Assembly Lawsuit

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DAVIS WRIGHT TREMAINE LLP KELLI L. SAGER (State Bar No. 120162) kellisager@dwt.com ROCHELLE L. WILCOX (State Bar No. 197790) rochellewilcox@dwt.com JONATHAN L. SEGAL (State Bar No. 264238) 865 S. Figueroa Street, Suite 2400 Los Angeles, California 90017-2566 Telephone: (213) 633-6800 / Fax: (213) 633-6899 LOS ANGELES TIMES COMMUNICATIONS LLC KARLENE GOLLER (State Bar No. 147065) 202 West First Street Los Angeles, California 90012 Telephone: (213) 237-3760 / Fax: (213) 237-3810 MCCLATCHY NEWSPAPERS, INC., dba THE SACRAMENTO BEE STEPHEN BURNS (State Bar No. 105312) 2100 Q Street Sacramento, California 95816-6899 Telephone: (916) 321-1926/ Fax (916) 326-5586 Attorneys for Petitioners LOS ANGELES TIMES COMMUNICATIONS LLC and MCCLATCHY NEWSPAPERS, INC. dba THE SACRAMENTO BEE
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO
LOS ANGELES TIMES COMMUNICATIONS LLC; THE MCCLATCHY COMPANY,
) ) ) ) Petitioners, ) ) vs. ) ) CALIFORNIA LEGISLATURE; ) CALIFORNIA ASSEMBLY COMMITTEE ) ON RULES; NANCY SKINNER AS CHAIR ) OF THECALIFORNIA ASSEMBLY ) COMMITTEE ON RULES, ) ) Respondents. ) ) ) ) )
VERIFIED LORA PETITION
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Case No. VERIFIED PETITION FOR DECLARATORY RELIEF AND WRIT OF MANDATE DIRECTED TO THE CALIFORNIA LEGISLATURE, THE CALIFORNIA ASSEMBLY COMMITTEE ON RULES, AND NANCY SKINNER, AS CHAIR OF THE CALIFORNIA ASSEMBLY COMMITTEE ON RULES, ORDERING COMPLIANCE WITH THE LEGISLATIVE OPEN RECORDS ACT [Cal. Code Civ. Proc. 1085 et seq.; Cal. Govt Code 9070 et seq.; Cal. Const. Art. I, 3(b)(1)]
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Pursuant to California Code of Civil Procedure 1085 et seq., California Government Code 9070 et seq. (the Legislative Open Records Act, LORA), and Article I, 3(b)(1) of the California Constitution, petitioner Los Angeles Times Communications LLC, which publishes the La Caada Valley Sun (The Sun) and the Los Angeles Times (The Times), and petitioner McClatchy Newspapers, Inc., which publishes The Sacramento Bee (the Bee) (collectively, Petitioners), petition this Court for a writ of mandate and declaratory relief directed to respondents California Legislature (the Legislature), California Assembly Committee on Rules (the Rules Committee) and Nancy Skinner as Chair of the California Assembly Committee on Rules (Ms. Skinner) (collectively Respondents), commanding Respondents to comply with their obligations to disclose information related to legislators budget allowances, spending, and expenses as described below. In support of this Petition, Petitioners allege: 1. Petitioner Los Angeles Times Communications LLC is a limited liability
corporation organized under the laws of the State of Delaware, which is authorized to do business and is doing business in the County of Los Angeles. At all times relevant to the Petition, The Times has been engaged in the business of gathering and disseminating information to the public, including information about the performance and functioning of state government, through its publication of The Times and The Sun, newspapers of general circulation distributed in Los Angeles County as well as throughout the State of California. As such, Petitioner is within the class of persons beneficially interested in Respondents performance of their legal duties. 2. Petitioner McClatchy Newspapers, Inc. is a corporation organized under the laws of
the State of Delaware, which is authorized to do business and is doing business in the County of Sacramento. At all times relevant to the Petition, McClatchy has been engaged in the business of gathering and disseminating information to the public, including information about the performance and functioning of state government, through its publication of the Bee, a newspaper of general circulation distributed in Sacramento County as well as throughout the State of California. As such, Petitioner is within the class of persons beneficially interested in Respondents performance of their legal duties. 1
DWT 17780572v3 0050033-000508 DAVIS WRIGHTTREMAINELLP
865 S. FIGUEROA ST, SUITE 2400 LOS ANGELES, CALIFORNI A90017-2566 (213) 633-6800 Fax: (213) 633-6899
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3.
Respondent California Legislature is the legislative body for the State of California.
It has found and declared that access to information concerning the conduct of the peoples business by the Legislature is a fundamental and necessary right of every citizen in this state. Cal. Govt Code 9070. 4. On information and belief, Respondent California Assembly Committee on Rules is
the Assembly Committee charged with maintaining the records at issue here. It is sued pursuant to Cal. Govt Code 9074, 9077 and/or 9080(f) as the entity that has withheld the records at issue here. 5. Respondent Nancy Skinner is the Chair of the California Assembly Committee on
Rules. On information and belief, she was the individual responsible for the decision to withhold the records at issue here, and who may therefore be required to disclose those records pursuant to Govt Code 9074, 9077 and/or 9080(f). 6. Article I, 3(b)(1) of the California Constitution states: The people have the right
of access to information concerning the conduct of the peoples business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. 7. Respondent has mandated procedures for publicly disclosing legislative records, to
wit: Legislative records are open to inspection at all times during the normal office hours of the Legislature and any person has a right to inspect any legislative record, except as hereafter provided. Any person shall be furnished reasonable opportunities for inspection of legislative records and reasonable facilities for making memoranda or abstracts therefrom. Any person may receive a copy of a legislative record if such record is of a nature permitting such copying. Cal. Govt Code 9073. All requests to inspect any legislative record shall be made to the appropriate Rules Committee of each house of the Legislature or the Joint Rules Committee, except that all requests to inspect any legislative record in the possession of the Auditor General shall be made to the Joint Legislative Audit Committee. Such committees shall be considered to have custody of all legislative records and shall be responsible for making all legislative records available for inspection. Such committees shall promptly inform any person whether any legislative record shall 2
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be made available for inspection. Such legislative records shall be made available for inspection promptly and without unnecessary delay. Cal. Govt Code 9074. 8. LORA defines legislative records as any writing prepared on or after December
2, 1974, which contains information relating to the conduct of the publics business prepared, owned, used, or retained by the Legislature. Cal. Govt Code 9072(c). 9. Petitioners have published articles regarding allegations by individual legislators that
their office budgets have been used improperly to punish members who fail to cooperate with the California Legislatures leadership. 10. For example, on July 28, 2011, The Sun published an article entitled State to
Furlough Assemblymans Staff. The article, by Joe Piasecki, reported that staff members working for Assemblyman Anthony Portantino were forced to take six-week unpaid furloughs after Mr. Portantinos allowance was lowered by the Assembly leadership. Mr. Portantino has alleged that Assembly Speaker John Prez cut Mr. Portantinos office allowance in retaliation for Mr. Portantinos vote against the state budget. Mr. Prez denied the allegations, and claimed that Mr. Portantino improperly exceeded his allocated office budget. A true and correct copy of that article is attached to this Petition as Exhibit A. 11. On August 1, 2011, The Times published an article entitled State Lawmakers Toe
the Line or Risk Losing Their Parking Spots. The article reported on the disagreements between Messrs. Prez and Portantino, and also reported allegations that California assembly leaders historically have used taxpayer-funded office budgets and public property, including parking spaces at the Capital building, as part of an informal patronage system in which members are rewarded for their cooperation or punished for their independence. A true and correct copy of that article is attached to this Petition as Exhibit B. 12. On July 14, 2011, the Bee published an article entitled Anthony Portantino
Demands Records to Fight Punishment. The article reported on Mr. Portantinos claim that he is falsely being blamed for overspending and that Assembly records will make it clear that his office budget was cut as punishment for voting against the controversial state budget crafted by Democratic leaders. A true and correct copy of that article is attached to this Petition as Exhibit C. 3
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13.
In an effort to research these allegations, and to gain insight into how the California
Legislature has been conducting the publics business (and, in particular, how it has utilized taxpayer funds that are allocated for the Legislatures administrative expenses), Petitioners made requests under LORA for information related to individual legislators budget allowances, spending, and expenses. 14. On July 18, 2011, Mr. Piasecki, on behalf of The Sun, submitted a request to Ms.
Skinner. A true and correct copy of Mr. Piaseckis request is attached to this Petition as Exhibit D. The request sought: y Copies of each California Assembly Members Annual Allowance and Budget Summary for budget years 2010 and 2011; y y y y 15. Each members total budget allowance for budget year 2010; Each members expenses for budget year 2010; Each members total budget allowance for budget year 2011; Each members estimated expenditures for budget year 2011.
On July 29, 2011, Lynda Roper, Deputy Administrative Officer, denied Mr.
Piaseckis request, claiming that the information was exempt from public disclosure under Cal. Govt Code 9075(a), which applies to [p]reliminary drafts, notes, or legislative memoranda, and Cal. Govt Code 9075(h), which applies to [c]orrespondence of and to individual Members of the Legislature and their staff. A true and correct copy of Ms. Ropers letter is attached to this Petition as Exhibit E. 16. On July 15, 2011, Michael J. Mishak, a reporter for The Times, submitted an e-mail
request toAssembly Chief Administrative Officer Jon Waldie seeking information about budgets and expenditures for Assembly members and committees. A true and correct copy of Mr. Mishaks request is attached to this Petition as Exhibit F. That request sought: y The office budget and expenditure approvals for Assemblyman Anthony Portantino;
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Any documents from the Rules Committee or Speakers Office that reflected changes to Mr. Portantinos budget and expenditures, including but not limited to e-mail, and quarterly updates on office spending;
The office budget and expenditure approvals for each member, committee and subcommittee of the Assembly for this legislative session;
Any documents from the Rules Committee or Speakers Office, including but not limited to e-mail, that executed changes to each Assembly members budgets and expenditures.
On July 29, 2011, Lynda Roper, Deputy Administrative Officer, denied Mr.
Mishaks request regarding the budgets of individual Assembly members and committees on the grounds that the information was exempt from public disclosure under Cal. Govt Code 9075(a) and 9075(h). In response to his request for records related to approved expenditures, Ms. Roper directed Mr. Mishak to an annual report for the period ending November 30, 2009, and stated that records from the 12-month period that will end on November 30, 2011, were not available. A true and correct copy of that letter is attached to this Petition as Exhibit G. 18. On July 15, 2011, Jim Sanders, a reporter for the Bee, submitted an e-mail request to
Assembly Chief Administrative Officer Jon Waldie seeking information about budgets and expenditures for Assembly members and committees. A true and correct copy of Mr. Sanders request is attached to this Petition as Exhibit H. That request sought: y Each Assembly members approved budget, including any resources allocated on the basis of each members chairmanship, vice chairmanship or participation on a committee or subcommittee; y Additional expenditures authorized for each Assembly member, if any, including additional spending tied to leadership or participation on a committee of subcommittee; y Any changes additions or reductions to approved budget or expenditure authorizations for each Assembly member, including changes related to leadership or participation on a committee or subcommittee; 5
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Any Assembly Operating Fund Report, Independent Audit of Operating Funds, and/or Performance Audits;
Any documents related to consultants or to legal settlements related to the Assembly or to any of its members;
Annual budget and authorized staff, or full-time equivalents, for each Assembly standing committee and select committee and any documents that detail spending of standing and select committees in the categories of employee salaries & benefits, employee travel & per diem, employee auto expense, building expense, telephone, postage, freight, office supplies, duplicating, publication, and equipment and furnishing.
On July 29, 2011, Lynda Roper, Deputy Administrative Officer, denied in part Mr.
Sanders request regarding the budgets of individual Assembly members and committees on the grounds that the information was exempt from public disclosure under Cal. Govt Code 9075(a) and 9075(h). In response to his request for records related to approved expenditures, Ms. Roper directed Mr. Mishak to an annual report for the period ending November 30, 2009, enclosed records from the 12-month period ending on November 30, 2010,and stated that records from the 12-month period that will end on November 30, 2011, were not available. A true and correct copy of that letter is attached to this Petition as Exhibit I. 20. As discussed above, reporters employed by Petitioners made proper requests for
records pursuant to Cal. Govt Code 9074, which provides that legislative records shall be made available for inspection promptly and without unnecessary delay. 21. Respondents denial of access to the requested records is a violation of LORA. The
requested records concern the conduct of the peoples business and the use of public resources to conduct that business, and do not fall under any of the exemptions set forth in Cal. Govt Code 9075. 22. Among other provisions of LORA, Respondents refusal to provide the requested
records is a violation of Cal. Govt Code 9073, which provides, in pertinent part, that Legislative records are open to inspection at all times during the normal office hours of the Legislature and any 6
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person has a right to inspect any legislative record, except as hereafter provided. Any person shall be furnished reasonable opportunities for inspection of legislative records and reasonable facilities for making memoranda or abstracts therefrom. Any person may receive a copy of a legislative record if such record is of a nature permitting such copying. 23. Respondents refusal to provide the requested records also violates Cal. Govt Code
9074, which provides, in pertinent part, that upon a proper request legislative records shall be made available for inspection promptly and without unnecessary delay. 24. Petitioners allege on information and belief that Respondents will continue to violate
LORA, and will continue to misinterpret Cal. Govt Code 9075 as exempting from disclosure certain budget and expenditure records related to each member of the Assembly. 25. Respondents refusal to provide the requested records also violates Article I,
3(b)(1) of the California Constitution, which provides for public access to information about the conduct of the peoples business. 26. Petitioners allege on information and belief that Respondents will continue to deny
Petitioners access to these records in contravention of Cal. Govt Code 9073 and 9074, and the California Constitution. 27. Petitioners allege on information and belief that the information they seek from
Respondents is maintained in Sacramento County. 28. Cal. Govt Code 9076 states that [a]ny person may institute proceedings for
injunctive or declarative relief in any court of competent jurisdiction to enforce his right to inspect any legislative record or class of legislative records under this article. It authorizes the Court to compel Respondents to release the requested records and to comply with their obligations under LORA. 29. Cal. Govt Code 9077 states that [i]f the court finds that the committees decision
to refuse disclosure is not justified under the provisions of Section 9074 or 9075, he shall order the committee to make the record available for inspection. If the judge determines that the committee was justified in refusing to make the record available for inspection, he shall return the item to the committee without disclosing its content with an order supporting the decision refusing disclosure. 7
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Any person who fails to obey the order of the court shall be cited to show cause why he is not in contempt of court. THEREFORE, Petitioners request that: 1. This Court issue a peremptory writ of mandate, immediately directing Respondents to
disclose to Petitioners: y Copies of each California Assembly Members Annual Allowance and Budget Summary for budget years 2010 and 2011; y y y y y Each members total budget allowance for budget year 2010; Each members expenses for budget year 2010; Each members total budget allowance for budget year 2011; Each members estimated expenditures for budget year 2011; The office budget and expenditure approvals for Assemblyman Anthony Portantino; y Any documents from the Rules Committee or Speakers Office, including but not limited to e-mail, as well as quarterly updates on office spending, that execute changes to Mr. Portantinos budget and expenditures; y The office budget and expenditure approvals for each member, committee and subcommittee of the Assembly for this legislative session; y Any documents from the Rules Committee or Speakers Office, including but not limited to e-mail, that execute changes to each Assembly members budgets and expenditures; y Any changes additions or reductions to approved budget or expenditure authorizations for each Assembly member, including changes related to leadership or participation on a committee or subcommittee; y Each Assembly members approved budget, including any resources allocated on the basis of each members chairmanship, vice chairmanship or participation on a committee or subcommittee;
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Additional expenditures authorized for each Assembly member, if any, including additional spending tied to leadership or participation on a committee of subcommittee.
or, in the alternative, that this Court issue an order to show cause issue why these records should not be disclosed; 2. This Court issue an order declaring that Respondents denials of Petitioners requests
violate LORA; 3. This Court enter an order awarding Petitioners their reasonable attorneys fees and
costs incurred in bringing this action, pursuant to Cal. Govt Code 9078; and 4. The Court award such further relief as is just and proper.
DATED: August 5, 2011
DAVIS WRIGHT TREMAINE LLP KELLI L. SAGER ROCHELLE L. WILCOX JONATHAN L. SEGAL LOS ANGELES TIMES COMMUNICATIONS LLC KARLENE GOLLER MCCLATCHY NEWSPAPERS, INC., dba THE SACRAMENTO BEE STEPHEN BURNS By: Kelli L. Sager Attorneys for Petitioners LOS ANGELES TIMES COMMUNICATIONS LLC and MCCLATCHY NEWSPAPERS, INC. dba THE SACRAMENTO BEE
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Dan Evans, declare: 1.
VERIFICATION
I am editor for theLa Caada Valley Sun, which is published by Los Angeles Times
Communications LLC, a Petitioner in this action, and I am authorized to make this Verification on Petitioners behalf. 2. I have read the VERIFIED PETITION FOR DECLARATORY RELIEF AND
WRIT OF MANDATE DIRECTED TO THE CALIFORNIA LEGISLATURE ORDERING COMPLIANCE WITH THE LEGISLATIVE OPEN RECORDS ACT. The facts stated in the Petition related to Los Angeles Times Communications, LLC, are either true and correct of my own personal knowledge, or I am informed and believe that such facts are true and correct, and on that basis I allege them to be true and correct. I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed this __ day of August 2011, at __________________, California. ___________________________ Dan Evans
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Joyce Terhaar, declare: 1.
VERIFICATION
I am the Executive Editor of The Sacramento Bee, which is published by McClatchy
Newspapers, Inc., a Petitioner in this action, and I am authorized to make this Verification on Petitioners behalf. 2. I have read the VERIFIED PETITION FOR DECLARATORY RELIEF AND
WRIT OF MANDATE DIRECTED TO THE CALIFORNIA LEGISLATURE ORDERING COMPLIANCE WITH THE LEGISLATIVE OPEN RECORDS ACT. The facts stated in the Petition pertaining to The Sacramento Bee are either true and correct of my own personal knowledge, or I am informed and believe that such facts are true and correct, and on that basis I allege them to be true and correct. I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed this 5th day of August 2011, at Sacramento, California. ___________________________ Joyce Terhaar
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Assembly Lawsuit

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SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO

LOS ANGELES TIMES COMMUNICATIONS LLC; THE MCCLATCHY COMPANY,

DATED: August 5, 2011

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Dan Evans, declare: 1.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Joyce Terhaar, declare: 1.

I am the Executive Editor of The Sacramento Bee, which is published by McClatchy

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