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Judicial Watch • Felarca v. Berkeley Unified reply to opposition MSJ 06282

Felarca v. Berkeley Unified reply to opposition MSJ 06282

Felarca v. Berkeley Unified reply to opposition MSJ 06282

Page 1: Felarca v. Berkeley Unified reply to opposition MSJ 06282

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Date Created:September 17, 2018

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Case 3:17-cv-06282-VC Document Filed 09/17/18 Page
ROBERT PATRICK STICHT (SBN 138586)
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
Telephone: (202) 646-5172
Facsimile: (202) 646-5199
Email: rsticht@judicialwatch.org
California Office:
2540 Huntington Drive, Suite 201
San Marino, 91108
Telephone: (626) 287-4540
Attorney for Real Party Interest,
Judicial Watch, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT CALIFORNIA
YVETTE FELARCA, LORI NIXON,
LARRY STEFL,
Plaintiffs/Petitioners,
BERKELEY UNIFIED SCHOOL
DISTRICT, DONALD EVANS, JANET
LEVENSON,
JUDICIAL WATCH REPLY
PLAINTIFFS OPPOSITION
JUDICIAL WATCH MOTION FOR
SUMMARY JUDGMENT AND
SUPPORT ITS MOTION FOR
SUMMARY JUDGMENT
Defendants/Respondents.
CASE NO.: 17-cv-06282-VC
JUDICIAL WATCH,
Real Party Interest.
Date:
Time:
Location:
Judge:
October 2018
10:00 a.m.
Courtroom
Hon. Vince Chhabria
Case 3:17-cv-06282-VC Document Filed 09/17/18 Page
TABLE CONTENTS
INTRODUCTION ...........................................................................................................................1
II.
ARGUMENT ...................................................................................................................................1
Municipal Liability Does Not Apply ......................................................................................1
Section 1085 Petitions Have Place Federal Court .........................................................2
Plaintiffs Misperceive Misconstrue the Nature Section 1085 Petition ........................4
Plaintiffs Section 1983 Claim Also Fails the Merits ........................................................5
Plaintiffs Declarations Not Revive Plaintiffs Fatal Claims ............................................7
Plaintiffs Confuse The Public and Governmental Interests Disclosure With Their
Private Interests Withholding Plainly Public Records ........................................................7
Plaintiffs Cannot Rely The Deliberative Process Privilege ...............................................8
Plaintiffs Alleged Terrorist Attack References Are Contradicted Plaintiffs
Evidence And The Record And Should Disregarded Hyperbole .................................9
Plaintiffs Privacy Claim Was Waived And Also Has Merit ..........................................10
III.
CONCLUSION ..............................................................................................................................12
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TABLE AUTHORITIES
Cases
Balenger Madera Unified Sch. Dist.,
963 F.2d 248 (9th Cir. 1992) ...................................................................................................................1,
Caldecott Superior Court,
243 Cal. App. 4th 212 (Cal. Ct. App. 2015) ...............................................................................................8
CBS, Inc. Block, Cal.3d 646 (1986) ...............................................................................................................................4,
Connick Myers,
461 U.S. 138, 149 (1983) .........................................................................................................................5,
City Limits Nev., Inc. Cnty. Sacramento,
2006 U.S. Dist. LEXIS 75414 (E.D. Cal. Oct. 2006) ..............................................................................3
Doe Reed,
561 U.S. 186 (2010) .....................................................................................................................................5
Fresno Unified Sch. Dist. K.U.,
980 Supp. 1160 (E.D. Cal. 2013)........................................................................................................3
Garcetti Ceballos,
547 U.S. 410 (2006) .................................................................................................................................5,
Hill County Sacramento,
466 App 577 (9th Cir. 2012) ...............................................................................................................2 Ke,
2017 U.S. Dist. LEXIS 197381 (N.D. Cal. 2017) .......................................................................................3
Katz United States,
389 U.S. 347 (1967) ..................................................................................................................................10
Kirchmann Lake Elsinore Unified Sch. Dist., Cal. App. 4th 1098 (Cal. Ct. App. 4th Dist. 2000) .................................................................................1
Maldonado Harris,
370 945 (9th Cir. 2004) ......................................................................................................................1
Marken Santa Monica-Malibu Unified School Dist.,
202 Cal. App. 4th 1250 (Cal. Ct. App. 2012) .........................................................................................3,
Mory City Chula Vista,
2011 U.S. Dist. LEXIS 19874 (S.D. Cal. 2011) ..........................................................................................3
NAACP Alabama,
357 U.S. 449 (1958) .....................................................................................................................................6
New York Times Sullivan,
376 U.S. 254, 270 (1964) ............................................................................................................................6
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Pac. Bell Tel. Co. City Walnut Creek,
428 Supp. 1037 (N.D. Cal. 2006) .......................................................................................................3
Perry Schwarzenegger,
591 1147 (9th Cir. 2010) ....................................................................................................................5
Rodriquez Cnty. Los Angeles,
891 F.3d 776, 803 (9th Cir. 2018) ..............................................................................................................2
San Francisco Apt. Ass City Cnty. San Francisco,
142 Supp. 910 (N.D. Cal. 2015) .........................................................................................................3
Shaheen Cal. Supreme Court,
2002 U.S. Dist. LEXIS 24969 (N.D. Cal. 2002) .........................................................................................3
Unnamed Physician Board Trustees, Cal. App. 4th 607 (2001) ........................................................................................................................4
Will Mich. Dep State Police,
491 U.S. (1988) .......................................................................................................................................1
Wilridge Kernan,
2018 U.S. Dis. LEXIS 92088 (N.D. Cal. 2018)...........................................................................................2
Statutes U.S.C. 1983 ..........................................................................................................................................1
Cal. Code Civ. 1085................................................................................................................ Passim
Cal. Gov Code
6254(c) ....................................................................................................................................................10
6254(k) ..................................................................................................................................................5,
6255(a) ........................................................................................................................................4,
6258.......................................................................................................................................................3,
Constitutional Provisions
Cal. Const., art. subd. (b)(1) ..............................................................................................................8
U.S. Const. amend. .......................................................................................................................... Passim
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JUDICIAL WATCH REPLY PLAINTIFFS OPPOSITION
JUDICIAL WATCH MOTION FOR SUMMARY JUDGMENT AND SUPPORT ITS MOTION FOR SUMMARY JUDGMENT
INTRODUCTION now abundantly clear that Plaintiffs filed their lawsuit without considering any the
complex jurisdictional, procedural, and substantive issues raised their claims. Plaintiffs largely
ignore the only claim they offer the basis for the Court jurisdiction their federal civil rights claim
under title 42, section 1983 the U.S. Code. They also ignore the incontrovertible fact that they cannot
pursue CPRA claim federal state court. The CPRA does not allow it. The only CPRA-related
claim potentially available them petition for writ mandate under section 1085 the Code
Civil Procedure. Not only section 1085 petition limited procedural mechanism that allows
challenges nondiscretionary government actions, but federal courts have regularly declared they have authority apply this California procedural rule and routinely decline exercise supplemental
jurisdiction over such petitions. Plaintiffs provide reason why the Court should deviate from these
federal precedents and consider the merits section 1085 petition this case. Name-calling and
attack words like troll, fascist, alt-right, and witch-hunt are not substitutes for evidence and legal
analysis. Nor are uninformed attempts impute viewpoints characteristics litigation adversary.
Summary judgment should entered against Plaintiffs all their claims.
II.
ARGUMENT
Municipal Liability Does Not Apply. its opening brief, Judicial Watch demonstrated that, state agencies, California school
districts enjoy Eleventh Amendment immunity from suits law equity filed federal court. See
e.g., Balenger Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992). Judicial Watch also
demonstrated that, even BUSD were not immune from suit, not person for purposes
section 1983 claim. Will Mich. Dep State Police, 491 U.S. (1988); Maldonado Harris, 370
F.3d 945, 951 (9th Cir. 2004); Kirchmann Lake Elsinore Unified Sch. Dist., Cal. App. 4th 1098,
1104-05 (Cal. Ct. App. 4th Dist. 2000). irrelevant that Plaintiffs not seek monetary damages
from Defendants. arm the state, BUSD cannot sued federal court for monetary damages injunctive relief. Defendants Evans and Levenson can only sued federal court, their official
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capacities, for injunctive relief. Even then, official capacity lawsuits against Defendants Evan and
Levenson are limited alleged violations federal law.
Plaintiffs ignore these clear, incontrovertible legal conclusions, abandon their pleadings, and
invoke the doctrine municipal liability. Plaintiffs newly-minted argument fails for multiple reasons.
First, BUSD not municipality. Balenger, 963 F.2d 254. Second, Plaintiffs never brought
municipal liability claim and never alleged BUSD was acting pursuant official policy. Rodriquez Cnty. Los Angeles, 891 F.3d 776, 803 (9th Cir. 2018). Plaintiffs also present evidence that
BUSD was acting pursuant official policy. was not. BUSD was fulfilling its obligations under
state law.
Plaintiffs also never alleged nor presented any evidence that BUSD failed train employees manner that amounts deliberate indifference constitutional right[.] Rodriquez, 891 F.3d
802. Nor did they plead present any evidence demonstrating that the individual who committed the
constitutional tort was official with final policy-making authority ratified subordinate
unconstitutional decision action and the basis for it. Id. (internal quotation marks and citation
omitted). fact, Plaintiffs never pled nor presented evidence demonstrating that anyone committed
constitutional tort. irrelevant that Superintendent Evans may have told King Middle School
teachers October 2017 that BUSD would comply with Judicial Watch CPRA request. that point,
BUSD had not even begun search for records responsive the request, and decision had been
made about releasing any particular records. The decision release particular records was not made
until the Spring 2018 (Sticht. Decl. paras. 14-15); there evidence the record about who
decided release any particular record ratified decision release any particular record. There
simply municipal liability.
Plaintiffs argue that context matters bringing section 1085 petitions federal court, but fail
Section 1085 Petitions Have Place Federal Court.
show why, legally, this particular context, the Court should consider Plaintiffs section 1085 petition
here. They offer reason why the Court should deviate from long line cases holding that section
1085 does not apply federal court and declining exercise supplemental jurisdiction over section
1085 petitions. Wilridge Kernan, 2018 U.S. Dis. LEXIS 92088, (N.D. Cal. May 30, 2018) citing
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Hill County Sacramento, 466 App 577, 579 (9th Cir. 2012) (section 1085 does not apply
federal court); Ke, 2017 U.S. Dist. LEXIS 197381, **3-4 (N.C. Cal. Nov. 30, 2017) (section 1085
does not apply federal court); San Francisco Apt. Ass City Cnty. San Francisco, 142
Supp.3d 910, 917 (N.D. Cal. 2015) (section 1085 does not apply federal court); Fresno Unified
Sch. Dist. K.U., 980 Supp.2d 1160, 1184 (E.D. Cal. 2013) (declining supplemental jurisdiction over
section 1085 petition); Mory City Chula Vista, 2011 U.S. Dist. LEXIS 19874 (S.D. Cal. Mar.
2011) (declining supplemental jurisdiction over section 1085 petition); City Limits Nev., Inc.
Cnty. Sacramento, 2006 U.S. Dist. LEXIS 75414, *10 (E.D. Cal. Oct. 2006) (declining
supplemental jurisdiction over section 1085 petition); Pac. Bell Tel. Co. City Walnut Creek, 428
Supp. 1037, 1055 (N.D. Cal. 2006) (declining supplemental jurisdiction over section 1085 petition);
Shaheen Cal. Supreme Court, 2002 U.S. Dist. LEXIS 24969 (N.D. Cal. Dec. 27. 2002) (section
1085 does not apply federal court). Plaintiffs fail cite single case holding otherwise.
Plaintiffs could have filed section 1085 petition state court once BUSD decided which
records intended disclose Judicial Watch;1 they chose ignore BUSD extant right make
claims exemption under the CPRA the first instance and filed unprecedented federal lawsuit
instead. While correct that Judicial Watch makes record requests under the CPRA and has filed
section 1085 petitions for writs mandate enforce the CPRA provisions, has done only
state court, and only then companion claim complaint for injunctive declaratory relief. See
Cal. Gov Code 6258. its twenty-four years history submitting thousands public records
requests and litigating hundreds public records lawsuits state and federal courts across the country,
Judicial Watch has never had third-party file suit stop government agency from responding one its requests. also has never been required litigate state public records act lawsuit federal Marken, the leading case upon which Plaintiffs rely, the Second District Court Appeal
described the procedure: the public agency elects disclose records response CPRA request, absent independent
action for declaratory relief traditional mandamus, judicial forum will exist which party
adversely affected the disclosure can challenge the lawfulness the agency action. [I]n the case third party seeking challenge agency decision disclose documents, the Legislature has not
specified any special procedures resolve the issue. petition for writ mandate the appropriate
procedure.
Marken Santa Monica-Malibu Unified School Dist., 202 Cal. App. 4th 1250, 1267 (2012).
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court. context matters Plaintiffs argue, Plaintiffs fail show why the context here warrants
different outcome.
Plaintiffs also err their response Judicial Watch argument about the limited nature
Plaintiffs Misperceive Misconstrue the Nature Section 1085 Petition.
section 1085 petition reverse-CPRA lawsuit. Judicial Watch does not argue that determining what the public interest solely the prerogative the government. Such claim nonsensical. Rather,
Judicial Watch correctly demonstrated and Plaintiffs failed rebut that third parties bringing section
1085 petitions challenge decisions disclose records under the CPRA are limited the arguments
they can make. Because section 1085 mandamus provision, petitioners must plead and prove
clear, present, ministerial duty upon the part the respondent and correlative clear, present, and
beneficial right the petitioner the performance that duty. Marken Santa Monica-Malibu
Unified Sch. Dist., 202 Cal. App. 4th 1250, 1266 (Cal. Ct. App. 2012). Mandamus will not lie
control exercise discretion, i.e. compel official exercise discretion particular manner.
Id. Mandate will not issue compel action unless shown the duty the thing asked for
plain and unmixed with discretionary power the exercise judgment. Unnamed Physicians
Board Trustees, Cal. App. 4th 607, 618 (Cal. App. Ct. 2001). Judicial Watch understands Plaintiffs section 1085 petition, Plaintiffs argue BUSD erred
deciding disclose the Disputed Documents. According Plaintiffs, BUSD should withhold these
records from Judicial Watch under section 6255(a) the CPRA. Section 6255(a) discretionary
withholding provision, however. authorizes government agency withhold requested record
the agency finds, the exercise its discretion, that the facts the particular case the public
interest served not disclosing the record clearly outweighs the public interest served disclosure
the record. Cal. Gov Code 6255(a). The provision permits the government agency withhold
record. CBS, Inc. Block, Cal.3d 646, 652 (1986). does not mandate withholding any record.
Because section 6255(a) discretionary, not mandatory, and mandamus will not lie control
exercise discretion, Plaintiffs section 1085 petition must fail. Plaintiffs may not second-guess
government agency exercise discretion disclose public record. This not say that
requestor filing complaint for declaratory injunctive relief under section 6258 may not challenge
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government agency exercise discretion under section 6255(a). Nor does mean only the
government gets decide what the public interest, which gross oversimplification
Plaintiffs part. only means decision disclose not disclose under section 6255(a) cannot
challenged section 1085 petition for writ mandate. Plaintiffs cannot succeed section 1085
petition that only second guesses BUSD disclosure decisions under section 6255(a).2
Judicial Watch opening brief showed Plaintiffs section 1983 claim confused and
Plaintiffs Section 1983 Claim Also Fails the Merits.
implausible and not consistent with any recognized First Amendment legal theory. anything,
Plaintiffs reply/opposition makes their claim even more ambiguous and confused. Plaintiffs cite Doe
Reed, 561 U.S. 186 (2010), but ignore the fact that Doe concerned facial challenge the
constitutionality the State Washington public records law. Plaintiffs not allege that the CPRA unconstitutional its face. Plaintiffs also cite Perry Schwarzenegger, 591 F.3d 1147 (9th Cir.
2010). They disregard the fact that Perry was discovery dispute between parties lawsuit
challenging whether ballot measure violated the Due Process and Equal Protection Clauses the
Fourteenth Amendment, not section 1983 claim. Unlike Plaintiffs section 1983 claim, the First
Amendment issue was collateral the underlying dispute Perry.
Plaintiffs also ignore Judicial Watch demonstration that the two categories records subject
Plaintiffs section 1983 claim either are not protected speech are not Plaintiffs speech. result,
the Court need not even reach the question balancing the government interest disclosure against
any burden protected speech. With respect Plaintiffs first category records internal
discussions among King Middle School staff about the storm controversy caused Felarca assault protester Sacramento and subsequent television interviews Judicial Watch cited Connick
Myers, 461 U.S. 183, (1983) and Garcetti Ceballos, 547 U.S. 410 (2006) demonstrate that such
discussions were not even protected speech. Plaintiffs make effort rebut refute this showing,
Despite Judicial Watch having raised the issue directly its opening brief, Plaintiffs still
not invoke section 6254(k) conjunction with their First Amendment claims. They assert their
reply/opposition, but only the context their newly-found deliberative process privilege claim.
Judicial Watch submits that, failing invoke section 6254(k) twice now the context their First
Amendment claims their opening brief and their reply/opposition Plaintiffs have waived any
such argument.
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effectively conceding the point. Instead, they argue that the internal discussions are protected from
disclosure the deliberative process privilege ambiguous, undefined privacy right.
Plaintiffs also did not and cannot rebut refute Judicial Watch showing that what Plaintiffs
describe their fourth category records emails and messages from parents and members the
public about Felarca are not even Felarca speech. They are the speech persons who contacted
BUSD King Middle School express concern about criticize, sometimes harsh terms, Felarca
behavior and her calls for the violent suppression what she deems fascist speech others.3
Violently attacking someone the street not protected speech; and the right freedom speech
does not include insulating speaker from public criticism, especially when the speaker seeks out the
national spotlight.4 See New York Times Sullivan, 376 U.S. 254, 270 (1964) (the First Amendment
reflects profound national commitment the principal that debate public issues should
uninhibited, robust, and wide-open, and that may well include vehement, caustic, and sometimes
unpleasantly sharp attacks. Unsurprisingly, Plaintiffs provide authority for their strikingly dubious
claim that the First Amendment privilege they invoke prevents publication one person speech
commenting criticizing the actions speech another. Plaintiffs also completely fail provide
any evidence argument demonstrating that disclosure this fourth category records will reveal
any private, internal, otherwise non-public aspect Felarca speech. The records issue are
distinctly different from private, internal, and non-public information issue NAACP Alabama,
357 U.S. 449 (1958), Doe, supra, and Perry, supra. Because the records issue are not Felarca
speech and claim made that their disclosure will reveal any private, internal, otherwise non-public
information about Felarca speech, there can chilling effect, and the Court need not even reach
the issue balancing the government interest disclosure against any burden protected speech.
Felarca characterized the Sacramento event which she attacked the protester the Nazi
recruitment rally and declared, us, there free speech for fascists. Sticht Decl., Ex. 2:17
and 3:8. She described fascist someone who organizing mass movement that attacking
women, immigrants, black people, other minority groups movement genocide. Id., Ex. 3:79. her second declaration, Felarca bemoans the concerted effort across the country against
her, but says she willing endure continue political leader. See Dkt. Entry No. 82-12 para. (emphasis added).
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Case 3:17-cv-06282-VC Document Filed 09/17/18 Page try bolster their plainly deficient claims, Plaintiffs submit declarations, all but three
Plaintiffs Declarations Not Revive Plaintiffs Fatal Claims.
which appear from October November 2017.5 None the 2017 declarations are probative.
They were signed well before BUSD began its search for records responsive Judicial Watch request
and some six months before BUSD decided which records would produce whole part. Again, decision production was made until the Spring 2018. Sticht Decl. paras. 14-15. result,
the declarations reflect level generality that renders them completely speculative about the
disclosure any particular record.
Plaintiffs new declarations also not remedy the multiple problems Judicial Watch cited its
opening brief. While Plaintiffs Nixon and Steffl now swear they authored some the handful email
messages included among the alleged internal deliberations that comprise Plaintiffs first category
records, they not claim that any the messages they authored constitute First Amendment-protected
advocacy expression. Nixon Decl. (Dkt. Entry No. 82-18) para. Stefl Decl. (Dkt. Entry No. 82-
19) 4th bullet point. Rather, appears more clearly than ever that the messages are administrative
communications, not protected advocacy expression. Garcetti, 547 U.S. 421; Connick, 461 U.S.
149.
Plaintiffs Confuse The Public and Governmental Interests Disclosure With Their
Private Interests Withholding Plainly Public Records.
Plaintiffs are wrong asserting that Judicial Watch has avoided addressing the public and
governmental interest disclosure. not avoidance point out that Plaintiffs brought claims
implicating host jurisdictional, procedural, and substantive issues fatal their lawsuit, but
neglected failed consider these issues. Such issues are unavoidable.
Plaintiffs also fundamentally misperceive Judicial Watch argument about what the public
business and the public and governmental interest disclosure. Neither have any bearing Felarca
political views. Her views are largely irrelevant. What most relevant that Felarca caused storm
controversy that significantly burdened her public employer, her fellow teachers and co-workers, and
students and parents students who attend King Middle school. Records demonstrating this burden are
Declaration No. undated. Mark Airgood declaration implausibly dated October 29,
2018. The declarations Joseph Hermann and Angela Dancheva are unsworn.
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plainly the public business, and the records this case clearly so. claim otherwise erroneous.
When business receives customer complaints, records those complaints undoubtedly are the
business records. They are not the customer records. Likewise, the complaints and comments
BUSD received about Felarca, then circulated among BUSD officials and staff discuss how
respond, are BUSD public records. The public plainly has interest the records because, among
other interests, the public has interest learning how BUSD was burdened the controversy
Felarca created, how BUSD officials, teachers, and staff responded that controversy, and whether and what extent the controversy affected BUSD educational mission. All are significant public issues.
Access such information concerning the public business exactly what the California Constitution,
art. subd. (b)(1) and the CPRA were intended secure.
Plaintiffs double down their deliberative process privilege claim. Judicial Watch
Plaintiffs Cannot Rely The Deliberative Process Privilege.
demonstrated its opening brief that Plaintiffs never invoked the deliberative process privilege their
pleadings. Plaintiffs reply/opposition does not rebut refute this assertion. Their deliberative process
argument should rejected for this reason alone.
While Plaintiffs claim the deliberative process privilege incorporated into the CPRA
section 6254(k), they are mistaken. arises under section 6255(a). See, e.g., Caldecott Superior
Court, 243 Cal. App. 4th 212, 225-26 (Cal. Ct. App. 2015). discretionary withholding, not
mandatory one. CBS, Inc., Cal.3d 652. protects not only the mental processes which
given decision was reached, but also conversations, discussions, debates, deliberations and like
materials reflecting advice, opinions, and recommendations which government policy processed
and formulated. Caldecott, 243 Cal. App. 4th 225. Felarca describes these emails messages that
Plaintiffs not dispute the compelling public interest BUSD educational mission;
instead they contend that the accomplishment their educational mission should fundamental
privacy right the teachers/staff and that basis the officials/teachers/staff emails this case should withheld from the public. Plfs Reply/Opposition Plaintiffs view, the teachers are more
capable asserting the public interest maintaining quality public education system[.] Id. 10. support for this highly unorthodox idea that public education should carried out private when
teachers are politically controversial, Plaintiffs offer authority and instead rely declarations stating
the teachers/staff not want their emails subject public scrutiny. Id. n.6. Even this position not universally held plaintiffs suggest since some employees availed themselves the opportunity
for initial turn-over records before BUSD conducted its search. Def Brief 4:10.
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teachers and staff sent each other the King conference school list serve about the threats and
harassment facing the school. Felarca 2nd Decl. para. Lori Nixon and Larry Stefl describe them their latest declarations discussions about the threats being leveled school staff and how best respond them. Nixon Decl. (Dkt. Entry No. 82-18) para. Stefl Decl. (Dkt. Entry No. 82-19) 3rd bullet point. Plaintiffs deny that the persons who participated these discussions are
policymakers. See Supplement Plfs Reply (Dkt. Entry No. 83-1) not apparent from these
descriptions that the emails ever reached policymakers. BUSD determined, the exercise its
discretion, disclose these emails, albeit with names, email addresses, and contact information
redacted. Plaintiffs unpled claim that BUSD somehow erred not invoking inapplicable privilege withhold these records their entirety nothing more than second guessing BUSD decision.
Plaintiffs offer compelling justification for second guessing BUSD decision produce them, albeit
with redactions, Judicial Watch and the public. addition, Plaintiffs fail explain how external communications emails from parents about
whether their children should remain Felarca classroom could subject privilege that
protects internal communications about the formulation government policy. BUSD decided release
these emails with personal names, email addresses, and contact information redacted. The emails
question are not internal deliberations about government policy. Caldecott, 243 Cal. App. 4th 225.
Plaintiffs Alleged Terrorist Attack References Are Contradicted Plaintiffs
Evidence And The Record And Should Disregarded Hyperbole.
Plaintiffs references threatened terrorist attacks are obvious hyperbole and should
disregarded. The evidence they cite paragraph Felarca second declaration contains such
factual assertion. Plaintiffs also not refute Judicial Watch demonstration that Plaintiffs own
counsel dismissed the alleged threats very unserious February 2017 media interview. Sticht
Decl. para. 12.
Other evidence submitted Plaintiffs with their reply/opposition confirms Plaintiffs counsels
assessment. June 29, 2016 message, BUSD Superintendent Evans and Board President LevyaCutler stated that email threat had been received and was forwarded the FBI: The FBI has
reviewed the email, and their criteria considered low level threat. Felarca Second Decl.
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Exhibit However, the Berkeley Police and the District are taking the threat seriously; have
increased police patrols and security, and have relocated two summer school camps that rent our
facilities during the summer. Id. are grateful Principal Janet Levenson for dealing immediately
and thoughtfully with the situation, and District staff for finding alternative space for summer camps.
Id. Plaintiffs hyperbole aside, nothing the record warrants this Court issuing writ mandate
reverse BUSD decision release, albeit with some redactions, what Plaintiffs have identified their
third category materials. anything, the exhibit (Felarca Second Decl., Exhibit further confirms
that disclosure the requested records important help the public better understand both the
significant burden Felarca imposed BUSD and King Middle School officials, staff, parents, and
students, and how BUSD and King Middle School officials responded that burden.
Judicial Watch loss understand Plaintiffs privacy claim, especially presented
Plaintiffs Privacy Claim Was Waived And Also Has Merit.
Plaintiffs supplement. Judicial Watch understood Plaintiffs had given their section 1983 privacy
claim under the Fourth Amendment. filing entitled Plaintiff List Documents That Should
Withheld Redacted Order Not Violate the First Amendment, Plaintiffs disavowed seeking relief
under the Fourth Amendment. See Dkt. Entry No. Plaintiffs are not arguing withhold
redact any document based the Fourth Amendment. their supplement, however, Plaintiffs
appear argue that the CPRA requires suppression certain BUSD records under the Fourth
Amendment, comparing permanent wiretap public school employees and parents and citing
the landmark Fourth Amendment wiretap case Katz United States, 389 U.S. 347 (1967). Plaintiffs
utterly fail make the connection, any, between Fourth Amendment suppression law and the CPRA.
Any such claim was never pled any event and most certainly has been waived.
What plain that Plaintiffs not allege BUSD somehow erred not invoking the CPRA
express privacy provision, section 6254(c). That provision authorizes the withholding personnel,
medical, similar files, the disclosure which would constitute unwarranted invasion personal
privacy. Cal. Gov Code 6254(c). They also not appear assert claim under section 6252(k).
Plfs Reply/Opposition n.5. the extent Plaintiffs argue their alleged privacy interests provide
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counterweight the public interest disclosure for purposes section 6255(a) balancing test, there little, anything, Plaintiff side the scale.
Plaintiffs have never disputed BUSD evidentiary showing that their privacy interest
communications sent through BUSD email system anything other than minimal. Attached
BUSD Public Information Officer Charles Burress November 2017 declaration were copies
BUSD Employee Acceptable Use Agreement for Electronic Resources the Internet and
Employee Use Technology policy. See Docket Entry No. 21-1 Exs. and The former states, pertinent part:
District staff and contractors are reminded that the District e-mail system, email accounts,
computer accounts and all other user accounts are owned the District. All electronic
mail activities utilizing the District server monitored and logged Communications
and information accessible via the network are subject monitoring and/or review any
time and should not assumed private and can subpoenaed.
Id. Ex. Burress declaration states, The District requires all employees sign Employee
Acceptable Use Agreement for Electronic Resources and the Internet when they accept employment
with the District. Id. para. continues, This Agreement posted the District website and
restated its Employee Handbook. Id. Similarly, BUSD Employee Use Technology policy
states, pertinent part:
Employees shall notified that computer files and electronic communications, including
email and voice mail, are not private. Technological resources shall not used
transmit confidential information about students, employees, district operations
without authority. ensure proper use, the Superintendent designee may monitor employee usage
technological resources, including the accessing email and stored files. Monitoring
may occur any time without advanced notice consent.
Id. Ex. Notwithstanding BUSD employees lack reasonable expectation privacy, BUSD
was careful redact names, email addresses, and contact information protect teachers and staff
privacy. Any further privacy interest Plaintiffs might have the records outweighed the public
interest disclosure. Plaintiffs provide justification for why the Court should second guess BUSD
decision redact the records and order they withheld their entirety instead, especially light
Plaintiffs minimal privacy interest email sent through BUSD email system. the extent Plaintiffs
claim protecting the privacy rights students parents, they fail demonstrate how they have
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Judicial Watch MSJ and Support JWs MSJ
Case 3:17-cv-06282-VC Document Filed 09/17/18 Page
standing authorization assert whatever privacy rights these third-parties might have the records
beyond their names, email addresses, and contact information. Their attempt second guess BUSD
decision redact these records instead withholding them their entirety fails well.
III.
CONCLUSION
For all the reasons stated herein and Judicial Watch memorandum support its motion
for summary judgment, this Court should deny Plaintiffs summary judgment and grant summary
judgment Judicial Watch all Plaintiffs claims.
Dated: September 17, 2018
Respectfully submitted,
JUDICIAL WATCH, INC.
By:
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
Attorneys for Real Party Interest,
JUDICIAL WATCH
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Judicial Watch MSJ and Support JWs MSJ
Case 3:17-cv-06282-VC Document Filed 09/17/18 Page
CERTIFICATE SERVICE hereby certify that September 17, 2018, electronically filed the foregoing JUDICIAL
WATCH REPLY PLAINTIFFS OPPOSITION JUDICIAL WATCH MOTION FOR
SUMMARY JUDGMENT AND SUPPORT ITS MOTION FOR SUMMARY JUDGMENT with
the Clerk the Court for the United States District Court for the Northern District California
using the district CM/ECF system. Participants the case who are registered CM/ECF users will
served the district CM/ECF system.
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
17-cv-06282-VC
Judicial Watch Reply Plaintiffs Opposition
Judicial Watch MSJ and Support JWs MSJ