Court says public documents become private as soon as they are hidden by public servants

(Updated) The California Court of Appeal has found that a public servant, using a public agency's computer, on a public agency desk, while being paid by the public agency to do the agency's business, is NOT creating a public record as long as that person uses a private email account. It's ridiculous to say that an email created under such circumstances is not a public record within the meaning of the California Public Records Act.

But I guess this decision makes it easy to figure out why public officials and employees use private email to do public business.

Why don't they use their work email accounts? The answer seems obvious: to skirt the laws regarding public records. And now the California Court of Appeal has given its stamp of approval to this practice.

Public servants who want to keep their actions secret breathed a sigh of relief when the California Court of Appeal made it easy for them to conceal documents regarding public issues.

The law says that “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."

Clearly, when a "state or local agency" prepares a document, it is an actual human being, an official or employee or contract worker who is preparing it, not a disembodied "public agency".

The law doesn't say that the document must be prepared AND retained by the agency in order to be a public record. It says the documents must be prepared OR retained by that agency. If a public servant is being paid by the taxpayers to work on a public issue, then his or her writing about that issue is a public record.

Yet San Jose attorney Rick Doyle says that documents that "aren't retained or held by the public agency" aren't public records. Public servants simply have to hide public documents in order for those documents to become private! And the Court of Appeal agreed with him.

The California Court of Appeal basically found in the San Jose emails case that if a document is not in the possession of the public entity, then it isn't public. Would this also apply to paper documents? Logic would seem to require that it would.


These shredded documents survived a burning spree in a parking lot at San Ysidro School District

Apparently, a document can be switched at will from public to private. In the San Jose case, all that is needed is to send it using a private email account rather than a public email account. So why is the FBI investigating Manuel Paul of San Ysidro School District for burning documents?

Perhaps public officials aren't off the hook quite yet. An agency may not have to turn over documents that have been converted from public to private, but the court has NOT found that the act of conversion itself is legal. Obviously, it would be extremely difficult to turn over a document that had been incinerated. (Manuel Paul was a client of Dan Shinoff (below), who applauded the Court of Appeal decision.)


Richard Doyle

Attorney James McManis says, "When you think about it -- it's just nuts. If they can hide stuff by using their private devices, that's no way to run a railroad."


James McManis

I have to agree with him. The decision is clearly a gift from the Court of Appeal to those who want to circumvent the California Public Records Act.

San Diego school attorney Dan Shinoff, who is known for working hard to keep secret the actions of school officials, spoke for many when he applauded the California Court of Appeal for protecting public servants who prepare, use and retain written information about public business in their private email accounts.


Dan Shinoff of Stutz Artiano Shinoff & Holtz

Mr. Shinoff, who represents 40 of the county's 42 school districts, applauded the judge's ruling: “It's my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications."

In my case, Maura Larkins v. Richard Werlin, Mr. Shinoff made copies of documents created by employees at Chula Vista Elementary School District, and then told those employees to keep the originals in their homes. Later Mr. Shinoff and his partner Ray Artiano said in a deposition that the records couldn't be found at their law office. Since Mr. Shinoff represents 40 of the 42 districts in San Diego County, I'm guessing that there are a lot of public documents stashed away in private homes in the county. This makes me wonder if Mr. Shinoff is keeping evidence from my case squirreled away at his house.

The San Jose decision concludes:

We conclude that the language of the CPRA does not afford a construction that imposes on the City an affirmative duty to produce messages stored on personal electronic devices and accounts that are inaccessible to the agency, or to search those devices and accounts of its employees and officials upon a CPRA request for messages relating to City business.

Whether such a duty better serves public policy is a matter for the Legislature, not the courts, to decide. In addition, it is within the province of the agency to devise its own rules for disclosure of communications related to public business.

The obstacles noted by petitioners and the League—the legal and practical impediments attendant to the extra task of policing private devices and accounts would also be addressed more appropriately by the Legislature or the agency, not the courts.

I certainly agree that it is burdensome for public agencies to search for public records in someone's private email account. So why do those agencies allow officials and employees to use personal accounts for public business?

We clearly need a law forbidding public servants from using private email for public business and from using private storage for public records. Until then, I expect that ethically questionable transactions will take place through private email--and there won't be much reason to request public emails. The important information won't be there. The California Public Records Act won't be worth much.

San Jose court: Government workers can keep messages from personal devices private
By Mike Rosenberg
Mercury News
03/27/2014

SAN JOSE -- In a decision that draws a line on public access to government records, an appeals court ruled Thursday that government workers in San Jose and beyond can keep their communications private if they send them on a personal device like a cell phone.

The Sixth District Court of Appeal decision directly affects South Bay counties and sets legal precedent in California that could influence judges in other parts of the state, although the issue is likely to remain unsettled until the California Supreme Court weighs in.

Last year, open records advocates had defeated San Jose City Hall in the lower courts in a case over whether the city's 5,500 workers had to make public messages sent on their private devices. Typically, for instance, emails sent or received on a city's system would be subject to disclosure under the California Public Records Act. But it was not clear whether the same employee could keep a government-related message sent from a personal Gmail account private.

Media groups and open government activists argued officials could skirt the spirit of the landmark 1968 Public Records Act by texting, calling or emailing about government business with their personal devices. But city officials, aided in court by the California League of Cities, said they have no control over the employees' personal accounts and it would be costly and unwieldy to compile the records.

The city emerged victorious Thursday in the 6th District following a hearing in San Jose earlier this month. In a 3-0 ruling, justices Franklin Elia, Conrad Rushing and Eugene Premo said it should be up to the California Legislature to determine which records are public -- not the courts.

The decision reversed a March 2013 ruling from a Santa Clara County Superior Court judge who said "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

But James McManis -- the attorney for activist Ted Smith, who first sued to get access to the records -- said "they haven't heard the last from us." His group will petition the state's highest court for a final review, but it's up to California Supreme Court justices to decide whether to accept the case.

"When you think about it -- it's just nuts," McManis said. "If they can hide stuff by using their private devices, that's no way to run a railroad."

City Attorney Rick Doyle said the California records law, passed in an age well before texting or email, "never contemplated" that private devices would be subject to records requests.

"These aren't retained or held by the public agency and individuals aren't the public agencies," Doyle said. "They may work for the public agency, but it's not the same thing."

Doyle said San Jose has among the best sunshine ordinances in the state. Ironically, he noted, the city in 2010 approved a policy that makes messages about public business sent on private devices public, but it only applies to the City Council and their staff. But even then, the rule is tough to enforce.

"They're on the honor system on that," Doyle said. "They're supposed to turn (the records) over."

Ruling favors secret Gmail for officials
Appeal court says cities can't be required to disclose personal accounts
By Ashly McGlone
SDUT
March 28, 2014

A court ruling out of San Jose involving emails of public officials could have implications in San Diego and across the state.

A three-judge appeals panel struck down a March 2013 decision by Santa Clara County Superior Court Judge James P. Kleinberg, who had found that the emails and texts of public officials using their personal accounts or devices become public records if they are discussing government business.

“Politicians read into the law what they want to read into the law in order to keep their secrets secret,” said San Diego attorney Cory Briggs, who has filed a similar lawsuit here. “Gmail is going to get a lot busier with politicians’ communications in light of this ruling. Good day to buy stock in Google, and it’s a sad day for open government and democracy.”

The ruling reversed Kleinberg’s order for the City of San Jose to turn certain messages over to resident Ted Smith, who sought them in a public records request.

The appeals court found that a public official’s Gmail or Yahoo account is not in possession of the city, and therefore can’t be considered public.

“Any control the city has over its employees' behavior is not equivalent to control over, or even access to, the text messages and e-mail sent to and from its employees' private devices and accounts,” Associate Justice Franklin D. Elia wrote. “That city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern; but such conduct is for our lawmakers to deter with appropriate legislation.”

San Jose City Attorney Rick Doyle said of the victory, “I think the court recognizes privacy interests of individuals, including public officials,” adding that the earlier ruling “was too broad and the Legislature hasn’t gone there yet.”

“It’s the reality of technology getting beyond what the law is,” said Doyle, who has served as city attorney for more than 14 years. “Judge Kleinberg was equating ‘you are a public official,’ ‘you are the city’ and that’s just not true.”

Attorney Dan Shinoff, who represents 40 of the county’s 42 school districts, applauded the judge’s ruling.

“It’s my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications,” Shinoff said.

Members of the plaintiff’s legal team said they would seek a review from the state Supreme Court in hopes of appealing the decision that Attorney James McManis calls “dead wrong.”

“We are supposed to have transparency and this is prompting secrecy,” McManis said. “Now they have the green light to put this stuff on private devices with the comfort that no one is ever going to find out.”

“They are supposed to be serving the people and are not supposed to be conducting business behind closed doors and emails.” McManis said, “If they don’t want people looking at their emails then they shouldn’t use private emails. That’s a real simple choice for them to make.”

State public records law says in part, “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

Donna Frye, president of the nonprofit Californians Aware and a former San Diego city councilwoman, said the ruling doesn’t comport with a plain reading of state public records law and opens the door to additional legal problems.

“They can essentially conduct full meetings in full view of the public. They can sit up there and form collective concurrences and violate not only the Public Records Act, but the Brown Act,” Frye said. “Just because technology allows people to communicate in different ways, it doesn’t mean the intention about what is a public record has changed… I hope the Legislature will act so that it’s statewide, so that it doesn’t have to be done on a city-by-city or county-by-county basis.”

In the meantime though, Frye’s group is still working with San Diego council members David Alvarez and Marti Emerald to get a city charter amendment onto the November ballot that would require city officials to copy a city email on city-related communications sent from a personal account, require emails to be kept for two years and deem certain records of city contractors public.

The Court of Appeal ruling may buttress the position the city of San Diego has taken in two lawsuits by Briggs seeking personal emails of public officials discussing government business. The City Attorney’s Office has taken the position that the emails are not public. Officials there declined to comment on the ruling. A hearing is scheduled for April 11.

See related post at San Diego Education Report blog.

Update Mar. 31, 2014: "We are not hiding anything."

I couldn't help thinking of the public agencies in California whose officials and employees use private emails to conduct business when I saw another story about authorities who don't want to release information--but insist that they're not trying to hide information from the public.

Perhaps the Malaysian government gave a wrong quote because one of their lawyers took the recording--and the transcript--home for safe keeping. I think the philosophy might be pretty much the same in both places: keep the truth secret because it might contradict the story we come up with.

MH370: New last words from cockpit: 'Good night Malaysian three seven zero'
By Catherine E. Shoichet, Faith Karimi and KJ Kwon, CNN
March 31, 2014
Source: CNN

They were words heard around the world as investigators searched for the missing Malaysia Airlines plane.

Weeks ago, Malaysian authorities said the last message from the airplane cockpit was, "All right, good night."

The sign-off to air traffic controllers, which investigators said was spoken by the plane's copilot, was among the few concrete details officials released in a mystery that's baffled investigators and drawn global attention since the Boeing 777 disappeared with 239 people aboard mid-flight on March 8.

There's only one problem. It turns out, it wasn't true.

On Monday, Malaysia's Transport Ministry said the final voice transmission from the cockpit of Flight 370 was actually "Good night Malaysian three seven zero."

And authorities are still trying to determine whether it was the plane's pilot or copilot who said them.

The new language is routine and is not a sign that anything untoward occurred aboard the flight, said CNN aviation analyst Mary Schiavo.

But the change in wording weeks into the search for the missing plane raises questions about how Malaysian officials have handled the investigation.

"It speaks to credibility issues, unfortunately," Schiavo said.

"We haven't had a straight, clear word that we can have a lot of fidelity in," said Michael Goldfarb, former chief of staff at the U.S. Federal Aviation Administration. "We have the tragedy of the crash, we have the tragedy of an investigation gone awry and then we have questions about where we go from here."

No matter what the pilots' last words were, it's hard to understand what they mean without more details from authorities about what they said and how they said it, CNN aviation analyst Miles O'Brien told "The Lead with Jake Tapper" on Monday.

"Without the preceding information ... either the transcript or the recordings themselves, it's difficult to know what any of that really means," he said. "And that's the problem with this investigation, which has been so opaque."

Malaysian authorities have defended their handling of the situation.

Acting Transportation Minister Hishammuddin Hussein said Monday that authorities were not hiding anything by declining to release some details of the missing flight. Some details are part of ongoing investigations into what happened to the plane, he said.

"We are not hiding anything," he said. "We are just following the procedure that is being set."...

A culture of silence?? The following article talks about "corporate culture". But I think we're talking about human nature. Reflexive dishonesty seems to be rampant. GM will pay, but I doubt that it will significantly change its corporate culture. Consumers will continue to be in danger.

Why did GM take so long to respond to deadly defect? Corporate culture may hold answer.
By Michael A. Fletcher and Steven Mufson
Washington Post
March 30,2014

The part costs less than $10 wholesale. The fix takes less than an hour. A mechanic removes a few screws and connectors, takes off a plastic shroud, pops in the new switch, and the customer is back on the road.

It’s relatively cheap and easy to replace the flawed ignition switch that has been blamed for at least 13 deaths, including a fatal June 2013 crash in Quebec newly linked to the defect. Yet General Motors waited more than a decade before recalling 2.6 million Chevrolet Cobalts and other small cars.

GM’s failure to alert customers sooner could end up costing the automaker hundreds of millions of dollars in fines and much more in reputational damage. It has already cost the lives of the drivers, who perished at least in part because the faulty switches suddenly shut off their cars, stiffening brakes and power steering and disabling air bags.

With so much at stake, why didn’t GM act sooner?

The answer, according to many people familiar with the automaker, is a corporate culture reluctant to pass along bad news...

Too much collegiality among judges at the San Diego Superior Court?

UPDATE: Bonnie Dumanis is no longer on Judge Lisa Schall's list of endorsers. Here's the earliest list I can find. Bonnie Dumanis was no longer on the list on March 21, 2014 when I downloaded a new version of the list from Schall's website.


I understand that San Diego Superior Court judges don't want to be unseated in elections. In fact, I agree that judges should not be subject to elections. I'd like to see a lottery of highly qualified applicants for judicial positions. (The appointment process is almost as political as elections.)

The San Diego Superior Court judges are all interested in protecting the status quo. They've all endorsed Schall.

But the upcoming election battle between sitting judge Lisa Schall and challenger Carla Keehn seems to offer an opportunity for judges and lawyers in San Diego to make some changes to a system that has produced so many abuses. . One of those abuses is the injunction against this website that Mr. Shinoff's law firm got from Judge Judith Hayes. That injunction was thrown out by the Court of Appeal.

If you look down at the bottom of Judge Schall's list of endorsements as of March 21, 2014, below the bigshot right-wingers and retired judges, you'll see the endorsements by local "professionals". Two facts are noteworthy:

1. the list is very short;

2. Judge Schall is endorsed by not one, but TWO, of the lawyers for Manuel Paul and other school officials who have been charged with (and in some cases pleaded guilty to) public corruption--(Daniel Shinoff and James Pokorny). Why do these lawyers support Schall? Perhaps Shinoff is grateful to Schall for dismissing the Sarquilla case. Or maybe he figures this is a chance to curry some favor with ALL the judges of the Superior Court. He figured out what can happen to people opposing a sitting judge. (See more on Mr. Shinoff at the bottom of this post.)


School lawyer Dan Shinoff
Stutz Artiano Shinoff & Holtz

School lawyer Dan Shinoff and James Pokorny
are two of the seven "professionals" who have
endorsed Judge Lisa Schall over challenger Carla Keehn.
Pokorny (not pictured) is the criminal lawyer for
several of Shinoff's clients.

Judge Lisa Schall's
Professional Endorsements:

Mr. Daniel Shinoff [civil attorney for several school officials before and after they were charged with public corruption]
Ms. Lori Clark Viviano (child custody attorney)
Mr. Douglas Brust [attorney Douglas V. Brust, I assume]
Ms. Sharon Blanchet [another family law attorney; she is a co-defendant with Schall in this case]
Dr. Nolan Bellisario [a dentist--how many people with that name could be living in San Diego?]
Mr. Bruce Beals [yet another family law attorney]
Mr. James Pokorny[criminal defense attorney for several local school officials, many if not most of whom were/are Daniel Shinoff clients]
Mr. Casey Gwinn, President, Family Justice Center Alliance

Meanwhile, federal prosecutor Carla Keehn is endorsed by the following on March 21, 2014:

Carla Keehn's
Professional Endorsements

Greg Vega, Esq.
Alex Kreit, Esq.
Alex Landon, Esq.
Bridget Kennedy, Esq.
Charles Rees, Esq.
Craig Leff, Esq.
Daniel Drosman, Esq.
Daniel Smith, Esq.
David Lamb, Esq.
Ellis Johnston, Esq.
Eric Alan Isaacson, Esq.
Eric Mitnick, Esq.
Ezekiel E. Cortez, Esq.
Francisco Sanchez, Esq.
Jason Forge, Esq.
Jedd Bogage,Esq.
Joseph Daley, Esq.
Linda Hughes, Esq.
Lisa A. Damiani, Esq.
Mark Strazzeri
Mayra Garcia, Esq.
Michael E. Burke, Esq.
Michael Stein, Esq.
Paul Turner, Esq.
Rafi Rokach
Sharon Roberts
Sylvia Baiz, Esq.
Ted Pintar, Esq.
Jacqueline Crowle, Esq.
William Mathew Brown, Esq.
(partial list)

More on Lisa Schall's supporter Dan Shinoff:
Mr. Shinoff's law firm tried valiantly to get the Court of Appeal to agree that I, a retired school teacher, should be forbidden from speaking his name, or the name of his firm. Stutz Artiano Shinoff & Holtz law firm has spent over 6 years trying to shut down my little blog that gets 300 hits on a good day. Why would a large firm of lawyers that rakes in millions from local school districts try to get the Court of Appeal to approve an obviously unconstitutional prior restraint by San Diego Superior Court Judge Judith Hayes? The Court of Appeal declined to uphold the preposterous injunction. On the other hand, Shinoff's firm must have been pleased when the American Bar Association published a glaringly incorrect report about the case.

Is the San Diego ACLU a rogue organization, or does the national ACLU support attorney David Loy's bad behavior?

So long as we have enough people in this country willing to fight for their rights, we'll be called a democracy.

-- ACLU Founder Roger Baldwin

I agree with Mr. Baldwin in theory, but in practice, people need to be able, as well as willing, to fight for their rights. Education is needed in order to have a democracy.

Sadly, San Diego ACLU attorney David Loy seems to be working on two fronts to stop the efforts of San Diegans working to improve the functioning of local schools. Worse still, the local ACLU is supporting him.


San Diego ACLU attorney David Loy

First, David Loy has gone out of his way to support a school attorney law firm (Stutz Artiano Shinoff & Hotlz) which has steadfastly worked to silence education bloggers.

Why? And why would the San Diego ACLU support Mr. Loy in this? In an email, Loy pretended he didn't know that that Judge Judith Hayes' injunction against this blog was unconstitutional. Loy demanded that I take all mention of Stutz Artiano Shinoff & Holtz law firm off my websites. I knew the injunction was unconstitutional, and I'm just an elementary school teacher without any legal training.

So why didn't Loy know this? Answer: of course he knew the injunction was unconstitutional. He just didn't care. He apparently wanted to score some points with school attorney Dan Shinoff. Certainly, Shinoff would have owed Loy an enormous debt if Loy had succeeded in silencing me.


Judge Judith Hayes

Judge Judith Hayes wrote a brazenly unconstitutional injunction in an effort to silence this blogger. When I objected, she told me that I didn't understand constitutional law. The Court of Appeal agreed with me. It's hard to understand why a judge would engage in this type of behavior. She must have had her reasons.

Happily, the injunction was thrown out by the Court of Appeal, and Mr. Loy's efforts to intimidate me into taking down my website failed completely.

But why is the San Diego ACLU working behind closed doors in direct opposition to its stated goals?

My theory is that David Loy tries to get publicity by complaining to the media about, ironically enough, freedom of speech for students in San Diego County, and then getting school attorneys like Dan Shinoff to settle out of court. The problem arises when Mr. Shinoff wants consideration for his cooperation.


Dan Shinoff

The second prong of the San Diego ACLU's efforts to undermine education reform is its startling inaction in cases like the ACLU suit regarding teacher quality in lower socioeconomic schools.

Why were San Diego school districts left out? I suspect that the answer is exactly the same as the answer to why the San Diego ACLU would support silencing education bloggers.

--San Diego blogger Maura Larkins

(See biographies of national ACLU leaders below.)


Steven R. Shapiro, Legal Director of the ACLU

Steven R. Shapiro is the Legal Director of the American Civil Liberties Union, the nation's oldest and largest civil liberties organization. He directs a staff of approximately 90 full-time lawyers who maintain a large and active docket of civil liberties cases around the country. Those cases cover a broad range of issues, including: free speech, racial justice, religious freedom, due process, privacy, reproductive and women's rights, immigrant's rights, gay rights, voting rights, prisoner's rights, and the death penalty.

Shapiro has been the ACLU's Legal Director since 1993, and served as Associate Legal Director from 1987–1993. During that time, he has appeared as counsel or co-counsel on more than 200 ACLU briefs submitted to the United States Supreme Court.

Shapiro is also an adjunct professor of constitutional law at Columbia Law School, and a frequent speaker and writer on civil liberties issues.

After graduating from Harvard Law School and spending one year as law clerk to Judge J. Edward Lumbard of the U.S. Court of Appeals for the Second Circuit, Shapiro joined the New York Civil Liberties Union in 1976. He was a member of the Board of Directors of Human Rights First for twenty years and is now a member of the Policy Committee of Human Rights Watch, as well as the Advisory Committees of the U.S. Program and Asia Program of Human Rights Watch.



Terence Dougherty, ACLU General Counsel

Terence Dougherty joined the ACLU in 2005 and since then has developed an in house legal team that advises the organization on all internal legal matters, including nonprofit governance, charity law, lobbying and political campaign activities, ethics rules and FEC, intellectual property, contract, endowment fund and litigation matters. In addition to serving as the in-house General Counsel, he is the organization's Assistant Corporate Secretary. Prior to joining the ACLU, Terence practiced law at Patterson, Belknap, Webb & Tyler, where he represented numerous nonprofit organizations, including educational institutions, advocacy organizations, private foundations, museums and donor advised funds. Prior to that, he practiced tax law at Fried, Frank, Harris, Shriver & Jacobson.

Dougherty has over a decade of experience working with nonprofit organizations on a wide range of legal issues, and he regularly lectures and gives CLE trainings. Dougherty co-authored an article in 2010, "Newspapers as Tax-Exempt Entities: The Newspaper Revitalization Act of 2009," that addresses proposed legislation that would grant tax-exempt status to certain newspaper entities. He assisted in the preparation of a section of the 2005 Independent Sector, Panel on the Nonprofit Sector's Final Report to Congress and the Nonprofit Sector, "Strengthening Transparency, Governance and Accountability of Charitable Organizations." He is the author of a series of policy studies published by the National Gay & Lesbian Task Force in 2004 and 2005 on the economic detriment to same-sex couples resulting from their inability to enter into marriages recognized under federal and state law. He is a contributor to and the coeditor with Martha Fineman of Feminism Confronts Homo Economics, a collection of essays published by Cornell University Press in 2005 that addresses the negative impact of neoclassical economic theory on the study and practice of law.

Dougherty is a graduate of Oberlin College and Columbia Law School, where he was a James Kent Scholar and a recipient of a Human Rights Internship Fellowship. During law school, he interned with Hon. Jack B. Weinstein of the U.S. District Court, Eastern District of New York, and with Hon. Cheryl Valandra of the Rosebud Sioux Tribal Court in South Dakota.

In 2008, Dougherty was appointed as a Commissioner of the Women's Refugee Commission. Since 2005, he has served as a member of the board of directors of the Bill T. Jones/Arnie Zane Dance Company and has sat on the Government Relations Committee of the Non-Profit Coordinating Committee. He is a former member of the boards of the Columbia University School of Law Alumni Association and the Ohio Public Interest Research Group.

Dougherty is a native New Yorker. Prior to attending law school, he worked as writer assistant to feminist cultural critic Bell Hooks and as a kindergarten teacher at a homeless shelter in the South Bronx.


Susan N. Herman, President of the ACLU

Susan N. Herman was elected President of the American Civil Liberties Union in October 2008, after having served on the ACLU National Board of Directors for twenty years, as a member of the Executive Committee for sixteen years, and as General Counsel for ten years.

Herman holds a chair as Centennial Professor of Law at Brooklyn Law School, where she currently teaches courses in Constitutional Law and Criminal Procedure, and seminars on Law and Literature, and Terrorism and Civil Liberties. She writes extensively on constitutional and criminal procedure topics for scholarly and other publications, ranging from law reviews and books to periodicals and on-line publications. Recent publications include two books, TERRORISM, GOVERNMENT, AND LAW: NATIONAL AUTHORITY AND LOCAL AUTONOMY IN THE WAR ON TERROR, editor and co-author, with Paul Finkelman (Praeger Security International 2008) and THE RIGHT TO A SPEEDY AND PUBLIC TRIAL (Praeger 2006) (part of a series on the Constitution), and law review articles including The USA PATRIOT Act and the Submajoritarian Fourth Amendment, 41 HARV. CIV. RTS.-CIV. LIB. L. REV. 67 (2006).

Herman has discussed constitutional law issues on radio, including a variety of NPR shows; on television, including programs on PBS, CSPAN, NBC, MSNBC and a series of appearances on the Today in New York show; and in print media including Newsday and the New York Times. In addition, she has been a frequent speaker at academic conferences and continuing legal education events organized by groups such as the Federal Judicial Center, and the American Bar Association, lecturing and conducting workshops for various groups of judges and lawyers, and at non-legal events, including speeches at the U.S. Army War College and many other schools. She has also participated in Supreme Court litigation, writing and collaborating on amicus curiae briefs for the ACLU on a range of constitutional criminal procedure issues, and conducting Supreme Court moot courts, and in some federal lobbying efforts.

Herman received a B.A. from Barnard College as a philosophy major, and a J.D. from New York University School of Law, where she was a Note and Comment Editor on the N.Y.U. Law Review. Before entering teaching, Professor Herman was Pro Se Law Clerk for the United States Court of Appeals for the Second Circuit, and Staff Attorney and then Associate Director of Prisoners' Legal Services of New York.



Anthony D. Romero, Executive Director ACLU

Anthony D. Romero is the Executive Director of the American Civil Liberties Union, the nation's premier defender of liberty and individual freedom. He took the helm of the organization just seven days before the September 11, 2001 attacks. Shortly afterward, the ACLU launched its national Keep America Safe and Free campaign to protect basic freedoms during a time of crisis, achieving court victories on the Patriot Act, uncovering thousands of pages of documents detailing the torture and abuse of detainees in U.S. custody, and filing the first successful legal challenge to the Bush administration's illegal NSA spying program. Romero also led the ACLU in establishing the John Adams Project, a joint effort with the National Association of Criminal Defense Lawyers to assist the under-resourced military defense lawyers in the Guantánamo military commissions.

Romero has also led the ACLU in its unique legal challenge to the patents held by a private company on the human genes associated with breast and ovarian cancer; in its landmark lawsuit challenging Arizona’s anti-immigrant law that invites law enforcement to engage in racial profiling; and in its ongoing campaign to end mass incarceration, which has achieved significant victories, including the 2010 passage of the federal Fair Sentencing Act and the implementation of less punitive, evidence-based criminal justice reforms in several states.

An attorney with a history of public-interest activism, Romero has presided over the most successful membership growth in the ACLU's history and a large increase in national and affiliate staff. This extraordinary growth has allowed the ACLU to expand its nationwide litigation, lobbying and public education efforts, including new initiatives focused on human rights, racial justice, religious freedom, technology and privacy, reproductive freedom, criminal law reform and LGBT rights. In 2010, the ACLU completed the largest fundraising campaign on behalf of civil rights and civil liberties in American history. “Leading Freedom Forward: The ACLU Campaign for the Future,” along with the ongoing Strategic Affiliate Initiative, launched an unprecedented effort to build the organization's infrastructure by increasing funding to key state affiliates, enhancing advocacy capabilities nationwide and securing the ACLU's financial future.

Romero is the ACLU's sixth executive director, and the first Latino and openly gay man to serve in that capacity. In 2005, Romero was named one of Time Magazine's 25 Most Influential Hispanics in America, and has received dozens of public service awards and an honorary doctorate from the City University of New York School of Law.

In 2007, Romero and co-author and NPR correspondent Dina Temple-Raston published “In Defense of Our America: The Fight for Civil Liberties in the Age of Terror,” a book that takes a critical look at civil liberties in this country at a time when constitutional freedoms are in peril.

Born in New York City to parents who hailed from Puerto Rico, Romero was the first in his family to graduate from high school. He is a graduate of Stanford University Law School and Princeton University's Woodrow Wilson School of Public Policy and International Affairs. He is a member of the New York Bar Association and has sat on numerous nonprofit boards.



Geri E. Rozanski, Director, Affiliate Support and Advocacy

Geri E. Rozanski joined the American Civil Liberties Union (ACLU) in 2002, bringing with her more than 20 years of experience working in nonprofit advocacy.

Currently, Rozanski serves as the Director of Affiliate Support and Advocacy for the ACLU. In this capacity, she develops and implements initiatives and programs that strengthen and maintain the connections between the ACLU and its nation-wide affiliates. Foremost among her responsibilities is ensuring that the ACLU national offices and their affiliates work together as a cohesive nationwide organization that seamlessly promotes and pursues common objectives. Rozanski's supervision of the multi-unit Affiliate Support and Advocacy department also incorporates working with all the ACLU's state affiliates in such areas as organizational development, fundraising, communications, marketing, training, and the advancement of the ACLU's state and federal priorities. As part of this process, Rozanski consults with both professional and lay leaders to establish long-lasting and effective partnerships organization-wide.

Prior to joining the ACLU, Rozanski worked as a public school teacher who also handled community relations issues in New York City and Maryland. She spent a number of years working in traditional and alternative classroom settings. After several years she left public education to pursue a career that would allow her to focus exclusively on community relations, civil rights, and building effective advocacy organizations to advance the progressive agenda. To this end, she joined the American Jewish Committee's ("AJC") Washington, DC chapter office. Working on race and interfaith relations, she eventually moved to the national office in New York City. While at the AJC's National Office, she oversaw program development in field offices on issues ranging from immigrants rights to church-state separation. She subsequently became the director of the AJC's large field operation overseeing thirty-three offices nationwide. This experience gave her a unique understanding of the ways in which a national organization can use its network of offices to leverage its combined strength to create a stronger and more effective organization. Under her leadership, the number of AJC field offices expanded to new geographic locations; fundraising campaigns in the offices reached record numbers; leadership development programs designed to attract young leaders were successfully implemented, and an advocacy network was created. Rozanski left the AJC to help the ACLU build its new Affiliate Support Department.



Emily Tynes, Communications Director

Emily Tynes is Communications Director of the national American Civil Liberties Union, the nation's premier defender of liberty and individual freedom. Tynes returned to the ACLU in 2009, resuming her role as the organization's Communications Director, which she previously held from 2002 to 2006. She currently supervises a three-unit department at the ACLU: media relations, publications and website development. She was most recently Executive Vice President of the Communications Consortium Media Center, a public interest media group that she co-founded in Washington, D.C.

Tynes has over 30 years of experience in communications regarding strategies for achieving policy and social change. She began her communications career as a news reporter with several Gannett Company newspapers, followed by four years as an account executive in the Washington, D.C., office of Ruder & Finn public relations.

In 1983, Tynes became the first communications director for the National Abortion and Reproductive Rights Action League (NARAL) — now NARAL Pro-Choice — where she guided the organization's communications program during a highly volatile era of historic abortion rights battles. After that, she co-founded the Communications Consortium Media Center (CCMC), where she designed and implemented strategic communications campaigns on women's rights, racial equality, national energy policy and immigrants' rights. She has conducted strategic communications workshops for social justice advocates in the United States, Senegal, Jordan and Argentina.

Tynes initially joined the ACLU as Communications Director in 2002, shortly after the 9/11 terrorists attacks — a period of unprecedented assaults on civil liberties. As Communications Director, Tynes managed all communications functions of the organization and its state affiliates, including brand development, paid advertising, media relations and the development of multifaceted campaign strategies. She was responsible for several successful communications efforts and was the lead architect of the Safe & Free campaign, the organization's communications strategy on civil liberties post 9/11. She also spearheaded the production and distribution of the first-ever ACLU television series, the Freedom Files.

Tynes rejoined the Communications Consortium Media Center in November 2006, and returned to the ACLU in 2009.

Tynes is the editor of two reference books for journalists, The Newsroom Guide to Civil Rights and The Newsroom Guide to Abortion and Family Planning. She is co-author of the Jossey Bass Guide to Strategic Communications, a reference book for nonprofit communication professionals.

[Maura Larkins' comment: I notice that Ms. Tynes came back to the ACLU at about the same time that the organization switched its focus from civil liberties to "relationships".)

Attorney Candace Carroll doesn't flinch in her support of Dan Shinoff's efforts to silence me

Former San Diego ACLU board member Candace Carroll
has been steadfast in ignoring my complaints to the ACLU
about the efforts of David Loy, chief counsel
of the San Diego ACLU, to protect his pal
Dan Shinoff from exposure on my website.

Ms. Carroll hasn't flinched in her determination to ignore violations of the First Amendment by the San Diego Superior Court. Well, perhaps she flinched a little bit. Instead of simply ignoring me, she caused me to be notified that she did not want to learn about recent revelations in the San Diego Union-Tribune about Mr. Shinoff. At least she's acknowledging my existence, right? And making sure that I can't prove that she knows about the witness tampering in San Ysidro Schools.

Attorney Candace Carroll was an ACLU San Diego board member when the organization tried to shut down my website exposing school attorney Dan Shinoff.

Yes, you heard it right. The San Diego ACLU tried to silence a citizen's speech on matters of public interest. Clearly, all the people who told me to go to the ACLU for help when Stutz Artiano Shinoff & Holtz law firm sued me for defamation didn't know the truth about the San Diego ACLU. And neither did I until I got this message from ACLU attorney David Loy.

Attorney Candace Carroll does not want to revisit her long term support of Stutz Artiano Shinoff & Holtz' and David Loy's efforts to force me to remove all mention of Dan Shinoff and friends from my website. It would have taken me months and months to go through my large website, so essentially the San Diego ACLU was telling me to take down my website completely. Instead of helping me, the San Diego ACLU tried to force me to obey an exceedingly unconstitutional anti-free speech injunction by Judge Judith Hayes in San Diego Superior Court. The Court of Appeal had this to say about that injunction.

I thought Ms. Carroll might change her attitude after the FBI caught Dan Shinoff on tape sitting by while his client tampered with a witness.

Yesterday I sent her this email:

In the light of new revelations, does the San Diego ACLU board and legal team stand by your efforts to silence my blog re Dan Shinoff?

(Email was sent to "Candace M. Carroll" )

Today I got a message that Candace Carroll had reviewed my email and rejected it!

Intended Recipient : carroll@sullivanhill.com (Candace Carroll)

Message Subject : In the light of new revelations, does the San Diego ACLU board and legal team stand by your efforts to silence my blog re Dan Shinoff?

Message Date : Mon, 3 Feb 2014 15:29:22 -0800

Reviewer : carroll@sullivanhill.com (Candace Carroll)

Rejection Reason : Message goes Against Email Policies

Apparently Ms. Carroll's "Email Policies" include support for friends of San Diego ACLU officials, no matter what they do. It seems Ms. Carroll isn't a true believer when it comes to the First Amendment.

But I do notice that Ms. Carroll is no longer on the board of the San Diego ACLU. Did she get disgusted and leave? Or was she just trying to escape from responsibility?

I sent the same email to Greg Rose, president of the ACLU San Diego board. I wonder if I'll hear from him.

ACLU OF SAN DIEGO & IMPERIAL COUNTIES BOARD OF DIRECTORS - 2013 Term
Board of Directors

Mark Adams
Nasser Barghouti
Warner Broaddus
Elizabeth Camarena
Jeff Chinn
Debra Coplan
Michele Fahley
Deborah Fritsch
David Higgins
Jonathan Lin
Jim McElroy
Udoka Nwanna
Norma Rodriguez
Greg Rose, Board President*
Madison Schockley
James Stiven [Retired judge! I talked to him personally and he refused to look into the matter.]
Joanna Tan
Luz Villafana
Stephen Whitburn
Andy Zlotnik


Board President, Greg Rose

Brief Biography
Greg Rose recently retired from QUALCOMM Incorporated, where he was a Senior Vice President of Engineering working on cryptographic security and authentication for mobile phones and other technologies. He holds a number of patents for cryptographic methods and has successfully cryptanalyzed widely deployed ciphers. Rose was program chair of the 1996 and 2000 USENIX Security Symposia, and General Chair of Crypto 2003. Rose has been an active participant in the ACLU’s Constitution Day program since its founding in 2007. He is also on the board of the International Association of Cryptologic Research.

Skimming money off the top is penny ante corruption.

Subverting the purpose of an organization in exchange for favors or friendship is true corruption.


I found this article about Candace Carroll. Perhaps Dan Shinoff is one of the people she loves, and she trusts him to do the right thing.

Attorney Candace Carroll says great public schools brought her family to La Jolla
La Jolla Light
April 13, 2012

Candace Carroll has lived in La Jolla for more than 20 years and is an appellate practitioner with Sullivan, Hill, Lewin, Rez & Engel. She has more than 30 years experience handling appeals in the federal and state courts, and has handled cases on a wide range of subjects, including contract disputes, insurance and indemnity issues, wrongful termination, intellectual property, personal injury and family law matters.

She has taught seminars in Advanced Legal Writing at Duke University and the University of San Diego Law Schools, and supervises a Ninth Circuit Legal Clinic at the University of San Diego Law School.

Carroll chairs Senator Barbara Boxer’s Judicial Appointments Committee for the Southern District of California. She is a past president of the San Diego County Bar Association and of California Women Lawyers, the statewide women’s bar association. She is a life member of the Duke University Law School Board of Visitors, and serves on the California Western Law School Council of Visitors. She is married to attorney Leonard Simon, with whom she has raised three sons, Dan, David, and Matt Simon. She sits on the board of the San Diego International Rescue Committee.

What brought you to La Jolla?
It was the public schools. Len and I are both the product of public schools and wanted that for our kids.

What makes this area special to you?
The weather; our boys could play outside 12 months a year and never need snowsuits!

What might you add, subtract or improve in the area?
I would paint over the garish and unnecessary red curbs that have eliminated about a third of the parking in the Village.

Who or what inspires you?
People who devote their lives to helping others inspire me.

If you hosted a dinner party for eight, whom (living or deceased) would you invite?
I would send invitations to President and Mrs. Obama, Sean Penn, Tiger Woods, Elizabeth Warren, Barney Frank, Bono and Hillary Clinton.

[Maura Larkins' comment: What about Dan Shinoff?] What are your five favorite movies of all time?
“The Phantom of the Paradise,” “Almost Famous,” “Casablanca,” “The Usual Suspects,” and “Body Heat.”

What is your most-prized possession?
That would be my wedding ring.

What would be your dream vacation?
I would love to take our extended family someplace exotic like Tahiti.

What is your most marked characteristic?
My optimism.

What is your philosophy of life?
Trust the people you love to figure things out and do the right thing.

District Attorney candidate Robert Brewer basks in the admiration of Dan Shinoff and Leslie Devaney

Robert Brewer

Leslie Devaney's and Dan Shinoff's endorsements of Robert Brewer can be found HERE.

“I have had the great privilege of knowing Mr. Brewer for over 30 years. He is an outstanding individual who is the consummate professional who treats everyone he deals with with great respect and always is a person of tremendous integrity. The County would be most fortunate to have Robert Brewer as District Attorney.”

Daniel R. Shinoff
STUTZ ARTIANO sHINOFF & HOLTZ

I imagine Mr. Shinoff is quite incensed at Bonnie Dumanis for indicting his clients Manuel Paul, Bertha Lopez, and others at Southwestern College, Sweetwater Union High School District, and San Ysidro School District.

Of course, it's sort of strange that Dan Shinoff feels he has to muzzle a retired teacher in order to protect his own reputation as person of integrity. (See my San Diego Education Report blog posts re Stutz v. Larkins.) Does Mr. Shinoff really think that people who have known him for years will think his ethics are questionable just because of something I say? Most of the facts that I discuss have been published in newspapers, or at least in court documents, and few people read my websites, anyway. Why does Mr. Shinoff see me as a threat to his reputation?

Attorney Bradley Marshall tries to intimidate Seattle Blogger

Apparently a lot of lawyers think that bloggers are easy to intimidate. I also have had the honor of having an eminent lawyer (actually, a whole firm of them) try to intimidate me into silence.

Lawyer Tries to Intimidate Seattle Blogger

From Hominid Views: People, politics, science and whatnot
July 31, 2008

What is this world coming to when a high-powered attorney to sports stars (and a now-deceased famous talk-radio host) goes on the attack against a lowly blogger?

You see, Bradley Marshall, attorney extraordinaire (well… if you don’t count the recent 18 month suspension of his license) just sent a letter to Seattle liberal blogger and journalist (and friend of mine) Michael Hood at Blatherwatch requesting that Michael yank some old blog posts and cease writing about him.

Michael is certainly not the first blogger to get such requests, but it must be quite the honor for Michael to get a letter from a lawyer of such stature...

Legal opinions for sale; those who control San Diego schools pay millions of tax dollars for them

At last, someone with a high profile has spoken out about character and integrity among lawyers. I have done this, but the unethical lawyers at Stutz Artiano Shinoff & Holtz that I have written about believe that they can intimidate me into silence.

San Diego County Office of Education has continued to cover up Daniel Shinoff and Stutz law firm's criminal actions on behalf of school district officials. SDCOE-JPA executive director Diane Crosier (above photo), not the board, controls the legal representation of SDCOE and most county schools.

Fortune Magazine has published a great article on the subject:

Fortune Magazine
May 30, 2008
Blowing the whistle on unethical lawyers
By Roger Parloff, senior editor
http://money.cnn.com/2008/05/28/news/newsmakers/legal_opinions_for_sale.fortune/

"In August 2001, when in-house accountant Sherron Watkins warned Enron CEO Ken Lay that the company might "implode in a wave of accounting scandals," Lay asked the firm's regular law firm, Vinson & Elkins, to do a "preliminary investigation." Though V&E had worked on the very transactions Watkins was questioning, it took the assignment and reported back on Oct. 15 that there was no cause for concern. About a month and a half later Enron filed for bankruptcy, having, in fact, imploded in a wave of accounting scandals.

"When V&E was summoned before a congressional committee to account for the breathtaking shallowness of its probe, it produced a letter blessing its performance from one of the nation's most highly credentialed experts on legal ethics: Charles Wolfram of Cornell University Law School. Wolfram opined that it is "customary and appropriate" for a company to conduct a "preliminary investigation" before undertaking a "full-scale" one, and that the firm had not violated conflict-of-interest rules because Watkins had raised "business and accounting" issues, not issues regarding V&E's "own legal services."

"In a forthcoming Stanford Law Review article titled "The Market for Bad Legal Advice," Columbia Law School professor William Simon cites Wolfram's opinion as just one example of patently bad advice offered in exchange for lucrative compensation by academics whom he contends are becoming "enablers of pernicious... practices."

"...Simon isn't talking only about V&E and Enron. He cites the example of lawyers at another law firm who "gave hundreds of opinions to taxpayers to the effect that bizarrely complex and economically substanceless transactions... were acceptable ways to reduce taxes. Some of them were virtually copies of transactions that the IRS had specifically condemned."

"Or of Department of Justice luminaries advising that "various statutory and international law constraints on the President in the 'war on terror' were un-constitutional or otherwise not binding" in opinions that "exaggerated the authority for the conclusions and omitted inconsistent arguments and precedent."

"Simon's article seeks not just to diagnose the problem but also to prescribe and administer remedies. The most controversial will surely be the measure he calls "shaming." That process consists of having other academic ethics experts - like Simon - write law review articles brutally critiquing the opinions that their colleagues have offered while under retainer. This, he believes, will help deter the delivery of bad advice.

"Like most ethics experts contacted for this article, New York University School of Law's Stephen Gillers declines to share his thoughts on the ethics disputes that Simon discusses, observing that he socializes with all the experts named, including Simon. But he does venture this: Simon's article is "unique in my 30 years as a law teacher. It's unique for law professors to so aggressively criticize the behavior of other law professors - not their intellectual positions. This is about character and integrity..."

Law Review Course for Daniel Shinoff?

I'm tracking the actions of San Diego school attorneys. I found an interesting comment about some of them on Shaun Martin's blog. He notes that the California Court of Appeal rightly slapped down their SLAPP suit against citizens in Ramona (San Diego County). Perhaps a law review course at the University of San Diego Law School might be in order for the attorneys at Stutz, Artiano, Shinoff & Holtz.