First Amendment and open government news
Vol. 15, No. 16, August 12, 2005
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COMMENTARY
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The Fight Over Judge Roberts' Confirmation to the Supreme Court is a Fight over Public Records
By Peter Scheer
(CFAC, August 12) -- As Democrats and Republicans prepare to do battle over the appointment of Supreme Court nominee John Roberts, lawyers for both sides find themselves in the familiar roles of demanding or resisting access to--what else?--government records. Specifically, access to memos, brief drafts and other writings by Roberts in his various government jobs before becoming a federal judge.
In a judicial confirmation process in which appointees aren't asked and won't tell what they believe about the major legal issues of the day, records of his official legal work are thought to be the next best evidence of what Roberts really thinks. That may not be true, actually; a lawyer's legal writings are more likely to reflect the views of his clients--in this case, Presidents Reagan and Bush I--than the views of the lawyer.
Nonetheless, with so much at stake, and with so little else in Roberts' intellectual history offering insight on the ultimate questions--will he vote to reverse Roe v. Wade or to prohibit affirmative action?-- official Washington has become a city obsessed with PUBLIC RECORDS.
The White House has already released a truckload of records from the 1981 and 1982 period, when Roberts, fresh off a Supreme Court clerkship with Chief Justice Rehnquist, worked in the Justice Department for Reagan's Attorney General, William French Smith.
In dispute are two other categories of records: First, documents from Roberts' stint in the Justice Department's Solicitor General's Office under Bush I; and second, records from the mid-1980s, when Roberts worked in the office of the White House Counsel during the Reagan administration.
The records from the Solicitor General's Office, where Roberts was a top deputy to Ken Starr (yes, the same Ken Starr who would later investigate President Clinton in the Watergate-Lewinsky matters) are being withheld on grounds of attorney-client privilege. The Solicitor General's Office represents the government--and, especially, the administration--in cases before the Supreme Court.
The disputed records likely consist of memos in which Roberts outlined proposed arguments or positions in pending cases. Some of those proposed arguments might, if disclosed, prove embarrassing during Roberts' confirmation hearings. Hence the Democrats' intense interest in releasing them and the Republicans' intense interest in keeping them under wraps.
Legally speaking, is the administration correct to claim that these records are privileged? I think not.
Although some of the memos no doubt contain "legal advice," the potential distribution of these materials is much too broad to permit their characterization as "confidential." The Solicitor General's Office represents not only the executive branch, but also Congress and some independent agencies. Lawyers who draft legal memos in the SG's Office usually do so with the expectation that they are writing for a wide audience.
The privilege claim is further undermined by the fact that the SG's memo files remain intact from one presidential administration to the next. They are not purged or removed when a Democratic Attorney General leaves and a Republican Attorney General arrives. To argue that files are privileged, even though they are, by tradition, available to the political opposition, would seem to be a stretch.
The records from Roberts' stint in the Reagan White House pose a different issue. Because of their age, these records ordinarily would now be available to the public under the Presidential Records Act. However, shortly after 9/11 President Bush issued an executive order asserting the authority to review such records before they are released.
Are the Bush lawyers on legally firm ground here? Again, the answer is no.
Although the president may have authority to review these Reagan era records for national security reasons--to bar disclosure of information that should be classified, for example -- the Bush order also asserted the power to block release of records subject to the Presidential Records Act on grounds of "any constitutionally based privilege" including records that "reflect … legal advice or legal work."
Under this interpretation of the president's powers, the Presidential Records Act, designed to maximize disclosure of historically valuable White House files, would no longer apply to most records written by attorneys. In a White House lousy with lawyers, this approach would create an exception to disclosure that would consume the rule. It makes no sense.
Judge Roberts' full paper trail should be made public for all to see. The longer the administration lawyers engage in legal maneuvers to prevent this, the more it appears that they have something to hide.
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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Brooke Beros, Isela Castaneda, James Chadwick, Katherine Keating, Joshua Koltun, Rachel Matteo-Boehm, Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
Have a legal issue? Submit your question here.
Political campaign signs on leased property
Q: I want to put a campaign re-election sign in my apartment window. It has particularly good exposure.
I don't know whether or not my particular apartment lease has a restriction in it or not barring political signs. I'm going to assume that it does because I also believe that such a restriction can also be added subsequently.
I also understand that homeowner/condo-association, etc. , restrictions on yard or window signs may very well not raise a valid constitutional-law issue unless there is a very close nexus, or connection, to a government entity.
My complex is funded by a special type state loan -- a California Housing Finance Agency loan. Might this circumstance lend support to assertion my First Amendment right if need be?
A: California law is not well-settled on this point, but the most recent authority indicates that your landlord could potentially impose a lease restriction prohibiting the display of a campaign sign. In Golden Gateway Center v. Golden Gateway Tenants Assoc., 26 Cal. 4th 1013 (2001), a divided California Supreme Court held that the California Constitution does not protect the distribution of newsletters by a tenant's association in a private apartment building. This reasoning could be extended to restrictions on other activities that would normally be protected by the constitutional protection for free speech, such as the display of campaign signs. However, only four of the Court's seven justices joined the decision, and one-Chief Justice Ronald George-joined only the result. Thus, the Court seems to have left the issue open for reconsideration. So if you would like to be the plaintiff in a test case and you can find a good lawyer, you might have a shot at making law.
The mere fact that the state funds the apartment building probably does not alter the analysis. Under the Golden Gateway case, the Court held that restrictions on distribution of newsletters could be imposed by the landlord because there was no "state action," i.e. no real government involvement. The federal courts have generally held that mere public funding of an entity, without state involvement in the actual constitutional violations at issue, does not mean that constitutional violations by an entity constitute "state action." See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982).
Healthcare Districts and closed meetings
Q: For what reasons can a Healthcare District Board have a closed meeting?
A: Assuming that the District Board is subject to the Brown Act, which applies to the meetings of any "legislative body" of a "local agency" as those terms are defined in California Government Code sections 54592 and 549451, respectively, then it may hold closed sessions for the following reasons:
--To discuss and decide whether an applicant for a license or license renewal who has a criminal record is sufficiently rehabilitated to obtain the license (Gov't Code § 54956.7)
--To meet with its own representative prior to the purchase, sale, exchange, or lease of real property to grant authority to the negotiator regarding price and terms of payment (Gov't Code § 54956.8)
--If it is contracted with the state to provide services to MediCal beneficiaries, then to hear a charge or complaint from a member enrolled in its health plan, if the member does not wish to have his or her name or other information that is protected by federal law publicly disclosed (Gov't Code § 54956.86)
--To confer with legal counsel regarding pending litigation, when discussion in open session would prejudice the local agency in the litigation--see the Brown Act for a detailed definition of what constitutes "pending litigation" (Gov't Code § 54956.9)
--To meet with law enforcement on "matters posing a threat to the security of public buildings or a threat to the public's right of access to public services or public facilities" (Gov't Code § 54957)
--To consider the appointment, employment, evaluation or performance, discipline, or dismissal of a public employee, or to hear complaints or charges brought against the employee by another person or employee, unless the employee requests a public session, but note that the term "employee" does not include an elected official or a member of a legislative body (Gov't Code § 54957)
--To discuss salaries, salary schedules, fringe benefits, and other issues within the scope of negotiations between a local agency and its employees with the local agency's representative in those negotiations.
There are a few other reasons that a closed session may be held. (See Gov't Code section 54954.5), but the do not seem likely to be applicable to your situation.
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ASKED
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CFAC IN THE NEWS
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Contra Costa Times:
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