Public Forum Law Week in Review: 9/23/08

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Open Government


CalAware Joins Chorus against Bailout Secrecy

Californians Aware is among 50 national and regional
organizations calling on the leadership of Congress's financial regulation committees—with copies to all other lawmakers—to avoid
exempting the Secretary of the Treasury from laws designed to allow
public scrutiny of governmental action as they consider enacting the
proposed $70 billion financial industry bailout legislation.  The Senate letter to this effect,
sent today, concludes, “Any genuine solution must be grounded in
transparency, with all relevant records publicly available and best
practice whistleblower protection for all employees connected with the
new law. Secrecy worsened this crisis, and taxpayers will not accept a
law for secret solutions. What happens to our money is our business.”

Bond Oversight Board to Be Queried Privately
The Stockton Record reports
that auditors investigating San Joaquin Delta College's use of bond
money will do so privately, despite the objections of at least two of
the four members of a citizen oversight committee charged with
reviewing bond measure expenditures, producing an annual report and
informing the public. The audit was requested by a state senator after
a grand jury report asserted that Delta trustees wasted millions of
dollars in selecting a location for a new campus.

Berkeley Activists Unveil Sunshine Law Draft
The Berkeley Daily Planet reports
that a citizen’s group comprising political advocates, lawyers,
commissioners, a former Berkeley mayor and other Berkeley residents met
publicly for the first time September 9 to unveil their own draft
sunshine ordinance, created as an alternative to the former city
attorney’s proposal, both of which promise more open government in the
city.

‘Bug Board’ Orders Probe of Report’s Leak
The Desert Sun in Palm Springs reports
that, citing the need to protect the integrity of the board and its
closed sessions, Coachella Valley Mosquito and Vector Control District
trustees have voted to launch a probe into the leak of an investigative
report noting that its former general manager had complained of sexual
harassment by its former legal counsel.

Free Speech

Attorney: Courts Perverting Anti-SLAPP Law
Recent decisions by two California Courts of Appeal have turned California’s anti-SLAPP law into a legal Frankenstein’s monster, says a leading attorney specializing in open government law.  In doing so, he argues, they have converted a law designed to protect the public’s exercise of free speech and petition rights into a tool for government suppression of those rights.

Trustees Restrict Student Cellphone Uses
The Vallejo Times Herald reports that trustees of the Vallejo City Unified School District have adopted tough regulations governing cell phones, banning the use of camera phones and other electronic devices by students to record videos of schoolyard fights, prohibiting students from recording videos in rest rooms, locker rooms or other zones of presumed privacy, and requiring students to get permission from individuals before videotaping them on campus.

Church Members Get Tongue-Biting Tips
The Orange County Register reports that local church leaders went to a workshop recently where a lawyer coached them on how to—or not to—express political views in view of increased IRS scrutiny and their congregations’ potential loss of federal tax-free status.

Speech Not Free for Berkeley Tree-Sitters
The San Francisco Chronicle reports
that Berkeley's notorious tree-sitters have been hit with a rude
surprise since they came down to earth. Judges are socking them with
fines and legal fees that could total more than $10,000 per sitter,
much of it payable to the University of California, at which the
arboreal sit-in was directed in an effort to save a grove of trees from
removal to make way for an athletic center.

Whistleblowers

Oakland Council Offers Employee Shield
The San Francisco Chronicle reports that Oakland city employees who report fraud, waste and abuse would be protected from retaliation under a new whistleblowers program approved by the City Council. Allegations of fraud and nepotism have prompted a federal criminal investigation of city hall.

Court: Air Marshal Unprotected in Leak
The Associated Press reports that the U.S. Court of Appeals for the Ninth Circuit has ruled that the federal Department of Homeland Security lawfully fired an air marshal after he gave a reporter an embarrassing but routine memo on reducing hotel costs by eliminating overnight airline trips for marshals for a month. The air marshal said he leaked the memo after his boss ignored his safety concerns.

Public Information

Journalists Offer Political Research Guidance
The Greater Los Angeles chapter of the Society of Professional Journalists will this Saturday morning present "Follow the Documents," a workshop intended to help reporters sort through campaign finance records and other public documents, but open to the public for an $8 fee. Award-winning political reporter David Zahniser of the Los Angeles Times will teach the nuts and bolts to finding and understanding campaign finance reports, economic interest filings and other public documents.

Federal Electronic Records ‘Blip into Oblivion’
The New York Times reports that the National Archives is in the early stages of creating a permanent electronic record-keeping system with the help of the San Diego Supercomputer Center at the University of California, hoping to take in huge quantities of White House records when President Bush leaves office in January. But elsewhere in the federal domain, employees grappling with a staggering growth in electronic records do not regularly preserve the documents they create on government computers, send by e-mail and post on the Web.

Bar Exam Data Case Won’t Start in High Court
The Recorder in San Francisco reports that if a UCLA law professor gains access to California Bar exam data for his own study on racial preferences, he'll have to start somewhere other than the California Supreme Court, which without getting to the merits has directed him to re-file in a lower court. Professor Richard Sander has been trying since 2006 to get the Bar's data to build on a 2004 study he did that suggested affirmative action might be responsible for black students' high bar failure rates nationwide.

Public Records Disclosed Reveal . . .

  • that Los Angeles Mayor Antonio Villaraigosa spent most of his working day between May 21 and August 1 of this year “flying in and out of town, holding staged press conferences, attending banquets, ceremonies and parties, raising political money and providing face time to high-powered special interest groups in a position to help his political advancement,” as reported  by L.A. Weekly;
  • that the staff of San Diego’s Southeastern Economic Development Corporation, a public agency, was able to pay itself  more than $1 million in bonuses and other extra compensation last year while staying in budget by leaving key budgeted positions continually unfilled, as reported by Voice of San Diego.org;
  • that problems afflicting the Riverside County Registrar of Voters office include inadequate security for ballots, voting machines and memory cards and a "lack of accountability" along the chain of custody, according to a report by a voting integrity watchdog group summarized in the Temecula Daily Californian; and
  • the suffering experienced by a closely tethered female African elephant at Vallejo’s Marine World Africa USA theme park before being sold to a Utah zoo in 2005, where she died two weeks ago, as noted in the Vacaville Reporter.

Free Press

Judge Gags Paper from Reporting Testimony
The Orange County Register reports that the judge presiding in an impending class action suit against the newspaper brought by its delivery carriers has ordered the paper not to publish any testimony of witnesses in the proceeding—an order immediately challenged to the California Court of Appeal as an unconstitutional prior restraint. The five-year-old case was brought by carriers who want to be treated as employees rather than independent contractors.

Chauncey Bailey Project Stays on the Case
PR Newswire reports that in the aftermath of the August 2007 murder of Chauncey Bailey, the first American journalist to be killed in the U.S. in 31 years while working on a story, an investigative team of Bay Area journalists has uncovered key facts about his murder and continued the investigation into possible criminal activities of the Your Black Muslim Bakery in Oakland.

Mayor Has Five Draft Paparazzi Ordinances
The Malibu Surfside News reports that despite repeated assertions by Malibu’s mayor that no new laws to restrict local paparazzi activities were being drafted, the texts of five ordinances that do just that are included in a one-foot-thick stack of documents compiled for her by faculty and staff at the Pepperdine School of Law. The Society of Professional Journalists has expressed concern.

St. Paul Drops Charges against Journalists
LATimes.com reports that dozens of journalists arrested on misdemeanor charges while reporting on protests outside of the Republican National Convention earlier this month will not be prosecuted, the mayor of St. Paul has announced.  The city attorney has insisted, however, that the arrests of the journalists were not improper.

Open Meetings

D.A. Issues Warning on Use of Closed Session
The Pasadena Star-News reports that the Public Integrity Unit of the Los Angeles District Attorney’s office has sent the Pasadena City Council a stern warning on its use of a closed personnel session to discuss whether council members would support a resolution to oppose the construction of an NFL stadium in the neighboring City of Industry.

Mayor’s Home-hosted Meeting on Tax Faulted
The Wave in Los Angeles reports that questions have been raised about the legality of a meeting that took place last week at the home of Mayor Maria Santillan where both supporters and undecided individuals came together to discuss the pros and cons of a proposed utility users tax on the November 4 ballot, and where two other City Council members were present, constituting a majority of that body.

Odd Label Used for Closed Session with Chief
The Sun in San Bernardino reports that the City Council’s agenda-listed reason for a closed session discussion with the chief of a demoralized police department was to confer with the chief concerning the security of public buildings and citizens’ access to them.

Watchdog Thanked for Spotting Agenda Error
Writing in the Newsblog forum of the San Diego Union-Tribune, Matthew T. Hall reports that the city Planning Commission had to cancel a meeting  after an alert resident pointed out that the agenda hadn’t been posted far enough in advance in a place open to the public. It was the first time that had happened in the eight years Chairman Barry Schultz had served on the commission, but he thanked the citizen for her vigilance.

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Public Forum Law Week in Review: 9/10/08

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Free Speech

Court: CalAware’s Suit a Losing SLAPP
The Metropolitan News-Enterprise in Los Angeles reports that the Fourth District Court of Appeal has ruled that a suit by Californians Aware against the Orange Unified School District, claiming that it violated the civil rights of district trustee Steve Rocco by censuring him and editing his comments out of a board meeting tape it prepared for cable television, was properly stricken under the anti-SLAPP law. Rocco was a co-plaintiff with CalAware, whose board of directors is now reviewing its options.

DMV Reconsiders, OKs 'HIV POZ' Plate
The San Jose Mercury News reports that in June, a local HIV-positive motorist applied for an "HIV POZ" personalized plate for his 2007 Prius. Saturday, he received a letter from the department rejecting his request, but after a query by the Mercury News, the DMV has reversed the denial.  Ten years ago the department lost a lawsuit brought by a motorcyclist whose application for an “HIV POS” plate was rejected.

Teacher Can Sue to Keep Faith Banners
The Los Angeles Times reports that a veteran high school math teacher has won a round in federal court in his fight to put "God Bless America" and "One Nation Under God" banners back in his San Diego classroom, where they had hung for two decades before the principal ordered him to take them down last year, saying they were an impermissible attempt to make a Judeo-Christian statement to his students.

Court: Animal Cruelty Ads Can Be Banned
The Metropolitan News-Enterprise in Los Angeles reports that the California Court of Appeal has rejected a constitutional challenge to a West Hollywood ordinance banning “mobile billboard advertising” by a nonprofit group seeking to broadcast graphic images of animal abuse on large video screens mounted on a truck.

Governor Gets Bill Protecting Cybercritics
The California Newspaper Publishers Association reports that a bill it sponsored to protect the anonymity of those posting messages on the Internet from arbitrary abuse has been sent to the Governor. AB 2433 by Assemblyman Paul Krekorian (D-Burbank). CNPA says, would make it easier for an Internet service provider or anonymous speaker to find a lawyer to oppose an abusive subpoena issued from an out-of-state court by requiring the court to award attorney’s fees under the same circumstances as apply to SLAPP suits: where the subpoenaing party seeking to learn the speaker’s identity fails to satisfy the court that its proposed suit against the speaker is likely to be a winner.

District Ponders Restraints on Cyberbullies
The Californian in Temecula reports that school district administrators soon will draft regulations governing how to enforce a recently approved policy prohibiting cyberbullying.?? In doing so, it says, they will have to navigate between a desire to discourage online cruelty and protection for students' free-speech rights.

New Software Tuned to Screen Cyberbozos
The StupidFilter Project announces the beta version of its new software designed to help Internet comment moderators eliminate (if they choose) postings marked by telltale markers of likely dimwititude, e.g. “comments with too much or too little capitalization, too many text-message abbreviations, excessive use of ‘LOL,’ exclamation points, and so on.” But not, fortunately, speling errars.

Court: Festival Can Ban Biker Gang Colors
The Metropolitan News-Enterprise in Los Angeles reports that a divided panel of the U.S. Court of Appeals for the Ninth Circuit has decided that the organizer of the Gilroy Garlic Festival did not violate the civil rights of four motorcycle club members when it prevented the men from wearing vests displaying their club affiliation.

No Prosecution for Abortion Protesters
The Orange County Register reports that abortion protesters arrested in February on charges of trespassing at Cypress College won't face jail time or a criminal trial; prosecutors have dropped the charges, concluding that the protesters’ refusal to confine their handbilling to designated “free speech zones” may have violated campus policy but was not a criminal offense.

Escribitionists Can be Dooced at Will
The San Diego Reader reminds those concerned that a private sector boss, not bound by the First Amendment to respect your speech rights, can not only fire (“dooce”) you for blogging (about anything) but can refuse to hire (“pre-dooce”) bloggers (“escribitionists”) in the first place.

Open Government

Federal Secrecy Report Card Released
OpenTheGovernment.org, a coalition of over 70 open government advocates including Californians Aware, announces that Government secrecy increased across a wide spectrum of indicators in 2007. The findings of the 2008 Secrecy Report Card, published annually to identify trends in public access to government information, include:

  • almost 22 million Freedom of Information Act requests were received, an increase of nearly 2 percent over last year;
  • the 25 departments and agencies that handle the bulk of FOIA requests failed to make a dent in their backlogs, although they received the fewest requests since reporting began in 1998; and
  • the number of original classification decisions increased slightly after dropping two consecutive years, and the number of derivative classifications increased by almost 13 percent.

Activist Fights Copyrighting of the Law
The Santa Rosa Press-Democrat reports that California claims copyright to its laws, published on line, and warns people not to share them, and that's not sitting right with Internet gadfly and open-access hero Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws—think building codes, banking laws, etc. Malamud wants the state to sue him for publishing his copies of the codes on his website.

Report: Public Input No Quality Guarantee
Steven Aftergood of the Project on Government Secrecy notes that a new report from the National Research Council probes deeply into the positive and occasionally negative effects of public participation on the environmental policymaking process. “It is practically an article of faith in democratic societies that openness and public participation are presumptively good,” says Aftergood, “but that doesn’t mean it’s true.”

Free Press

Letter Deluge Demands Charges Be Dropped
Timothy Karr, writing in the Huffington Post, reports that journalists and local residents assembled outside St. Paul City Hall Friday to deliver more than 60,000 letters to Mayor Chris Coleman and prosecuting attorneys demanding that they immediately drop charges against all journalists arrested last week as they covered the Republican National Convention. Dozens of journalists, photographers, bloggers and videomakers were booked by the Ramsey County Sheriff's office in what Karr says appears to have been an orchestrated roundup of both traditional and new media witnesses covering protests during the convention. The St. Paul PD now says it couldn't tell press from protesters.

Radical Media Computers Seized in Raid
The Electronic Frontier Foundation reports that the FBI, UC Berkeley police, and Alameda County Sheriff's deputies raided and seized every computer hard drive and storage disk, including those of Slingshot, a quarterly newspaper, and Berkeley Liberation Radio, housed in the Long Haul Infoshop, a storefront work space used by a number of leftist and anarchist groups. EFF notes that the raiders, seeking the source of threatening e-mails traced to Long Haul, may have violated federal law in seizing the media property without special cause.

Open Meetings

DA: Unfair to Try to Punish Defiant Trustees
The Orange County Register reports that District Attorney prosecutors say that while a school board violated the Brown Act at least four times earlier this year, with some trustees showing "disturbing disdain, if not outright contempt" for constituents when meeting behind closed doors, it would be unfair to take legal action because doing so would hurt the cash-strapped district financially and because the board was reconstituted in June by a recall election that ousted two longtime trustees.

Open Courts

City Seeks Closed Hearing in Firing Lawsuit
The Stockton Record reports that the City of Lathrop, sued for wrongful termination by its former chief building official, who was fired in February, has asked the San Joaquin Superior Court to close the first hearing in the case to protect the privacy of city witnesses.