--------------------------------------------------------------------------------

SCA-1 on the Ballot as Proposition 59

(CFAC 6/30/04) -- The Secretary of State's office yesterday announced proposition numbers for the 14 measures that will appear on the November 2, 2004 general election ballot. The Sunshine Amendment (SCA-1) is listed as Proposition 59.

Prop 59 is designed to give constitutional stature to existing government access rights provided by state statutes-primarily the Public Records Act-and case law. Although by its terms Prop 59 does not alter those rights, supporters believe it nonetheless will require courts to interpret access exemptions more narrowly and to place on government agencies a greater burden in justifying withholding records.

Prop 59 is sponsored by CFAC, the California League of Women Voters, Senator Mike Machado, and Senator John Burton. The "pro" argument on the November ballot was ghost-written by CFAC board member and First Amendment lawyer James Chadwick. (Read the text of Prop 59)

Sy Hersh and Michael Krasny to headline CFAC's Assembly in October

Seymour Hersh, investigative reporter for The New Yorker magazine, will be a featured speaker and panelist at CFAC's Fall Assembly, the organization announced today. Also participating as moderator will be Michael Krasny, radio talk show host for WKQED in San Francisco, CFAC said.

The theme for the CFAC Assembly this year is "Resisting Government Secrecy in a Time of Terrorism." The Assembly will be held October 8 and 9 (Friday and Saturday) at the UC Berkeley Graduate School of Journalism, which is also a co-sponsor of the event.

"From his stories on the My Lai massacre in the 1970s, to his recent revelations of mistreatment of Iraqi prisoners, Sy Hersh has been America's premier investigative reporter," said Peter Scheer, CFAC executive director.

"And Michael Krasny is the most thoughtful and engaging interviewer working in radio or TV today," Scheer said. "To have them both on the same stage at our annual Assembly will be an honor."

A record in the Kobe case is mistakenly unsealed; Judge becomes unglued

(CFAC 6/30/04) -- The judicial arrogance award this week goes to Colorado district judge Terry Ruckriegle, the trial judge in the Kobe Bryant sexual assault case, who issued an emergency injunction to the Denver Post and 6 other media organizations, ordering them NOT to publish, upon penalty of contempt, any stories about a trial transcript mistakenly emailed to them by a hapless court reporter.

The transcript was from a closed-door hearing in which defense lawyers presented evidence about the sexual history of the woman Bryant allegedly assaulted. The court reporter meant to email the transcript to Judge Ruckriegle, but clicked on the media distribution list instead. Oops.

Judge Ruckriegle then issued his genie-back-in-the-bottle order to the media. The order is a perfect text-book example of prior restraint against the press, which is unconstitutional absent the most extraordinary justification (think Pentagon Papers). Moreover, because the news organizations are not parties to the Kobe case, the judge had no jurisdiction to bind them with his no-publish order, valid or not.

So what should the judge have done? Acknowledging that there are limits even on a judge's power, he should have picked up the phone, called the news organizations' editors, and asked-politely-that they voluntarily forgo publication of stories based on the transcript. And the news organizations-which did nothing to get the transcripts except open their email-should have, and probably would have, agreed to the judge's request.

Instead, the case now goes to the Colorado Supreme Court, which yesterday ordered Judge Ruckriegle to explain his actions. The judge, now on a very short leash, was given until Friday to submit a brief.

Requests for government pay records, granted in past years, are now denied by Richmond, Oakland, and BART

(Contra Costa Times) -- A doctor at Contra Costa County's public hospital more than doubled his $153,000 salary in 2003 with extra pay for being available on an on-call basis.

A San Francisco police sergeant nearly tripled his $64,507 salary through overtime last year.

The names of the doctor and the police officer are a public record, available to anyone who wishes to view them.

Contra Costa's and San Francisco's governments released this and other salary information -- including employees' names -- to the Times, in compliance with the California Public Records Act.

But other agencies around the Bay Area, including BART and the cities of Richmond and Oakland, have recently blocked release of the names of their top earners, sometimes under union pressure.

The trend troubles public access advocates. "We pay the salaries," said Peter Scheer, executive director of the California First Amendment Coalition, an open-government group. People should take the attitude that: "I am a taxpayer and I pay these salaries and it is my business. Taxpayers are entitled to know (who) is overpaid and underpaid," he said. (Read the story)

New CA Law adds to protections for victims in rape cases

(Los Angeles Times) -- The privacy rights of alleged rape victims were strengthened last week with the passage of a California law inspired by the Kobe Bryant case and boosted by a high-profile Orange County gang-rape trial.

The law requires that defense lawyers' motions to disclose an alleged victim's sexual history-which themselves reveal that background-be kept confidential unless and until ruled admissible by a judge.

"Unscrupulous defense attorneys try to deny justice to victims by putting their sexual history out on display when it's not relevant to the case," Assemblyman Russ Bogh (R-Cherry Valley), who sponsored the bill, said in a telephone interview. "The law still gives a defendant the right to question his accuser. It's just done in private."

The state Senate and the Assembly unanimously approved the legislation before Gov. Arnold Schwarzenegger signed it Wednesday. It was added to the lawbooks Thursday, but will not take effect until Jan. 1. (Read the story)

Artists Busted for painting political mural without city OK

(Visalia Times Delta) -- When Lindsay artist Victor Cervantes set out to paint a mural on the back of a popular mini-mart, he had no idea he was breaking the law.

Cervantes instead thought he was exercising his civic responsibility, putting a stop to graffiti and encouraging Hispanics to vote.

But Lindsay police say the mural, located on the east side of Willie's Market on the corner of Elmwood Avenue and Tulare Road, is illegal, and its message, encouraging young Hispanics to vote, should go because Cervantes didn't get approval from the city's mural committee, a violation of a Lindsay ordinance.

"I had no idea the ordinance existed," Cervantes said.

Cervantes thought he just had to get permission from the owner of Willie's Market. Once he did that, the colorful mural depicting a lowrider car, three Hispanic youths and the words "Orale Raza, Registrate y Vota" was born. Cervantes recruited friends to paint the mural, which translates "Hey people, register and vote." (Read the story)

--------------------------------------

U.S. Supreme Court Watch

Supreme Court Blocks law regulating children's access to Internet pornography

(WASHINGTON, New York Times 6/29/04) -- The Supreme Court on Tuesday rejected Congress's latest effort to curb children's access to sexually explicit material on the Internet. But at the same time it gave the Bush administration a second chance to defend the law as a trial on its constitutionality goes forward in Federal District Court in Philadelphia.

The 5-to-4 majority kept in place an order that the district court issued in 1999, blocking enforcement of the Child Online Protection Act until its validity can be resolved. The six-year-old law, which imposes criminal penalties of as much as $50,000 a day on commercial Internet sites that make pornography available to those younger than 17, has never taken effect.

The decision came on the final day of the Supreme Court's term. Justice Anthony M. Kennedy, writing for the majority, said that the government must now show why the voluntary use of filters to screen out material unsuitable for children would not work as well as the law's criminal penalties. Filters "impose selective restrictions on speech at the receiving end, not universal restrictions at the source," Justice Kennedy wrote. (Read the story)

Court declines to order Cheney to release energy records

(WASHINGTON, New York Times 6/24/04) -- The Supreme Court handed a major political victory to the Bush administration today, ruling 7 to 2 that Vice President Dick Cheney is not obligated, at least for now, to release secret details of his energy task force.

The majority of the justices agreed with the administration's arguments that private deliberations among a president, vice president and their close advisers are indeed entitled to special treatment-arising from the constitutional principle known as executive privilege-although they said the administration must still prove the specifics of its case in the lower courts.

"A president's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual," the court said in a summary of the majority opinion written by Justice Anthony M. Kennedy.

By sending the case back to the lower federal courts, the majority removed a significant political headache for President Bush and Vice President Cheney. As a practical matter, the outcome today means that the final resolution will not come until well after the November elections. (Read the story)

--------------------------------------

Assembly Public Safety Committee passes witness privacy bill

(CFAC) -- The Assembly Public Safety Committee last week approved a bill giving local prosecutors authority, when filing police records in court, to redact confidential and personal information about witnesses. The committee passed the bill by a vote of 5-0.

SB 58 by Senator Ross Johnson (R-Irivine) allows district attorneys and court officials, in consultation with sheriffs' and police departments, to adopt procedures for withholding social security numbers, bank accounts, credit card numbers and other found in police reports filed with the court.

The bill was opposed by California Newspaper Publishers Association, CFAC, and Californians Aware. In its opposition CFAC argued that, while it does not object in principle to screening raw police records filed in court for social security numbers and like information, there is no need for a new statute since prosecutors have inherent discretion to decide what to file in criminal cases.

HOTLINE Queries

Here are two questions sent this week to CFAC's Hotline legal consultation service-and the answers provided by our lawyers at Piper Rudnick.

Destroying e-mail lists

Q: Can a government agency destroy email lists that have been requested under the Public Records Act? In this case, the email list was in the possession of a Los Angeles neighborhood council.

A: Destruction of public records is governed by Cal. Government Code Section 6200, which specifies that:

"every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:

(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify."

(For the full answer, click here)

Criteria for college president's contract renewal

Q: I am a college professor at a public college in California. The college president's contract was recently renewed. Can I access the criteria that the college used to make the contract-renewal decision?

A: Take a look at California Attorney General Opinion No. 84-1204 (April 18, 1985), in which the attorney general concluded that records indicating the amount of public employee bonus awards and the reasons for those awards were subject to disclosure under the Public Records Act.

The attorney general's analysis was twofold. First, the attorney general concluded that records specifying the amount of a bonus award and the reasons therefore were part of the executive's employment contract and were therefore public pursuant to Government Code section 6254.8.

Second, the attorney general concluded that even if section 6254.8 did not apply, none of the Public Records Act's privacy-based exemptions (Government Code section 6254(c), Gov't Code section 6255, and the constitutional right to privacy), would authorize the public body to withhold the amount of and reasons for the performance awards. In reaching this conclusion, the attorney general concluded that the public interest in finding out how decisions to spend public funds are formulated outweighed any interest in not disclosing the amount and reasons for the award. While attorney general opinions are not binding on a court, they may be persuasive.

If you have suggestions for items to be included in CFAC's weekly Flash, please email them to Peter Scheer