with an Internet showcase for his own uncontradicted reflections, no professional journalist can interview him—about anything—unless stumbling into him on a random walk through the institution.

There was little doubt among journalists at the time that the new restrictions were intended to cut off uncontrollable press inquiry into conditions behind prison walls, given the unflattering reports on the subject recently published or broadcast. As recalled by Boston Woodard, a veteran inmate journalist in 2006,

In January 1995, a federal judge declared that Pelican Bay prison officials conditionally applied unconstitutional, "cruel and unusual punishment" on mentally ill prisoners in its notorious Security Housing Unit (SHU). Another federal ruling found that the entire California prison system was operating below minimum constitutional standards.

Also in the mid-l990s, the CDCP was dealing with the FBI investigating the use of lethal force at Cocoran State Prison. Several employees were placed on administrative leave, including an associate warden. Corcoran prison officials allowed lower ranking lieutenants and sergeants to "stack the tiers" in certain cell-blocks with rival gang members. When the prisoners were released to the exercise yard and began to fight, perimeter (gun tower) guards would shoot them with high-powered rifles. The "code of silence" used and condoned by the California Correctional Peace Officer's Association (CCPOA) exacerbated matters causing rank-and-file staff to be pressured into silence.

Court: U.C. Whistleblowers Have Nowhere to Go

The California Supreme Court decided last week what two subordinate levels of the state’s judiciary had already agreed on: an employee of the University of California who reports fraud, waste, abuse or other problems within his or her unit of the system, and who then suffers career abrasion or termination, has no standing to bring a suit for damages under the state’s Whistleblower Protection Act so long as the University itself has checked out the retaliation complaint and, with proper timeliness, found it baseless.

This lack of an independent forum for relief is no accident, as the court noted. The Whistleblower Protection Act allows other state employees in general to sue for damages so long as they have taken their retaliation grievances first to the State Personnel Board. The Act allows California State University employees to seek outside remedies if their employer’s internal processes have failed to provide a satisfactory resolution within 18 months. But the Supreme Court majority held that, thanks to the Act, UC’s internal dispute resolution process, providing it yields some result in a timely way, leaves no avenue of appeal in court.

To appreciate what public awareness issues can be at stake here, consider what these whistleblowers were saying, as described in the high court’s opinion in Miklosy v. Regents:

Plaintiffs Leo Miklosy and Luciana Messina are computer scientists who, in February 2003, were employed . . . at the Lawrence Livermore National Laboratory (the Laboratory). Plaintiffs worked in the National Ignition Facility on a project designed to determine the safety and reliability of the nation’s nuclear weapons stockpile. One method of evaluating the safety and reliability of these weapons involved shooting laser beams at “nuclear material” placed in a “Target Chamber.”

As their work proceeded, plaintiffs “identified problems with the . . . project, including . . . potential collisions by large million dollar robotic ‘positioners’ within the [Target Chamber] . . . , the delivery of unusable and untested control software, a lack of defined engineering and operational processes . . . , and inadequate . . . control operator training . . . .” Plaintiffs repeatedly expressed their concerns to management, both orally and in writing, enumerating specific mechanical problems with the positioners and the robotic controls.

On Friday, February 28, 2003, defendants Kim Minuzzo, Larry Lagin, and Jerry Krammen, who were supervisory employees of the Laboratory, fired Miklosy. As he was leaving the premises, Miklosy heard Minuzzo tell Krammen: “Messina is next.” Believing her performance was comparable to that of Miklosy, Messina submitted a letter of resignation. Lagin and Minuzzo asked Messina to reconsider her resignation over the weekend, which she agreed to do. When Messina returned to her office after this meeting, she found her computer disconnected.

On Monday, March 3, 2003, Messina inquired about transferring to a different position at the Laboratory, but Minuzzo telephoned her the next day and directed her to return to the National Ignition Facility. After that conversation had ended, but before the telephone call was disconnected, Messina overheard Minuzzo tell another employee that he intended to fire Messina. Messina resigned as of March 7, 2003.

When Miklosy and Messina filed whistleblower complaints, the internal investigating officer concluded that they had not been fired for expressing their technical concerns; Miklosy was let go for unsatisfactory work, and Messina was not fired at all, but asked to stay on. And that, all courts subsequently agreed, was the only relief afforded the pair under the Act.

Justice Kathryn Mickle Werdegar, in a concurring opinion joined by Chief Justice Ron Geoge and Justice Carlos Moreno, said the Act was ambiguous: Was the UC’s internal dispute resolution mechanism intended to be simply an exhaustion requirement, i.e. a mandatory first stop for any employee alleging retaliation, or was it meant, as the court majority concluded, as the exclusive and final source of review for retaliation claims?

The latter interpretation accords with the statute’s unambiguous language but is contrary to the overall purposes and structure of the Act. I urge the Legislature to revisit this statute and if, as I suspect, it intended to create only a requirement that complainants exhaust their internal remedies, to amend the statute in a manner that makes that intent clear.

The issue seems tailor-made for Senator Leland Yee (D-San Francisco), whose legislative work this year currently includes a bill to improve employee remedies under the Whistleblower Protection Act; and for the second year in a row, the American Federation of State, County and Municipal Employees (AFSCME) Local 3299, which represents over 20,000 UC employees, this past Saturday named Senator Yee as their Legislator of the Year.

A Sacrifice Most Free Newspapers Have to Make

A town with two daily newspapers is as vanishingly rare in California as elsewhere. When a business battle between them is resolved in court, you'd expect it to be reported—if only by the winner. But so far, neither paper has mentioned this case, which may have a lot to do with the survival of the loser.

So here goes.

Legal advertising (or, as called in the trade, public notice advertising) is that densely and often opaquely worded fine print material often found near—and visually somewhat resembling—the classified ads in a newspaper. The difference is that this advertising is legally required to be published in qualifying newspapers—no alternative media buy is permitted. Some public notice ads are required for governmental processes, e.g. new city ordinances or public hearings on important policy issues. Others involve government action but must be purchased by private parties, for example “doing business as” names announced as part of obtaining a local business permit.

As points out,

If you haven't looked at your newspaper's public notice section lately, here are a few things you may have missed:

  • the restaurant at the end of your block applied for a liquor license
  • government agencies are buying the products your company makes
  • a proposed tax increase is on the school board's agenda
  • the assets of your late aunt's estate are being distributed
  • your neighbor has applied for a permit to enlarge her house
  • the sewer authority is issuing bonds to finance a new plant
  • your client filed articles of incorporation with the help of another law firm
  • the state treasurer is holding unclaimed tax refunds
  • business and residential properties are going up for sale

One way of looking at this phenomenon is that it's a rare case—maybe a unique instance—of the government caring more about the public's getting significant information than the press itself sometimes does: "We can't count on the newspaper telling you about this development, so we'll see to it that it's paid to carry it."

California law requires these notices to be published in a “newspaper of general circulation”—a term of art meaning a publication entitled by a court decree to satisfy the publication requirement. Having obtained the decree, a newspaper is thus said to be “adjudicated a newspaper of general circulation,” and you can often find the adjudication reference, right down to the court decree number and date, in or near the newspaper’s masthead.

From the law’s perspective, public notices should be visible in a publication by virtue of its demonstrated roots and permanence in the local community or region. It serves no public purpose to require publication to a defined community if the notice appears only in a newspaper circulated miles away. Accordingly, the process of obtaining a decree involves satisfying the court with either one or the other set of evidence as to local presence and community exposure.

Petitioning newspapers that are actually printed where they are published, that is, in the same city or county, can be adjudicated by showing a “bona fide list of paying subscribers,” which need not be a very large number. Those printed outside the city or county of their publication have a higher and clearly quantitative bar. They must show “substantial circulation” to paying subscribers in the home jurisdiction.

The older adjudicated newspapers in the state—those dating from the 19th and earlier 20th centuries—got their decrees easily enough because they had their own presses in days when owning a press was not a relatively huge financial investment. But for the last 40 years or so, almost all new newspapers have started up by being printed by someone else with a press.

Competition and the scarcity of newspaper web presses being what they are, that someone else was unlikely to be a publisher in the same town, or in more sparsely populated areas, even the same county. So smaller new papers had to travel to find an affordable out-of-town printer, and if they wanted to become “adjudicated” to get that fairly steady public notice income, they had to prove “substantial” paid subscription. More daunting yet, they typically had to do so in a contested court proceeding, with the locally established newspaper—anymore typically owned by a chain publisher—attacking the size or authenticity of their proffered subscriber list.

That gauntlet understandably led new community publishers to seek creative alternatives, and one was to have a free newspaper backed by a voluntary contributors’ list, like a public broadcaster, that could be offered to satisfy the requirement for a “bona fide list of paying subscribers.”

That door was closed last week by the California Court of Appeal for the First District, ruling in In re Establishment of THE EUREKA REPORTER as a Newspaper of General Circulation. When the Eureka Reporter, a daily newspaper established in 2004, went to the Humboldt County Superior Court last year to obtain its adjudication, the court agreed, over protests of the competing daily, the long-established Eureka Times-Standard, that the contributor members of the Reporter’s Voluntary Pay Program,

although having no obligation to do so, have paid for the receipt of the [Reporter]. The court believes this is sufficient to meet the statutory requirement of “paying subscribers” particularly in light of the communities within Humboldt County wherein the funds have been generated.

The court then entered judgment for the Reporter, and the Times-Standard appealed. Last Friday the appellate court reversed the judgment and ordered denial of the Reporter’s petition. Its principal conclusion was that a “subscriber” in the meaning of the law is one who contracts to receive something, not a volunteer contributor:

Participants are not paying for a certain number of issues of the Reporter. They are, in the words of the Reporter, “contribut[ing] to help cover the expense of home delivery” in the form of a “[s]ponsorship[].” Indeed, a contribution is not required to receive home delivery of the Reporter: residents of Humboldt County who do not participate in the Program will receive the newspaper “as a gift of [t]he [] Reporter.”

The underlying assumption in all this is that when a public agency or a private party is required by law to advertise a fact to bring it to the community’s attention for public policy—as opposed to commercial—reasons, the advertisement should appear in the pages of a newspaper that people care about enough to open up and read: one they have paid to receive on a regular basis.

This assumption may sound a bit wistful in a period when the younger generation of readers is said to rely so much on the Internet for news, and is increasingly likely to subscribe to no newspaper at all. But there is some systematic evidence for optimism in a new study by the Readership Institute showing, as one observer puts it, that “reading customers aren't deserting newspapers at anything approaching the rate that advertising customers are.” If that’s the case, then paid circulation still counts in the choice of where to require legally mandated ads to appear.