Metropolitan News-Enterprise


Thursday, July 17, 2008


Page 1


Court Tosses Records Request For Failure to Name Party


By STEVEN M. ELLIS, Staff Writer


The Third District Court of Appeal declined yesterday to consider whether personal e-mails sent by a city councilmember using personal resources but discussing city business are “public records” because the newspaper seeking review failed to name the official from whom it sought the documents as a party.

Dismissing the Tracy Press’ petition for review of an order by the San Joaquin Superior Court denying its Public Records Act request, the Court of Appeal held that the newspaper failed to include an indispensable party when it omitted Tracy City Councilmember Suzanne Tucker’s name from its petition despite having previously named her as a party in the superior court proceeding.

The newspaper brought a petition for mandate in the superior court in 2007 after the City of Tracy, located west of Modesto, responded to the newspaper’s requests for dealings between city officials and the nearby Lawrence Livermore National Laboratory, but did not produce e-mails Tucker had exchanged with the laboratory from her personal computer at home through her private e-mail account.

Concluding that Tucker was not a “local agency” as defined in the act, and that writings of an individual councilmember that were not prepared, owned, used or retained by the city were not “public records,” the superior court denied the petition.

Tracy Press, utilizing the review procedures set forth in the act, then filed a petition for writ of mandate in the Court of Appeal, in which it named the superior court as the respondent. The petition also identified the city as the lone real party in interest.

The court issued an order to show cause why it should not grant the writ, but the notice and accompanying copy of the petition neither included Tucker’s name nor were served upon her, and the city contended that the newspaper had failed to list an indispensable party.

The newspaper countered that the failure to list Tucker was merely a “defect.” Arguing that it had failed to name any real parties in interest, and that it was the court clerk who added the city’s name, the newspaper cited Code of Civil Procedure Sec. 475—which requires a court to disregard defects that do not affect the substantial rights of the parties—and claimed the omission was a clerical error to be disregarded.

However Justice George Nicholson opined that the omission was not a defect, but simply meant that Tucker was not a party to the action. He wrote that any order requiring the councilmember to act would violate her right to due process, and then considered whether Tucker was an “indispensable” party whose absence required dismissal.

Focusing on the potential prejudice on Tucker under Sec. 389(b) of not being joined, Nicholson rejected Tracy Press’ arguments that the councilmember’s interests were adequately protected by the city, and noted that Tucker’s interests in the proceeding were “unique,” in that she created and possessed the writings the newspaper wanted.

Nicholson also noted that the newspaper suggested no alternative method that would favor the newspaper while protecting Tucker’s interests, and pointed out the risk of conflicting orders.

“[A]n order has been entered in favor of Tucker on the very issue that Tracy Press proffers here,” he wrote. “However, because the superior court’s order as to Tucker is final and now unreviewable in this court, any order that we were to issue requiring Tucker to produce the e-mails would be precluded by the finality of the superior court’s order.”

He write further that the inadequacy of a remedy for the newspaper did not weigh heavily as the problem was of Tracy Press’ own making, but rejected the city’s motion for costs and attorney fees.

Opining that the petition attempted to raise “an important and novel issue,” attested to by the participation of amici curiae, Nicholson said the proceeding was not clearly frivolous, even though it had been “doomed from the beginning” by the newspaper’s failure to name the councilmember as a party.

Justices M. Kathleen Butz and Tani Cantil Sakauye joined Nicholson in his opinion.

The case is Tracy Press, Inc. v. Superior Court, 08 S.O.S. 4167.


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