Monthly Archives: April 2008

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

(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 […]

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 SpeechThis 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 […]

When Court-Approved Secrecy Can Kill You

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 […]

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

(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 […]

Sunshine Amendment Eclipsed

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 […]

Another Barrier to Disclosing Police Misconduct

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 […]

Opening Up Those Sealed Court Files

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 […]

Public Forum Law Week in Review: 4/9/08

(CalAware Weekly comprises this plus the two previous posts) Open Government San Francisco Meetings Seen as Digitally Recorded      The San Franciso Examiner reports that Supervisor Ross Mirkarimi has introduced legislation that would require the City to digitally record audio and video of public meetings at City Hall as well as establish an archive, with footage held for two years. The bill would require posting the meetings’ footage within 72 hours. Website Invites Ideas for Federal Sunshine Reform       The Sunlight Foundation has announced the launch of a new site,, where members of the public are able to mark up the draft of federal transparency legislation, entitled "The Transparency in Government Act of 2008." Sponsors report 63 contributions in the first week.Public Information License Plates Shield Officials from Traffic Tickets     The Orange County Register  reports that a program that makes it difficult for the DMV to trace the owners of vehicles with certain license plates, designed 30 years ago to protect police from criminals, has been expanded to cover hundreds of thousands of other public employees—from police dispatchers to museum guards—who face little threat from the public, as well as their spouses and children.  But even as one Assemblyman tries to rein in the program, the Register reports, his colleagues (who are also covered) are voting to expand it to include veterinarians, firefighters and code enforcement officers.Judge Asked to Unseal Road Rage Search Warrants      The San Diego Union-Tribune reports that it and three other news organizations are asking a judge to unseal search warrants that may be related to the March 15 shooting of an unarmed Oceanside woman and her 8-year-old son by an off-duty San Diego police officer […]

California — The Secret Police State?

Peace officer lobbyists are making a bold move to take their members—all police, sheriff’s and other sworn law enforcement personnel— entirely off the public record and into the shadows of anonymity. The Hayward Daily Review reports that an amendment to a bill introduced this week in Sacramento seeks to push police salary and other basic information about officers, including their names, out of public view. The bill comes on the heels of two state Supreme Court decisions last year finding that salaries and other basic information about police and other peace officers, including their names, are indeed public information. A Sacramento Bee editorial reports  that the author may already be backpedaling, but not soon enough to show what he and police rights advocates had in mind as shown in three passages that the bill would add to the law. The amendment proposed to be inserted into Penal Code Section 832.7 is as follows: Personnel records and records maintained by any state or local agency, or information obtained from these records, containing personnel data, including the peace officer’s or custodial officer’s name and salary information, are confidential, and shall not be disclosed except as provided by this section.  These records shall not be subject to any mass disclosure, including posting or publishing on the Internet. The latter language is probably an attempt to block from obtaining and posting on its site police and sheriff’s department rosters, which form the matrix for public comments praising or criticizing individual officers by name. The definition of confidential personnel information in Penal Code Section 832.8 that must be withheld would be amended to include (the) individual’s identity as a peace officer or custodial officer, badge number, or undercover officer […]

Animal Rights at War with Animal Practices

Pet fanciers and others who live or work close to animals have always known that many if not most of the more familiar domesticated or wild species have feelings, if not precisely thoughts, as shown in their obvious capacity to suffer. That awareness, echoed in certain religious beliefs, is increasingly underscored by scientific research and academic debate which in the last century or so has resulted in  secular theories to the effect that how humans treat animals is a matter of ethics, not just sentiment. The conflict between arguments for animal rights on the one hand and animals’ utility as research subjects or recreational performers on the other rages here in California at least as fervidly as anywhere else, and has shown up in a variety of disputes about what can be shown or even said about the treatment of animals in different circumstances.  One of the leading cases on the issue of speech rights on public property under the California Constitution concerned precisely where, on the grounds of the Cow Palace, animal rights protesters were allowed to hand out leaflets concerning a rodeo being held in the arena. The court concluded that the establishment’s permissive contact areas were unreasonably restricted, and that, for example, the leafleters must be allowed to follow patrons throughout the parking lot. Kuba v. A-1 Agricultural Association, 387 F.3d 850 (Ninth Circuit 2004). Just in the last few days several other instances of the animal rights struggle and its implications for open government and free speech values have surfaced.         >>> A bill amended on April Fool’s Day by Assembly Member Gene Mullin (D-San Mateo) would enact sweeping provisions aimed at suppressing certain information about those working in […]