Thursday, August 1, 2013
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C.A. Revives Suit Over Misuse of Political Documents
From Staff and Wire Service Reports
The Court of Appeal for this district has reinstated 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.
Los Angeles Superior Court Judge Terry A. Green had ruled that developers of the proposed Pebble Mine in the headwaters off Bristol Bay, Alaska were entitled to First Amendment protection from the suit by the Renewable Resources Coalition, and tossed the action under the anti-SLAPP statute.
But 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.
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.
Green found that the developers pursued the case with the APOC as a public interest issue and was justified in bringing it 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.”
Pebble is considering an appeal to the California Supreme Court, the Anchorage paper reported.
The coalition’s executive director, Anders Gustafson, said the group lost donors as a result of the APOC investigation and the appeals’ court ruling should breathe life back into the coalition and make it stronger. Pebble spokesman Mike Heatwole said the company maintains the APOC case needed to be brought.
The plaintiff was represented on appeal by Stephen W. Cusick, James C. Nielsen and Christine B. Cusick of Nielsen, Haley & Abbott, while Susan J. Harriman, Steven A. Hirsch and C. Eli Ewing of Keker & Van Nest represented the defendants.
The case is Renewable Resources Coalition, Inc. v. Pebble Mines Corporation, 13 S.O.S. 3865.
Copyright 2013, Metropolitan News Company