K.J.’s revenge

SN&R out more than $100K in decision with stark implications for freedom of the press, says publisher

This is an extended version of a story that appears in the August 2, 2018, issue.

It’s expensive standing up to the government.

In a ruling with far-reaching consequences for public accountability, a California appeals court ruled against the Sacramento News & Review’s attempts to recoup more than $100,000 in legal costs spent on a successful court defense of open records laws.

The case was a hot potato for the administration of former Sacramento Mayor Kevin Johnson—or maybe more of a hide-the-ball situation. A few years ago, K.J. was involved in a hostile takeover of the National Conference of Black Mayors and using city employees on the non-city mission. In 2015, then-SN&R columnist Cosmo Garvin petitioned City Hall with a request under the California Public Records Act for communications between Johnson and city staff related to NCBM, including emails sent through specially set-up Gmail accounts tagged with “OMKJ,” for “Office of Mayor Kevin Johnson.”

Before releasing emails regarding Johnson’s contested election as the new NCBM president—between Johnson’s office and law firm Ballard Spahr LLP—the city notified Ballard Spahr that it had no cause to prevent their disclosure. Clever Gmail tag or not, these were emails sent on city time using city resources, the city attorney’s office concluded.

Ballard Spahr then contacted both SN&R and the Sacramento Bee, which had submitted a similar records request, and asked the newspapers to rescind their requests for the emails in question.

The Bee agreed. SN&R didn’t.

Johnson, acting as the former president of NCBM, which he had recently shoved into bankruptcy proceedings as part of his plan to launch a competing black mayors’ association, sued his own city and Chico Community Publishing Inc., which owns SN&R and two other alt-weeklies, to keep the emails from becoming public.

K.J.’s plan didn’t work. SN&R prevailed in the years-long legal battle, receiving 120 of the 158 emails in question. SN&R then asked for the money it was forced to spend defending the California Public Records Act.

After Sacramento Superior Court Judge Christopher E. Krueger denied SN&R’s request, the newspaper appealed and drew supportive briefs from more than a dozen media associations and free-speech groups, including The Associated Press and Los Angeles Times Communications, LLC (but not The Bee, incidentally). But on July 25, a three-judge appellate court dismissed each of SN&R’s arguments in a densely technical 19-page decision.

“The newspaper argues that because the communications at issue involved Johnson in his capacity as mayor, his attempt to prevent the e-mails from disclosure equated to a public officer withholding public records from a member of the public who requested them. Again, we disagree,” Associate Justice Ronald B. Robie wrote for the court.

While Robie acknowledged that “Johnson could only have been president of the National Conference because of his position as Mayor of Sacramento” and that K.J. used “city resources, including city and staff time, to conduct National Conference business,” the justice goes on the conclude that “Johnson’s claim of privilege over the e-mails stemmed from his position as the president of the National Conference and not from his position as mayor of the City.”

SN&R publisher Jeff vonKaenel said he found that justification obtuse.

“I know of no other private individual who is able to instruct city staff to work on private projects,” he said. “If the court can find me one … my back lawn needs mowing.”

Caitlin Vogus, a staff attorney with the Reporters Committee for Freedom of the Press, which submitted an amicus brief in support of the newspaper’s reimbursement request, says the ruling could disincentivize journalists, nonprofits and members of the public from requesting public records if they think can be sued simply for asking, and then have to pay out of pocket to defend themselves with no hope of recouping expenses if victorious.

“So we think the ruling is significant,” Vogus said. “It wasn’t the result we wanted, but we live to fight another day, I guess.”

Vogus pointed to a footnote in the decision as a possible silver lining. In it, the justices basically affirm that there’s a different legal provision by which parties who defeat reverse-CPRA lawsuits can get reimbursed. Dan Laidman, the attorney representing SN&R, agreed but says it isn’t a guarantee and still leaves a lot to judicial discretion.

“That’s why we sought relief under the CPRA,” he said. “It doesn’t give you the sort of certainty you need as a newspaper with limited resources.”

Because this case featured such bizarre plot twists and unusual behavior from a sitting mayor, Laidman says both the trial and appellate judges treated it as an exceptional situation unlikely to repeat. But Laidman says the ruling does have a chilling resonance. He noted that public officials are increasingly blurring the lines between their public duties and private ambitions by sitting on various boards and non-governmental entities. Based on this decision, a politician can falsely claim being involved in a personal matter without penalty, even when it’s later proven that they weren’t.

“I don’t necessarily think it’s such a weird situation. A lot of public officials take part in private organizations as part of their public roles,” Laidman said. “And in this case using public resources and city staff to do so.”

If the newspaper wants to appeal this decision, the only avenue left is the California Supreme Court. But it’s a long shot, as the state’s high court accepts few cases. The newspaper is still reviewing its options, Laidman said.

VonKaenel called the ruling “absurd” and a blow to small- and midsize media companies that represent the public’s interest.

“This ruling reeks of Citizens United,” he said, referencing the Supreme Court ruling that equated corporations to people. “It is one more example where there is one set of laws for the rich and powerful and there is another judicial system for those who are not. And to have a court twist themselves in logical knots to make such an unfair playing field for both political donations and now for freedom of information requests is a disgrace and a mark upon the judicial system.”