| PRA Trial Brief |
| LAW OFFICES OF MARCO A. GONZALEZ LAW OFFICES OF CHARLES S. CRANDALL Attorneys for Plaintiff, Rural Heritage and Watershed Initiative Committee SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO Plaintiff, vs. COUNTY OF SAN DIEGO, a governmental entity; BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO; LAWRENCE B. PRIOR III, Chief Administrative Officer of the County of San Diego, Defendants.
DATE: October 22, 1999 TIME: 9:00 a.m. DEPT: 60 I/C JUDGE: William C. Pate Date Action Filed: 12/08/98
I. INTRODUCTION Plaintiff RURAL HERITAGE AND WATERSHED INITIATIVE COMMITTEE (ARHWIC@) respectfully submits this rebuttal trial brief according to the briefing schedule and stipulation of the parties. The landscape of this action has changed dramatically since the trial briefing began. No longer are there 43 documents at issue. During the briefing, the County has turned over the handwritten notes that were the subject of the summary adjudication motion and also 38 additional documents, albeit in redacted form. This rebuttal pleading will focus on the remaining four non-disclosed documents, which consist of four memos to the Board of Supervisors (including handwritten notes by Supervisor Horn on one of them). To justify nondisclosure of these last four documents, the County's reply brief makes three basic points. First, the County disparages the evidence submitted by Plaintiff, stating that it does not add Aany weight to the disclosure side of the balance@ of competing interests. County Reply Brief (CRB at 4). The County pokes fun at the Afive easy pieces@ of evidence submitted by Plaintiff, proclaiming that the evidence Ahardly creates a compelling case for a County conspiracy@ (CRB at 2), and that the documents Alend no credence at all to the allegation of illegal campaigning@ (CRB at 3). The County's analysis of the evidence is flawed and unreasonable. The standard is not whether, taking all evidence separately and in the light most favorable to the County, a Acompelling case of conspiracy@ is proven; rather, the question is whether the totality of the evidence, reasonably interpreted, raises a well-founded suspicion of governmental misfeasance that can and should be resolved through disclosure. Here, a member of the press witnessed a public meeting of the Board of Supervisors and came to the conclusion that the whole process was rigged. His conclusion is buttressed by several documents, the most important of which are handwritten notes expressing extreme concern about Mr. Gogek's information being Aleaked@ by Asomeone on the McFetridge team@ who knew about the Apre-meeting@ when staff members were told to put a stronger negative message before the Board of Supervisors. Given these facts, the urgency legislation proposed by the Board, aimed right at the Initiative with the specific intent to defeat it, is not innocuous. Nor is the e-mail message written by Supervisor Horn's staff member, Ivan Holler. This e-mail is certainly not, as the County claims, Ainconsistent@ with a plan to keep the Initiative off the ballot; to the contrary, a fair reading of that memorandum shows that Board staff was considering ways to keep the ballot measure from ever reaching the voters. In short, plaintiff's evidence more than raises a reasonable suspicion of misfeasance and easily defeats the County's ability to show that the need for secrecy Aclearly outweighs@ the public interest in disclosure. Second, the County is trying to impose on plaintiff an evidentiary standard that does not exist. There is no requirement under the CPRA, or anywhere else, that Plaintiff establish a Acompelling case for a County conspiracy@ or a Aprima facie@ case of illegal electioneering. The generic public interest in disclosure is contained in the CPRA itself. That generic interest in disclosure is magnified by the existence of a significant public controversy (reflected in Mr. Gogek's article) over how the County handled the Initiative. It is also strengthened by circumstantial evidence already in Plaintiff's possession. Under the cases, that is more than enough to carry the day. See, e.g., Connell v. Superior Court (56 Cal.App.4th 601, 617 (1997); Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal.App.3d 704, 715 (1985). Third, the County claims that the Court must uphold the privilege to protect candid discussion of issues by decision makers (CRB, at 13). The County supposedly fears the possibility of future timidity by government employees, but this fear is unfounded. The request before the Court does not seek the wholesale disclosure of all communications between Board members and their staff. Rather, it seeks four discrete documents based on a reasonable suspicion of governmental misconduct. The County's fear is unfounded. See Braun v. City of Taft, 154 Cal.App.3d 332, 346 (1984) (AJust because disclosure is allowed in this case does not mean that disclosure will be allowed in others. Each case must undergo an individual weighing process. The weighing process involves what public interest is served in this particular instance in not disclosing the information versus the public interest served in disclosing the information.@) When an issue as important as a citizen's initiative measure is at stake, there should be no secrets in government. Disclosure here will either lend further credence to Plaintiff's evidence of governmental impropriety or dispel it. Either way, this will have significant effects on the public's trust in government, which is what the Public Records Act is all about. II. ARGUMENT A. The County Has Failed to Carry its Burden of Proof Under the CPRA The County's Reply Trial Brief completely omits any reference to the burden of proof, suggesting only that the Court Amust balance the public interest in non-disclosure against the public interest in disclosure@ (CRB at 1). This statement plainly ignores that it is the County's burden to prove entitlement to the privilege by demonstrating that Athe public interest in non-disclosure clearly outweighs the public interest in disclosure.@ Government Code '6255; California First Amendment Coalition v. Superior Court, 67 Cal.App.4th 159, 172-173 (1998). The balancing under the CPRA is deliberately weighted heavily in favor of disclosure and the County certainly has not overcome its burden.
B. Plaintiff's Evidence Supports a Strong Public Interest in Disclosure. The County's Reply Brief tries to down-play each individual item of evidence while ignoring the picture painted when all the evidence is considered together. The declarations from County staff amount to testimony of: ADespite what might be inferred from the document, the County didn't do anything wrong.@ It is neither reasonable nor fair to look at the evidence in the light most favorable to the County; the County has always gone to great lengths to publicly proclaim its impartiality. However, the Plaintiff's bias evidence must be assessed by the reasonable person standard. As set forth in Plaintiff's Trial Brief, improper electioneering will often be determined by such factors as Astyle, tenor and timing@ of information disseminated about an Initiative. Here, Plaintiff's evidence, viewed reasonably and in totality, clearly raises an inference of misfeasance that warrants disclosure of the four documents in question. 1. Jim Gogek's Article The fact that a member of the news-reporting media perceived impropriety at the presentation of the Initiative to the Board of Supervisors Aadds weight to the disclosure side of the balance@. While the County dismisses the article as nothing more than an unsubstantiated opinion piece, it is not every day that an editorial piece of the San Diego Union accuses the County of misconduct. Indeed, the County concedes that these allegations are serious. (CRB at 2,3.) In the context of the CPRA, an opinion/editorial alleging governmental misconduct should hold special weight. Mr. Gogek's article specifically mentions a dress rehearsal of the RHWI report presentation to the Board after which County Chief Administrative Officer, Larry Prior III (LPIII) allegedly told staff he wanted a stronger negative message before it went to the Board. That such a meeting occurred is corroborated by additional evidence now before the Court.
2. The Unidentified Handwritten Notes The handwritten notes by a staff member in the Chief Administrator's Office on a photocopy of Mr. Gogek's article corroborate the fact that something untoward occurred at the pre-meeting. We now know the exact statements to be as follows: Larry's Comments@ * LPIII believes it was leaked by staff * We have a problem! Info re: meeting not accurate * We have someone on the McFetridge team * How would Gogek have known about the pre-meeting * Does Gary have any idea@
See Group 3, Document 1 of the Lodged Under Seal Documents (emphasis added). The County interprets these notes as reflecting concern Athat there was someone within the office who was relaying to the public the deliberative processes that comprised the steps in the formulation of the report and the polishing of the presentation of the report to the Board . . . A CRB at 7. Perhaps that is a possible interpretation of these notes but it is certainly not the most reasonable or unbiased one. More probably these notes reflect consternation by the County CAO that Asomeone on the McFetridge team@ (i.e., a County planner) who attended the Adress rehearsal@ (i.e., pre-meeting) leaked it to Mr. Gogek that the County planners were told to emphasize the negative aspects of the Initiative in their report to the Board. The County indeed had Aa problem@; its little scheme had been uncovered. 3. Ivan Holler's e-mail The County's analysis of the email by Board of Supervisor staff Ivan Holler also misses the point. Again, it looks at that document in the light most favorable to the County, not as a reasonable person would. Before the Initiative could be placed on the November 1998 ballot, a number of time-sensitive hurdles needed to be overcome by Plaintiff. RHWIC needed to submit the initiative to the County, to gather over one-hundred thousand signatures, to have the registrar certify the signatures, and then to calendar the issue on the Board of Supervisor's docket by a certain date for the administrative action of designating the Initiative a Aproposition@ and placing it on the ballot. In light of these facts, Mr. Holler's email is considerably more revealing. The time line proposed contained a recommendation for a AFiscal Impact Study prior to placing the initiative on the ballot,@ and thereby sufficient delay to preclude a vote in the general election. The County is sorely wrong when it points to the conservative calculation of deadlines as somehow supporting the legitimacy of the email. They do not. The apparent glee with which Mr. Holler concludes that the RHWI will not make it on the ballot and that Duncan (McFetridge) would have to pay for a special election reflects the underlying perception and treatment of the Initiative throughout the process. Taken together with the other evidence, this email supports plaintiff's allegations of impropriety. 4. Recently disclosed documents After Plaintiff submitted its trial brief, the County disclosed the vast majority of documents previously withheld with allegedly irrelevant portions redacted. Because the redacted portions are often interspersed with fragments of information regarding the RHWI, Plaintiff respectfully requests the Court take great care to ensure all relevant information has been produced. In particular, plaintiff is concerned with instances such as Document 20 of Group 2 (dated 3/10/98), where large blocks of RHWI information contain short redacted portions. The newly acquired documents lend support to Plaintiff's case and raise additional questions. For example, as noted above, they support the fact that a dress rehearsal of the presentation to the supervisors did, in fact, take place. They also show that Planning Department staff was directed by Gary Pryor to solicit important land-value information from the Building Industry Association, a group vocally opposed to the RHWI. Document 22 in Group 2. (Dated 4/6/98). Further, there is reference to a >Murder Squad@ convened in anticipation of significant opposition to the presentation of the report. Document 30 in Group 2. (Dated 5/5/98). These documents suggest that the County came at the Initiative with a bias against it.3 C. The County's Reply Trial Brief Ignores the Applicable Law Regarding Balancing of Interests The County's Reply Trial Brief is devoid of any law, using the excuse that Athere is little if any Alegal@ debate over the requirement for balancing the competing interests@. (CRB at 14). In fact, there is a substantial body of precedent that upholds disclosure of purportedly privileged documents in circumstances similar to those before this Court. Distilled to its essence, the County' position is that Plaintiff must prove a Acompelling case for a County conspiracy@ before the documents are disclosed. (CRB at 2) This is obviously not the standard. Rather, there are two compelling interests in disclosure; one is the generic interest under the CPRA for government activities to be conducted under the light of full public scrutiny. See Plaintiff' Trial Brief at 6-7. The other is a case-specific interest in disclosure. As to the latter inquiry, there is a plethora of cases supporting disclosure under circumstances such as are present here. See Connell v. Superior Court (1997) 56 Cal.App. 4th 601, 617; Citizens for a Better Environment v. Dep=t. of Food & Agriculture (1985) 171 Cal.App. 3d 704, 715 (disclosure supported when documents concern Athe conduct of county officials in enforcing pesticide use laws and the conduct of state officials in the investigation and supervision of that task...@); CBS, Inc. v. Block (1986) 42 Cal.3d 646, 656 (noting strong public interest in document disclosure to Aascertain whether the law is being properly applied or carried out in an evenhanded manner@); Division of Industrial Safety v. Superior Court (1975) 43 Cal.App.3d 778, 786 (disclosure supported when it could highlight illegal activities and result in heightened accountability by government agency); Register of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 909 (disclosure ordered in part due to public interest in finding out how decisions to spend public funds are formulated); In re Franklin National Bank Securities Litigation (1979) 478 F.Supp. 577, 587 (Public interest in disclosure strong when government malfeasance is at issue and documents will assist in Aevaluation@ of extent of culpability). D. The County' Assessment of the Withheld Documents Should be Viewed with Skepticism; In Any Event, Disclosure is Warranted to Clear the Air Given that plaintiff' knowledge of the documents yet undisclosed is based solely on their description in Defendant' privilege log and Reply Trial Brief, it is difficult to make arguments regarding their particular probative value. The Court will, necessarily, make this relevancy determination. Plaintiffs have three points to make regarding the Court' in camera review. First, it is particularly difficult to counteract the County' spin on what a document signifies when Plaintiff is unable to review it. Nevertheless, the Court should keep in mind that there is more than one way to view a document, even a critically important one. For example, the County sees nothing untoward in the handwritten notes appearing on Mr. Gogek' article from the CAO office. On the other hand, a reasonable person, Plaintiff submits, would come to a quite different conclusion about these notes. The same can be said of Mr. Holler' e-mail regarding the possibility of s a special election being funded by Plaintiff' chairman, Duncan McFetridge. Plaintiff respectfully requests the Court to be extremely mindful that the County' perception is not necessarily a reasonable or correct one.4 Second, the descriptions that have been provided of the documents do lend some support to the need for disclosure. For example, the first withheld document (Group 1, Document 1) allegedly contains information with respect to the need for a complete analysis of the Initiative. This document may prove important when compared to the eventual substance of the report. Given the date of the document, it may also provide a reference point for subsequent actions by the Supervisors. The second withheld document (Group 1, Document 2) allegedly contains speaking points with respect to the proposed disenfranchisement legislation. Evidence has been offered that the proposal for legislation was triggered by the RHWI. Any notes or documents which may help to clarify this assertion must be considered probative. The third document (Group 1, Document 3) allegedly contains direction to the CAO regarding dissemination of the County' RHWI report. Importantly, the CAO is directly implicated in the allegations of bias put forth in Jim Gogek' newspaper article. Further, any indication of which specific portion of the public the CAO was directed to forward the report may indicate the supervisor' desire to put certain members of the public, such as the farm bureau or the Building Industry Association, at an advantage by receiving the report earlier. The County' description of the fourth document (Group 1, Document 4) also points to a need for disclosure. If there was bias expressed by any of the Supervisors, and Plaintiff has specifically referred to negative statements by Supervisor Horn reported in a newspaper article, then any additional indication of bias would be important and probative. Third, whatever the four withheld documents show on their face, there is a public controversy here that requires resolution. If, indeed, the withheld documents show that the County was doing nothing wrong, then the County should not be afraid of disclosing them. See Connell v. Superior Court (1997) 56 Cal.App. 4th 601, 617 (disclosure justified because Athe public interest demands the ability to verify. Only in this way can the public be certain, for example, that there is not a conspiracy of silence . . .)(emphasis added) On the other hand, if improprieties are evident, then the documents are obviously probative and should be disclosed. CONCLUSION Respectfully submitted. DATED:October____,1999
_______________________________________ CHARLES S. CRANDALL
DATED: October ____, 1999
_______________________________________ MARCO A. GONZALEZ |
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