JOINT STATEMENT
Dear Editor,
While it is unusual for the attorneys for the plaintiffs and defendant to jointly address the media prior to the adjudication of the case, here we feel it is in the public’s interest that we do so in order to address a recent reporting of the voting rights litigation between Southwest Voter Registration Education Project, et al. and the City of Cypress.
The Brown Act requires that most actions a city council takes are transparently deliberated, discussed and voted upon in public, because the public has the right to know not only the decisions a city council makes, but also the discussion, consideration and debate leading up to those decisions. Still, the Brown Act allows city councils to deliberate in private “closed session” concerning some topics, such as real estate and labor negotiations and pending or threatened litigation.
We both recognize the importance of frank discussion in closed session when it comes to pending or threatened legal actions. In certain circumstances, discussing legal strategy in an open forum could put a public agency at a disadvantage when negotiating a settlement or making arguments in court.
On September 13, 2023, the Event-News Enterprise reported vote totals of a closed session legal discussion which were not reported out of closed session by the city attorney. This information is restricted to the elected officials, attorneys and city staff and should not have been revealed. The Event News Enterprise’s decision to report on closed session votes is regrettable.
We are both committed to fair and impartial elections and while we may disagree about whether the California Voting Rights Act has been violated, we both hold that law in high regard and agree that Cypress must abide by it. The disclosure of confidential closed-session information has the potential to disadvantage the City and present an obstacle to frank, productive discussion in closed session and between litigants working to explore potential resolutions that benefit the public.
We call on the Event-New Enterprise to carefully consider the impact of its decision to report closed session discussions and votes and to ensure future coverage of this issue is accurate, fair and thorough.
Kevin Shenkman
Shenkman & Hughes PC
Fred Galante
Attorney for the Defendant
City of Cypress
In response to the City of CypressDear Mayor, Mayor Pro Tem, and Council Members,
The First Amendment Coalition (“FAC”) is a nonprofit public interest organization dedicated to advancing free speech, more open and accountable government, and public participation in civic affairs. I am writing on behalf of FAC to protest the City’s conduct after the Event-News Enterprise published newsworthy information of public concern. As the Supreme Court and numerous decisions have confirmed, the First Amendment guarantees the right of the press to report the news no matter how inconvenient or embarrassing it may be to those in power, and the press may publish information of public concern even if someone within the City broke the law in disclosing it.
As reported in the Event-News Enterprise on September 13, the City has been sued by the Southwest Voter Registration Project under the California Voting Rights Act. In the same story, it was reported that the City Council twice voted in closed session, once 3-2 and once 5-0, to participate in mediation in an attempt to resolve the lawsuit.
Today’s City Council agenda includes an item contending that “the Event-News Enterprise’s decision to report on confidential closed session votes is regrettable and inconsistent with ethical journalism principles” and recommending “an investigation into the disclosure of the closed session information to the Event-News Enterprise.” I also understand the Mayor has publicly accused the Event-News Enterprise of “reckless reporting,” and the City Attorney demanded “a full retraction” without stating any specific errors.
I write to protest any veiled threats to intimidate the press arising from allegations of unethical or reckless behavior or plans to conduct a leak investigation. I presume the City is familiar with the following principles, but I will describe them in the interest of avoiding misunderstanding and upholding freedom of the press.
The First Amendment was designed to “preserve an untrammeled press as a vital source of public information.” Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936). From the earliest days of this nation, the “right of free public discussion of the stewardship of public officials” has been “a fundamental principle of the American form of government.” New York Times Co. v. Sullivan, 376 U.S. 254, 275 (1964).
As the Supreme Court has confirmed, the “Constitution specifically selected the press” to “play an important role in the discussion of public affairs,” and “the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.” Mills v. Alabama, 384 U.S. 214, 219 (1966).
Therefore, the First Amendment “gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.” New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring).
An attack on the press “muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.” Mills, 384 U.S. at 219. The government’s function is to serve the people and defend the Constitution, not to “sit as some kind of journalism review seminar.” Fletcher v. San Jose Mercury News, 216 Cal. App. 3d 172, 187 (1989) (citation and quotation marks omitted). By condemning a newspaper as “unethical” or “reckless” simply for reporting the news and by demanding a retraction without naming any specific errors, the City’s actions undermine respect for press freedom.
Assuming a city official or employee committed a violation of law by disclosing matters discussed in a closed session, the First Amendment protects the Event-News Enterprise’s right to publish information of public concern. Bartnicki v. Vopper, 532 U.S. 514, 535 (2001) (noting “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern” and holding media outlets could not be punished for publishing contents of illegally recorded conversation); Landmark Commc’ns v. Virginia, 435 U.S. 829, 837-38 (1978) (upholding media’s right to publish information about “confidential proceedings of the Judicial Inquiry and Review Commission”).
As the Court of Appeal has explained, the business of the press is “obtaining and publishing newsworthy information through routine reporting techniques,” and “ordinary news-gathering techniques ‘of course, include asking persons questions, including those with confidential or restricted information.’” Ass’n of L.A. Deputy Sheriffs v. L.A. Times Commc’ns LLC, 239 Cal. App. 4th 808, 819 (2015) (quoting Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 519–20 (1986)).
If the City decides to investigate whether any conduct of its own officials or employees resulted in unlawful disclosure of information, it must bear in mind that California’s reporter shield law guarantees absolute immunity against any demand by the city, civil or criminal, for “the source of any information” obtained or published by the Event-News Enterprise or “any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” Cal. Const., art. I, § 2(b); see also Cal. Evid. Code § 1070(a); Miller v. Superior Ct., 21 Cal. 4th 883, 899 (1999); New York Times Co. v. Superior Ct., 51 Cal. 3d 453, 461 (1990); McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 119–20 (2007); O’Grady v. Superior Ct., 139 Cal. App. 4th 1423, 1456–66 (2006).
In addition to immunity against discovery, California and federal law prohibit the issuance of a search warrant for or any search for and seizure of unpublished information, work product, or documentary materials of the Event-News Enterprise related to this matter. Cal. Penal Code § 1524(g) (citing Cal. Evid. Code § 1070); 42 U.S.C. § 2000aa; Citicasters v. McCaskill, 89 F.3d 1350, 1355 (8th Cir. 1996); Morse v. Regents of the Univ. of Cal., 821 F. Supp. 2d 1112, 1121 (N.D. Cal. 2011).
Thank you for your attention to these matters. Please let me know if you have any questions.
Sincerely,
FIRST AMENDMENT COALITION
David Loy
Legal Director
Cypress Mayor “Disappointed”
Dear Editor,
I was disturbed to read an anonymously sourced story that reported information from confidential closed session City Council meetings in violation of state law and misled the community about the City’s legal proceedings concerning a California Voting Rights Act (CVRA) complaint.
In a highly unusual move, even the plaintiff’s attorney, Mr. Kevin Shenkman, stood with the City Attorney in criticizing the story. Mr. Shenkman denied that either he or his client were the sources for the story. Both the plaintiff’s and City’s attorneys condemned the anonymous source of the information disclosed in violation of state law and the newspaper’s regrettable decision to politicize the City’s process for responding to the CVRA complaint. The Event-News Enterprise’s reporting of confidential closed session votes is regrettable, inconsistent with ethical journalism principles, and makes an already difficult situation more divisive.
It is a rare thing indeed for both sides of a lawsuit to stand together against those who would disrupt the judicial process. The joint statement from otherwise opposing attorneys underscores the seriousness of disclosingconfidential information from a closed session meeting. Government Code Section 54963 clearly prohibits revealing information from closed session. If neither the plaintiff nor their attorney were the source for the story, then sadly it appears likely that a member of the City Council broke the law.
It is appalling, to me personally and to the citizens we serve, that a Council Member may have put politics before the law by brazenly violating the sanctity of closed session proceedings. These actions not only undermine the City’s efforts to adhere to state law, they jeopardize our ability to negotiate in good faith on behalf of the residents of Cypress.
The City Council is obligated to uphold the law and ethically bound to work for residents in an honorable and transparent manner. Despite clear directives from our federal and state constitutions, a Council Member mayhave decided the law does not apply to them.
The disclosure of confidential closed session information and the Event-News Enterprise’s reckless reporting do more than disrupt a legally proscribed process, they alsobreach the public trust. Elected officials have a responsibility to honor the rule of law and the oath we take when we become Council Members.
Mayor Pro Tem Minikus and I have called for a full investigation into this matter to ensure that our residents are protected. Cypress deserves a City Council that actsin good faith and puts the law ahead of personal political agendas.
Cypress Mayor Anne Mallari
Sent from my iPhone
