S.C. Declines Case of Alleged Misuse of Political Documents

Friday, November 1, 2013

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S.C. Declines Case of Alleged Misuse of Political Documents

From Staff and Wire Service Reports

The state Supreme Court has declined to block a lawsuit by supporters of an Alaska ballot measure who claim their opponents colluded with a Los Angeles-based fundraiser and an Anchorage law firm to bring the supporters up on charges before an Alaska political watchdog.

The justices, at their weekly conference Wednesday in San Francisco, voted 6-0 to deny review of the July 30 ruling of this district’s Court of Appeal, Div. Three, in Renewable Resources Coalition, Inc. v. Pebble Mines Corporation (2013) 218 Cal. App. 4th 384. Justice Kathryn M. Werdegar was absent and did not participate.

Notice of the justices’ action was posted yesterday on the state courts’ website.

The denial of review means that the Renewable Resources Coalition may go forward with its suit against developers of the proposed Pebble Mine in the headwaters off Bristol Bay, Alaska. The Court of Appeal panel overturned Los Angeles Superior Court Judge Terry A. Green’s ruling that the allegations fell under the anti-SLAPP statute and that the developers were entitled to First Amendment protection from the suit.

C.A. Opinion

Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal, said the statute didn’t apply because the main thrust of the action was an attack on the alleged illegal sale of confidential documents, which were then used to pursue a case with the Alaska Public Offices Commission, and not on the exercise of free speech or petition rights.

The case is tied to work done by Los Angeles-based fundraiser Robert Kaplan, who worked for the coalition’s anti-Pebble ballot initiative in 2008. The initiative failed, Kaplan was fired, and he later was found to have sold internal emails, donor lists, bank records and other information to Pebble for $50,000.

An arbitrator last year found Kaplan had “unclean hands,” was untruthful and must pay more than $3 million to the coalition and more than $5 million to political consultant Art Hackney, the Anchorage Daily News reported. Kaplan, who is a defendant in the lawsuit but wasn’t a party to the appeal, has filed for bankruptcy but Hackney and the coalition are contesting the dischargeability of the debt, court records show.

The developers have acknowledged using information that the Anchorage law firm Jermain, Dunnagan & Owens, P.C. bought from Kaplan for an appeal with the APOC. The complaint alleged that mine opponent Bob Gillam had secretly funneled nearly $2 million into the initiative aimed at stopping the project.

The complaint was ultimately settled for $100,000 by the Renewable Resources Coalition, Gillam and the Alaskans for Clean Water ballot group.

Public Interest Found

Green found that the developers pursued the case with the APOC as a public interest issue and were justified in bringing the commission information from the purchased documents. But Klein disagreed.

The presiding justice explained:

“Rather than focusing on the gravamen of this action, which was that the Pebble defendants allegedly purchased the Coalition’s confidential documents, the trial court focused on the injury to the Coalition, which was forced to defend itself in the APOC proceeding. However, the gravamen of an action is the allegedly wrongful and injury-producing conduct, not the damage which flows from said conduct. Here, the gravamen of the Coalition’s action is the allegation that the Pebble defendants wrongfully purchased its confidential documents. Said purchase was not an act by defendants in furtherance of their right of petition or free speech.”

In other conference action, the justices agreed to decide whether the Department of Motor Vehicles, in determining whether to impose an administrative per se suspension for driving with an excessive blood alcohol level, is required to conclude that a driver whose initial test result is right at the 0.08 percent threshold, but whose recorded blood alcohol concentration rises during subsequent tests, had a BAC below the threshold while driving. The Fourth District’s Div. Thee held Aug. 15 in Coffey v. Shiomoto (2013) 218 Cal. App. 4th 1288 that the DMV was allowed to rely on circumstantial evidence, including results of field sobriety tests, to determine the motorist’s BAC while driving.