Victory for Government Transparency at the California Supreme Court
A DWT team led by Rochelle Wilcox won an important public records case at the California Supreme Court. The December 2016 decision affirms that invoices submitted to California government agencies by outside law firms are not completely exempt from public disclosure under the state’s Public Records Act once the relevant cases have closed.
The matter arose from concerns over the use of excessive force in the L.A. County jail system. Attorneys hired by the county to defend against excessive force cases were accused of engaging in “scorched earth” litigation tactics and refusing reasonable settlements even when in the best interest of the county.
So in 2013, on behalf of the ACLU of Southern California and Eric Preven, an open-government activist, DWT associates Nicolas Jampol and Giancarlo Urey, with oversight from partner Jennifer Brockett, made a public records request for invoices from the county’s outside litigation counsel on nine excessive force cases.
When the county refused to release all nine cases, claiming some of the records were protected by the attorney-client privilege and work product doctrine, the team filed a petition for a writ of mandate. In June 2014, a Superior Court judge granted the writ. The court said that while information in the billing records revealing legal opinions or reflecting litigation strategy may be redacted, the rest of the invoices had been withheld unlawfully and must be disclosed. The ACLU honored Jampol, Urey, and Brockett with a 2014 Freedom of Information Award for their work on the case.
After the Court of Appeal reversed the trial court’s decision, DWT successfully petitioned for state Supreme Court review. Wilcox briefed and argued the case before the court. Colin Wells and Diana Palacios served on the appellate team as well.
In their decision, the justices held that “the contents of an invoice are privileged only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose….A cumulative fee total for a long-completed matter does not always reveal the substance of legal consultation.”
The ruling was hailed by the ACLU as a “victory for transparency” and has been much-discussed in the legal community and legal media.
Decade-Long FOIA Litigation Finally Settled by Bureau of Prisons
On behalf of Prison Legal News (PLN), a monthly magazine published by the nonprofit Human Rights Defense Center, Ronnie London won closure of a Freedom of Information Act (FOIA) case that, all told, resulted in the release of 11,500 pages of documents from the Federal Bureau of Prisons. The litigation went through multiple rounds of summary judgment and ultimately an appeal to the D.C. Circuit, which is where Ronnie took on the engagement and prevailed. On remand he persuaded the agency to release about half the documents still in dispute. Ronnie also led negotiation of a settlement, which included a $420,000 payment by the bureau for our client’s legal fees. (In addition to DWT, the fees will go to predecessor outside counsel and to PLN’s in-house lawyers, who did the bulk of the work in the district court.) Lisa Zycherman worked on the briefs in the case. Ashley Vulin worked with Ronnie on remand and, with Will Hellmuth, is taking the lead on a similar follow-on case that was not incorporated into the settlement.
First Amendment Coalition Wins Eligibility for Fees in “Drone Memos” FOIA Case
Our client, the First Amendment Coalition (FAC), secured an important victory at the 9th Circuit in its long-running fight with the federal government to publicly release legal memos created during the Obama administration regarding the legality of the executive branch’s use of drones to execute U.S. citizens abroad who are targeted as terrorists. Although the Justice Department turned over two memos to FAC after losing a similar lawsuit to the New York Times and ACLU in New York, a California district court judge determined that FAC could not recover fees for its years of fighting for access to the same memos.
Through its 9th Circuit appeal, FAC sought not only to reverse the district court’s ruling regarding its ability to recover attorneys’ fees incurred during the past five years of litigation, but to have the court recognize the obfuscation that the DOJ undertook for years to prevent the release of this memoranda during the critical time when Americans were debating the legality of the use of drones. The 9th Circuit’s 55-page opinion made clear that the mistake by the district court—which was reversed—was due to its reliance on the government’s representations.
DWT associate Jonathan Segal, in his first appellate argument, successfully argued the case before the 9th Circuit in December 2016. In a unanimous ruling, a three-judge panel overturned the lower court decision, finding that FAC is entitled to recover fees and costs for the whole case and recognizing the appellant’s “dogged determination” in the face of years of DOJ resistance.
Segal was part of a DWT team that was led by Thomas R. Burke and included Diana Palacios and former DWT associates Kathleen Cullinan and Jeff Glasser.
“The 9th Circuit’s decision is a vindication of FAC’s sustained efforts, against relentless opposition from the government, to bring the government’s formerly secret legal reasoning to light,” said FAC Executive Director David Snyder. “It also serves as a reminder that government agencies which improperly stonewall the public’s right of access will be forced to pay for that resistance.”
Appellate Victory Establishes That Nonprofits May Receive Just Compensation for Lost Goodwill
For the first time, nonprofits have a road map to seek just compensation in California for the loss of goodwill in eminent domain cases, thanks to a long and successful litigation effort by our client, Presidio Performing Arts Foundation.
Represented by a cross-office DWT team, our client won a ruling from the state Court of Appeal that the foundation can seek just compensation for the losses it sustained to its goodwill when, as part of a highway improvement project, the state Department of Transportation (Caltrans) seized and destroyed the building that the foundation had leased since 2003, forcing the nonprofit to move to another part of the Presidio.
Caltrans petitioned the California Supreme Court to review or de-publish the appellate decision. But in January 2017, the Supreme Court justices unanimously denied both requests. A jury trial is scheduled for April 2018 to determine the amount of goodwill lost as a result of the taking and the damage award to the foundation.
“Prior to this opinion, there was no California case holding that the California goodwill statute could used by a nonprofit,” says James Parker, who has been working on the case since he was a summer associate at the firm in 2011. Parker was supervised by San Francisco partner Martin Fineman.
Says Parker: “This opinion frees up future courts to use any accepted method for measuring goodwill and adapt the measurement to the individual circumstances of the case. It also expressly holds that nonprofits can recover under the statute and that methods of measurement that work better for nonprofits are appropriate.”
Noting that nonprofits rarely own their own building, Parker observes that “you don’t have to own the building to have a taking—the loss of a leasehold interest is a taking that would make an entity eligible under the statute.”
Presidio Performing Arts Foundation operates a dance company and dance school that, for almost three decades, has promoted cross- cultural understanding through training and performance. The foundation is a longtime client of Davis Wright Tremaine real estate partner Steve Ledoux.
Said Judy Bretschneider, founder and executive director of the foundation: “Thanks to the work of Davis Wright Tremaine, we are finally in a position to be made whole and continue to offer classical world dance and multicultural education to a diverse student body.”
DWT Undertakes National Voting Rights Defense Project
More than 150 DWT lawyers and paralegals raised their hands in the spring of 2017 to participate in a nationwide investigation of state and county compliance with the National Voter Registration Act. Spearheaded by Portland partner Bob Newell in partnership with the American Civil Liberties Union, the project launched with public records requests in many states, seeking information about any purges of voter registration rolls, the criteria for them when done, and how many people were affected.
DWT is also assisting with related litigation. The first suit was filed in Indiana and challenges a state law that permits local election authorities to immediately purge the registrations of Indiana voters— without notice or waiting period— based on a match in the Interstate Voter Registration Crosscheck Program. Research has shown that the Crosscheck program, administered by the Kansas Secretary of State, is inaccurate and unreliable, frequently flagging people incorrectly as potential double voters.
Achieving Clemency Recommendations for Rehabilitated Three-Striker
Mark Bartlett and Rachel Herd appeared before the Washington State Clemency and Pardon Board in September 2017 on behalf of their client, Robbie Burton. Mr. Burton is a three-striker who has been in prison for 21 years and has completely turned his life around. Thanks to Mark and Rachel’s advocacy and preparation, the board saw Mr. Burton’s transformation and his potential, voting in favor of clemency.
The process took Mark and Rachel about a year. They put together a petition for clemency, worked with people who would testify or write letters on Mr. Burton’s behalf, and helped him develop a plan for a post-prison life. One of Mr. Burton’s armed-robbery victims wrote a letter in support of Mr. Burton and several friends testified.
Washington state governor Jay Inslee still has to sign off on the board’s recommendation for clemency, and then Mr. Burton will go through a six-month program to assist him with transitioning to a free life. When he is released, he will have a place to live, a job, and community support, including Narcotics Anonymous and Alcoholics Anonymous.
Mr. Burton, who is now 62 years old, painted the self-portrait shown on the previous page. His case came to DWT through the Seattle Clemency Project.
Helping Disabled Client Discharge Student Loans
Lauren Dorsett devoted more than 100 hours to helping a Seattle woman with severely impaired vision get out from under the crushing burden of student loans. Lauren’s client is unable to see out of her right eye and has only limited vision out of her left. She started losing her vision while attending college and ultimately never finished and obtained a degree. Her condition has since gotten worse and, according to her doctors, will never improve. As a result, her employment opportunities are limited, as is her current and future income.
Under the Bankruptcy Code, student loans may be discharged if the debtor proves that paying the loans will cause an undue hardship. So Lauren filed a lawsuit against the woman’s lenders to seek a judgment declaring that her student loan obligations are dischargeable under this law. Lauren’s client had about $80,000 in federal and private student loans. “We settled with the federal loan lender for a complete discharge of her federal loans, which were about $30,000,” says Lauren. “We also settled with the private loan lender a week before trial, agreeing to a partial discharge, wherein my client only had to pay $4,800 out of the approximately $54,000 owed at that time. She is very happy with the result.”
Reviving a Community-Based Baseball League
DWT’s Pamela Charles handled the reincorporation of a baseball league in Seattle’s historically African-American Central District and obtained re-recognition of its federal tax-exempt status as a chartered league of Little League Baseball Inc., the national Little League organization. Seattle Central Little League had been administratively dissolved by the Washington secretary of state because its annual filings had not been kept current. Microsoft and other major corporations wouldn’t provide employee matching contributions without current documentation of exempt status. The league runs on a very tight budget, granting more than $4,700 of scholarship/fee waivers to players whose families can’t afford to pay the registration fees and desperately needed these corporate funds. The league now has more than 300 youth playing T-ball, baseball, and softball. The league has managed to avoid adopting sponsors for its teams, which continue to use the names of teams from the historic Negro Leagues.
Helping Domestic Violence Victims Secure Protection
Jibraun Riaz has been working eight hours a month with the L.A. County Bar Domestic Violence Legal Clinic helping petitioners seek temporary restraining orders (TROs) against their abusers. The work includes assisting in the preparation of the filing documents and the drafting of a declaration to file with the court.
“To get a TRO you have to fill out a 30+ page application form, which is confusing, non-intuitive, and difficult even for a lawyer to fill out correctly, at least on the first go- around,” Jibraun says. Next comes the declaration. “We try to get them to focus on the important details,” he says, “to describe the abuse, and do it in a way that complies with the rules of evidence so the court does not reject it, along with the TRO request.”
The lawyers provide additional guidance to petitioners on how to file their application and what to do if their TRO is granted. They also advise petitioners on how to serve the abuser in advance of a hearing on a permanent restraint order and how to prepare for that hearing.
“The bravest and most difficult step for a victim of domestic violence is seeking help,” says Jibraun. “Numerous victims wait weeks, months, years for help because they are terrified.”
Defending Against a Governor’s Effort to Suppress Critics on Social Media
In partnership with the ACLU of Maryland, Lisa Zycherman and Christopher Savage filed a lawsuit in August 2017 against Maryland governor Larry Hogan, challenging his policy of censoring constituents’ speech on his official Facebook page by blocking those who disagree with him and deleting their comments. The lawsuit, filed on behalf of four individuals who have been censored by Gov. Hogan, seeks a permanent injunction against the governor’s unconstitutional social media policy as enforced by the governor and his staff.
“The First Amendment protects free speech, especially in forums created by our government for the exchange and interchange of ideas,” Lisa told Washington, D.C., talk radio station WMAL-AM. “Governor Hogan’s official Facebook page is a public forum. In that forum, he has to follow certain rules established by the Constitution, and in this case he’s not allowed to discriminate based on the viewpoints expressed by the commenters.”
In an interview about the case with another D.C. radio station, WTOP- FM, Lisa noted that the governor and his staff “have always touted [his Facebook page] as being a major vehicle for him to engage with and communicate with his constituents.” She said it’s not clear just how many Facebook users have been blocked from the governor’s page, but “we can say that the governor and his staff have blocked or deleted the comments of scores of Marylanders, maybe hundreds.”
Favorable Settlement in Prison Grievance Case
DWT devoted significant resources to the case of an Oregon inmate who was subjected to an escalating pattern of retaliation after he filed a grievance against a correctional officer. The state’s motion for summary judgment failed to dismiss several of the inmate’s claims, at which point the district court assigned DWT to the case. Although the state initially refused to settle, Chris Swift and John McGrory assembled substantial evidence of the defendant’s misconduct, convinced the state to withdraw its key defense, and eventually secured a $35,000 settlement.
Ensuring Recognition of Same-Sex Parental Rights
John Parsi and Anne Marie Tavella assisted the ACLU in an amicus brief to the Alaska Supreme Court in this case, in which one of the women in a same-sex couple was excluded from a hearing involving her children because she was not the biological parent. The DWT brief helped produce a settlement with the state of Alaska recognizing the excluded spouse as a parent and remanding the case to the lower court to conduct the hearing with her included as a parent of the two children.
Confronting Racial Bias Among Juries
Peter Karanjia led a DWT team that filed a successful amicus brief on behalf of the Hispanic National Bar Association, LatinoJustice, and the Anti-Defamation League in an important Supreme Court case addressing whether criminal convictions should be set aside where the defendant produces evidence showing that a member of the jury exhibited racial bias during deliberations. In this case, a criminal defendant sought to introduce evidence that a juror showed racial bias during deliberations by making various inflammatory statements about the defendant (for example, urging the jury to convict “because he’s Mexican and Mexican men take whatever they want”). The Colorado Supreme Court held that state evidentiary rules bar any inquiry into jury deliberations—even for the purpose of uncovering evidence of racial bias. DWT’s amicus brief urged that the Colorado Supreme Court’s decision be reversed, and in March 2017 the U.S. Supreme Court agreed—noting the “imperative to purge racial prejudice from the administration of justice.”
Assisting Veterans in Seattle
The Seattle Stand Down is an annual event to provide a wide variety of social, housing, medical, legal, and other services to homeless and other veterans. DWT has participated in the Stand Down each year since the event began in 2001. Recently we have partnered with lawyers who volunteer through the Washington Association of Corporate Counsel (ACC).
The legal services consisted of intake and advice regarding vacating criminal records. This is an important service to veterans who are trying to clear the way to get employment and housing, and sometimes to simply help them feel better about their past as they try to move forward. Several of our attorneys agreed to work further with veterans who appeared eligible to have records vacated.
DWT volunteers included lawyers Mig Schaaf, Stuart Dunwoody, Mimi Gentry, Ken Payson, and Chris Morley. ACC volunteers included lawyers from Expedia, Microsoft, BSquare, Zipcon, SmartSheet, Salesforce, and Trident Seafoods.
Providing Tax Assistance
David Silverman of our Washington, D.C., office volunteers annually with Volunteer Income Tax Assistance (VITA) to help low-income people file their income taxes and get every cent of refund they may be due. In many cases, those “refunds” consist of credits, such as the earned income credit and child tax credit, that exceed what the IRS withheld and constitute additional, much-needed income for these folks. In 2017, the office where David volunteers and acts as a site coordinator filed 539 returns. The average refund per filer was almost $3,000. Says David: “This is an extremely enjoyable and rewarding pro bono opportunity and I plan to participate for as long as I am able.”
Helping Provide Foster Children a Stable Home
In collaboration with The Permanence Project of the Children’s Law Center of Washington, DWT started a new pro bono program in 2017 to finalize foster care adoptions.
The need for a better outcome for kids in foster care is clear. According to the Children’s Law Center, in Washington state more than 22 percent of foster youth are homeless after age 18, with 33 percent of their incomes below the federal poverty level. More than 98 percent of foster youth fail to obtain a bachelor’s degree by age 25.
Attorney Andrew Schneidler, founder of the Children’s Law Center, trained (and continues to train) a team of DWT volunteer lawyers and staff on the process of facilitating and finalizing adoptions for kids in foster care. Says Schneidler: “As an adoptions attorney (and foster and adoptive parent of three), I witnessed firsthand where children were separated from their grandparents and placed into foster care simply because their relatives couldn’t afford legal services that would ensure permanency. I saw other kids forced to languish in foster care longer than necessary due to the lack of affordable legal services.”
The project’s clients are usually foster parents or family members, and the adoptions are unopposed. In September 2017, attorney Lisa Koperski finalized the adoption of a young boy by his grandparents. Joseph Hoag will be working on the adoption of an older boy from the same family to the same grandparents. Fred Haist and Joanne Montague have each taken a case that came from a Washington State Department of Social and Health Services case worker. Fred’s case involves a 24-year-old woman adopting her 13-year-old sister. Joanne’s clients are relative caregivers who are ready to finalize adoption of their 6-year-old great- nephew. The family has already adopted two of his brothers.
DWT’s foster adoptions team also includes Chuck Maduell, Christian Mecham, Jill Jordan, Michaela Malone, and Michelle Kritsonis.
Facilitating Adoption of Kids Who Need Permanency
Almost 30,000 children who are victims of abuse and neglect are entrusted to the care of the Los Angeles County Juvenile Dependency Court system. Whenever possible, the court strives to preserve and strengthen families so children can be raised in their own homes. If the court determines that a child cannot be returned safely to his/her birth parent(s), adoption may be identified as the permanent plan.
Public Counsel, the public interest law firm of the Los Angeles County and Beverly Hills Bar Associations and the largest pro bono law firm in the nation, partners with attorneys at various law firms to represent adopting parent(s) in adoption cases. Having participated in the program for many years at her prior law firm, Danielle Gerson brought this program to our L.A. office when she joined us as an associate in 2016.
So far, Danielle and Jordan Keville have worked to finalize the adoptions of three children. Their tasks include meeting with the adoptive parent(s); completing and filing the necessary legal documents to finalize the adoption; appearing with the family at the adoption finalization hearing; working to ensure that the child being adopted receives any needed services, such as special medical treatment; and/ or advocating for the adopting parent(s) to receive the appropriate Adoption Assistance Program rate based on the child’s condition and needs and to receive any retroactive foster care payments to which they are legally entitled.
Three more DWT lawyers will be participating in the program in 2018.