Winning at a price

Hop in the ol’ DeLorean, it’s time to pretend that you were former Sacramento Mayor Kevin Johnson. Damn, what a busy everyday—from power lunches at Grange to double-parking all over the grid. And your office on the third floor of 915 I Street also bustled. Some of your employees were on city payroll. Others, well, who knows how they got paid—one of your private groups or nonprofits probably cut the checks. Anyway, all these workers were emailing lawyers all over the country, and folks were using both private Gmail and city-issued addresses. Who could keep track?!

Enter SN&R: Between the years of 2008 and 2016, former watchdog columnist Cosmo Garvin filed dozens of routine California Public Records Act requests as part of his investigative journalism pursuits.

In 2015, though, Johnson sued SN&R over one of Garvin’s requests. This litigation belied logic; journalists have a protected right to ask for public records. But Johnson was in a bind: He claimed hundreds of private emails sent to (pro bono) attorneys were stuck on the city’s public server, so he sued to stop their release.

Nearly two years later, SN&R prevailed: The mayor had tried to keep 475 records secret, but the court ruled that only 56 emails were, in fact, privileged. The case was a critical victory for freedom of the press. Yet SN&R’s win was bittersweet: The legal tab amounted to $112,000!

This six-figure sum pales in comparison to the city’s general fund or Johnson’s pocketbook. But as a former SN&R staffer privy to the editorial-department budget, $112,000 is crucial when it comes to paying for journalism.

That’s why this past fall, SN&R petitioned to have Johnson reimburse its legal fees. There was precedent. And, remember, if Johnson just kept private biz out of City Hall, SN&R wouldn’t be on the hook for these costs in the first place.

Nevertheless, Sacramento Superior Court Judge Christopher E. Krueger denied SN&R’s motion to recoup the $112,000. The nut of his legal argument is that this paper and Johnson “were both partially successful in meaningful ways” in the case, as he wrote in a ruling dated December 15, 2016.

His assessment isn’t untrue: Of the 475 records in dispute, Johnson did successfully petition for 56 to remain secret. But even Krueger himself wrote that “SN&R, quite obviously, achieved many (but not all) of its litigation objectives in a meaningful way,” including debunking Johnson’s claim that hundreds of documents should remain secret. And, as he also wrote, SN&R “obtained the release of records that otherwise might have been withheld from the public”—a significant triumph as the records reveal Johnson’s use of city staff and others to perform works for his nonprofit groups.

At the very least, the judge should have prorated a reimbursement of fees: SN&R prevailed with 88 percent of the records in question, so it should recover a commensurate sum ($98,560) from Johnson.

Instead, the judge’s ruling establishes an alarming precedent. Can elected officials now indiscriminately mix public and private business, without accountability to the public? Is it now an option to just litigate, and pile on the legal fees, until they’re silenced?

Thomas Jefferson once wrote that he’d prefer a world of “newspapers without government,” in lieu of the antithesis. But with the election of Donald Trump, and rulings such as Krueger’s, we someday soon may not have a choice.