Santana: OC Superior Court Judge Cools County Attack on First Amendment

Legal protections for journalists got a real boost this past week from the Orange County bench, amidst efforts by county supervisors to interrogate reporters seeking public records in court.

In a Dec. 12 decision, Orange County Superior Court Judge Walter Schwarm solidly upheld California’s Shield Law, which protects journalists from disclosing unpublished information.

“This privilege is absolute,” Schwarm affirmed in his Dec. 12 decision against the County of Orange.

Voice of OC reporters and editors originally sought a series of public records last year for a story about County Supervisor Todd Spitzer’s citizens’ arrest of an evangelist at a Wahoo’s in Foothill ranch on Easter weekend.

When the County of Orange denied what we and our lawyers contend are clearly public communications – emails between Spitzer and County Public Information Officer Jean Pasco along with a draft Op-ed by Spitzer about the incident – our news agency was forced to file a public records lawsuit to challenge their denial of records.

After we filed our lawsuit, Spitzer sought my deposition, arguing I held relevant but unpublished information about the affair.

(Click here for Spitzer’s own account of his reasoning why he wanted the county to depose me, and here for the county’s court filing in response to the original Voice of OC lawsuit.)

I also addressed the case publicly this past month (county officials declined an offer to appear alongside me) on PBS So Cal with host Rick Reiff on his news broadcast, Inside OC.

I believe I was unfortunately targeted for retaliation – aka deposition – by Spitzer and County Counsel Leon Page because our news agency’s constant pressing for public records is an irritant to county supervisors.

This kind of pushback is aimed at delivering a direct message.

Back off.

Or else.

County Supervisor Shawn Nelson, who voted to defend the county position on the disputed records, said supervisors were not consulted on the Santana deposition demand. He called the effort to depose journalists in a public records case, un-American.

Judge Schwarm also questioned the rationale in direct terms.

“Apparently, the County seeks to question Mr. Santana about his conversations with Supervisor Spitzer regarding the Wahoo’s incident to show that the public has a
negligible interest in the disclosure of the requested information as it pertains this incident.

The VOC’s motive in seeking these records is irrelevant.

Mr. Santana’s motive in speaking with Supervisor Spitzer is also irrelevant to a determining whether the Government Code section 6255 exemption applies. The County has not sufficiently shown how a deposition of Mr. Santana will tend to show a negligible public interest in this incident especially since the Register and VOC have published reports regarding this incident.”

Click here to read the judge’s Dec. 12 ruling granting the VOC motion-to-quash.

Beyond the journalistic protections offered by California’s Shield Law, the ruling supports our argument that just because someone challenges denial of a public record by a government agency that shouldn’t open them up for baseless interrogations.

It’s a principle imbedded into our constitution, our First Amendment.

Our government is designed to spur, not repress, freedom of expression.

Yet more and more government lawyers are targeting the press.

The Obama Administration instituted one of the most aggressive approaches in targeting reporters who published sensitive information, earning headlines for their battle against New York Times journalist James Risen.

Most recently, former LA Times reporter Robert Faturechi was called to testify in a federal corruption case against former LA Sheriff Lee Baca. Faturechi’s attorney also successfully fought government requests for broad questioning, limiting his testimony to published information.

“Subpoenaing journalists is a threat to media independence,” Faturechi said in a statement in court.

In our case, county lawyers all but publicly admitted to the judge they had no legal or factual basis for questioning me, other than to conduct a fishing expedition into my background and the Voice of OC readership.

That argument would mean that the County of Orange would have every right to conduct government-funded fishing expeditions against anyone who challenges in court their denial of a public record.

That’s a frightening and authoritarian standard.

Judge Schwarm publicly rejected it.

The County Board of Supervisors should publicly follow suit.

Our challenge of the underlying denial of public records – for email exchanges and draft documents between an elected official and county executive – is expected to go before Schwarm in early March.

We are fully confident that we will win our case.

Unfortunately, when county supervisors are proved wrong in their politicized reading of the law, again, it is county taxpayers that will be required to pay all of our legal bills.

The longer that Spitzer and county officials drag this out, the bigger the bill facing taxpayers.

Following our day in court – before Judge Schwarm’s decision was published – Spitzer called me suggesting we should try to reach a settlement.

We had a long, fruitful discussion about why documents like these should be public. Why government that is designed for and by the people should be conducted in the light of day.

Ironically, I pointed out to Spitzer that he’s often been on the minority side of political battles where public documents have been key to his side winning. Moreover, Spitzer’s overall record on public records hasn’t been bad, with him recently voting against a majority attempt to limit public comment at supervisors’ weekly meetings.

Yet Spitzer and others believe that elected officials and government bureaucrats need a certain amount of secrecy to conduct the public’s business.

We respectfully disagree.

Ultimately, county lawyers came back with a settlement offer to release the draft Op-ed, only one of the many documents at issue in this case, and cover just a portion of our legal bills.

To be clear: We won’t settle away the public’s right to know.

Yet rather than continuing to argue in court with tax dollars being spent, I reiterate the same proposal I made to Spitzer: The County of Orange should simply choose to release the records and cover our legal bills, which is what will happen anyway when we win.

Most importantly, county officials should consider working with us to convene a conference for Orange County elected officials on disclosure.

This is an issue that needs more public discussion, more guidance. Our goal is compliance with the laws that our legislature has adopted.

In addition, mistakes on reading public access laws by elected officials and government lawyers can really cost taxpayers.

Note that the County of Orange recently lost a lawsuit to the Sierra Club over public accessibility to government maps, costing taxpayers over $1 million. Our last lawsuit against the County of Orange cost taxpayers more than $120,000 in legal fees when the county lost.

Elected leaders, government bureaucrats and taxpayers deserve to have a better understanding when they are doing the public’s business, about what is on and off the record.

It’s time for a robust countywide discussion on just how open our government really is under the law.

To start the conversation, we contend that our state constitution has drawn the lines pretty starkly in favor of disclosure.

The introduction to the Ralph M. Brown Act (which ensures our meetings are open and transparent) set a pretty transparent standard back in 1953.

“In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the governing bodies they have created.”

  • verifiedsane

    Spitzer and the county are playing liars poker with the tax payers money…he wins even if he loses…after all, DELAY is the greatest defense employed by government against the people they seldom represent…next up, Spitzer begins a perpetual game of KICK The CAN…

  • OCservant_Leader

    The BOS knew they were violating the CPRA and CoCo knew it but yet they continue to defend. Why? They do not respect the law and it’s not their money.

    It’s in the OC Culture. The leadership sets the tone. This is why the Agencies withhold, alter and destroy public records on a regular basis.

  • Paul Lucas

    Cheers on the ruling Norberto. IMHO if Todd is the one who started this thing he should be liable for the legal fees to be paid out of his 1 million dollar central committee fund.

  • LFOldTimer

    It’s unconscionable that Spitzer would waste a sizable amount of our public funds to fight established law that protects the basic First Amendment rights of a news reporter. A first year law student should understand the sanctity of those basic rights. Besides, this matter is of great ‘public interest’ which magnifies it’s importance. Obviously, it was an attempt to throw up obstacles and barriers to thwart the public’s right to know. An exercise in #&$-covering. Seriously, do we want a guy like this running the District Attorney’s office? Wake up, folks.

    • David Zenger

      “It’s unconscionable that Spitzer would waste a sizable amount of our public funds to fight established law that protects the basic First Amendment rights of a journalist.”

      Yeah, but they all went along with it, didn’t they? An why not? A free chance to test the anti-free speech waters. They never would have spent a dime of their own dough.

  • David Zenger

    It’s not their money.