I’ll start with an excerpt from
MATHUR DISMISSES ANOTHER CHAIR: —But then El Ced comes to the chair’s rescue, and simpers; By Chunk Wheeler [aka Roy Bauer]
[Dissent 51, 9/12/00]
September 1, 2000: it’s 12:45, and I get a cell-phone call from Wendy P [today, she’s Wendy G], who’s been teaching all morning. She tells me that she has just served Raghu Mathur with papers regarding his “Judgment Debtor’s Exam.”
I should explain. You see, back in January of 2000, Mr. Goo filed a suit against Terry Burgess—and me—regarding my reports (in three issues of Dissent) regarding Mathur’s violation of a student’s right to privacy as delineated by a federal law (FERPA). That Mathur had violated that law was, at any rate, the conclusion of the district’s lawyer, Spencer Covert (yes, Covert—I’m not makin’ this stuff up!), who had been asked, by then-IVC president Dan Larios, to provide an opinion on the matter. Ironically, Mathur, a man who can neither detect nor pronounce irony, believes that the Dissent stories amounted to a violation of his privacy rights, and so he sued us for $50,000. According to Mathur, the only way I could have secured the documents I reported on was through the help of Terry Burgess, formerly the VP of Instruction. (That’s nonsense. The documents had been readily available on campus for years.) Thus Burgess was included in the suit.
Unfortunately for the Gooster, the great state of California has a law (the anti-SLAPP statute) designed to protect citizens from lawsuits that are filed by powerful interests—developers, politicians, et al.—merely in order to silence legitimate criticism. SLAPP suits are burdensome annoyances, or worse, for defendants, but they produce a chilling effect on potential criticism by others as well. They thwart free speech.
To make a long story short, we responded to Mathur’s suit by appealing to the anti-SLAPP statute, which yielded a quick dismissal. In court, Judge Brenner noted that my Dissent reports were both true and newsworthy and that, further, there was no evidence whatsoever that Burgess provided the information regarding Mathur that I had reported. In fact, he hadn’t.
As per the law, Brenner ordered Mathur to pay Burgess and me costs and attorneys fees. That amounted to $34,000 and change. Ouch! That occurred months ago.
But, as of this day (Sept. 1), Mathur hasn’t paid. In such situations, the prevailing side files for a “Judgment Debtor Exam.” Once it is granted, the “judgment debtor” is served papers that inform him that he must appear in court on a certain date. “If you fail to appear…you may be subject to arrest and punishment,” say the documents.
On August 29th, Carol Sobel, my attorney, filed for a debtor’s exam for Mathur. The order was granted on that day. So, on this day—the 1st of September—Wendy serves Raghu with the papers:
“Hi Raghu. I’ve got something for you!” chirps Wendy.
He stares but doesn’t move. She hands him the papers, smiling broadly. Eventually, he takes them, glumly thanks her, and then disappears behind the door of his office.
Later, someone tells me that she thinks she heard Mathur crying and banging his head against a chair. But she isn’t sure.
Could be, though. The document orders Mathur to bring 27 kinds of document, including
MATHUR DISMISSES ANOTHER CHAIR: —But then El Ced comes to the chair’s rescue, and simpers; By Chunk Wheeler [aka Roy Bauer][Dissent 51, 9/12/00]
September 1, 2000: it’s 12:45, and I get a cell-phone call from Wendy P [today, she’s Wendy G], who’s been teaching all morning. She tells me that she has just served Raghu Mathur with papers regarding his “Judgment Debtor’s Exam.”
I should explain. You see, back in January of 2000, Mr. Goo filed a suit against Terry Burgess—and me—regarding my reports (in three issues of Dissent) regarding Mathur’s violation of a student’s right to privacy as delineated by a federal law (FERPA). That Mathur had violated that law was, at any rate, the conclusion of the district’s lawyer, Spencer Covert (yes, Covert—I’m not makin’ this stuff up!), who had been asked, by then-IVC president Dan Larios, to provide an opinion on the matter. Ironically, Mathur, a man who can neither detect nor pronounce irony, believes that the Dissent stories amounted to a violation of his privacy rights, and so he sued us for $50,000. According to Mathur, the only way I could have secured the documents I reported on was through the help of Terry Burgess, formerly the VP of Instruction. (That’s nonsense. The documents had been readily available on campus for years.) Thus Burgess was included in the suit.
Unfortunately for the Gooster, the great state of California has a law (the anti-SLAPP statute) designed to protect citizens from lawsuits that are filed by powerful interests—developers, politicians, et al.—merely in order to silence legitimate criticism. SLAPP suits are burdensome annoyances, or worse, for defendants, but they produce a chilling effect on potential criticism by others as well. They thwart free speech.
To make a long story short, we responded to Mathur’s suit by appealing to the anti-SLAPP statute, which yielded a quick dismissal. In court, Judge Brenner noted that my Dissent reports were both true and newsworthy and that, further, there was no evidence whatsoever that Burgess provided the information regarding Mathur that I had reported. In fact, he hadn’t.
As per the law, Brenner ordered Mathur to pay Burgess and me costs and attorneys fees. That amounted to $34,000 and change. Ouch! That occurred months ago.
But, as of this day (Sept. 1), Mathur hasn’t paid. In such situations, the prevailing side files for a “Judgment Debtor Exam.” Once it is granted, the “judgment debtor” is served papers that inform him that he must appear in court on a certain date. “If you fail to appear…you may be subject to arrest and punishment,” say the documents.
On August 29th, Carol Sobel, my attorney, filed for a debtor’s exam for Mathur. The order was granted on that day. So, on this day—the 1st of September—Wendy serves Raghu with the papers:
He stares but doesn’t move. She hands him the papers, smiling broadly. Eventually, he takes them, glumly thanks her, and then disappears behind the door of his office.
Later, someone tells me that she thinks she heard Mathur crying and banging his head against a chair. But she isn’t sure.
Could be, though. The document orders Mathur to bring 27 kinds of document, including
All checkbooks, registers, and canceled checks for all savings, checking, credit union, bank, mutual fund accounts and/or all other accounts owned by you and/or you and your spouse for the past three years…All payroll check stubs for you and/or your spouse for the past three years…All passbooks for savings, checking, credit union, bank, mutual fund accounts, and/or all other accounts owned by you and/or your spouse for the past three years…All financial statements listing your assets…during the past three years…All stock registers or other records of stocks presently owned by you…All documents evidencing any partnership interest in property owned by you…All credit card applications…Ownership documents…Your state and federal income tax returns for the past thee years…
—and so on. Jeez, I’d cry too. The exam is set for September 19th….
--7-19-00
In the end, Mathur was forced to fork over about $32K (that’s what we settled for).
Mathur turned around and sued the district for not protecting him from me—despite the fact that I sued him only in response to his suing me for reporting a demonstrable fact about his misconduct.
At first, the district simply rejected Mathur’s suit. In the end, however, the trustees gave ‘im about $40K (as I recall) and soon made him Chancellor the district.
Really.
Below are some Dissent stories about our adventures in court in connection with Mathur’s unfortunate suit:
SUIN’ SAFARI!
by Chunk Wheeler [aka Roy Bauer]
[Dissent 46, 3/6/00]
February 29: After lunch, Carol, a friend of hers, Wendy, and I headed for Judge Michael Brenner’s courtroom in Santa Ana. Our hearing was set for 1:30.
We entered the building at about 1:20 and found our way to the elevators, where dozens of besuited lawyers stood around like hamsters, nervously eyeing the elevator doors while intermittently consulting wrist-watches. Even Carol seemed worried. Someone murmured: “Type A personalities.” I said: “Hey, don’t worry, baby! It’s 1:23, and we’ve got all the time in the world!”
My friend Jan, a lawyer, joined us. “They often put the most interesting cases last,” he said. “So we’re interesting, are we?”, said I. I wasn’t sure I wanted us to be interesting.
The door swung open at 1:40, and we filed in along with all the suits. Mathur was nowhere to be seen. We tried to guess which guy was Corfield, Mathur’s lawyer. Wendy had encountered him—or someone who might have been him—a few days before in Laguna Beach. She described him to me as “kinda a surf bum.” I scoured the room for such a person. I spotted one—way off to the left. He seemed to be lookin’ for the perfect wave. Sand fell from his pockets.
We watched the bailiff, who didn’t seem to have anything to do but swagger. I mentioned that, for many years, trustee John “Brown Boy” Williams was a bailiff. We watched this one as he slowly transferred a piece of paper from one end of the courtroom to another.
At 1:55, for some reason, the courtroom became eerily silent, and everyone stared in anticipation. But Brenner still didn’t show. At 2:00, a man in a judge costume started hangin’ around by the back door chewin’, but he was just teasin’ us, I guess, ‘cuz nothin’ happened.
Brenner emerged at 2:15, and he sure did look like a judge. The first case was Martinez v. Somethin’-or-other. Brenner told the lawyers he wasn’t up to speed, and so let’s do this another day. “My fault,” he said. In the next case, someone didn’t file something, and that wasn’t so good, apparently. Then, in the next case, a lawyer neglected to file the “opposition,” and so Brenner granted the summary judgment. Bang!
A case concerning “Commercial Wastepaper” was up next. Brenner spoke of a “grudge match” that had been going on for a long time. While that went on, I looked over at Corfield, who happily played Beach Blanket Bingo on his legal pad.
The judge said some critical things about the opposing parties. Wendy whispered something about “Judge Wapner” into my left ear. Meanwhile, Brenner evidently had to impose a $1000 fine on somebody, but he wasn’t sure quite how he oughta do that, and so, after a few moments of Solomonic reflection, he said, “I’ll tell you what; let’s split the difference. Five hundred dollars each.”
Wow. I hoped he wasn’t gonna pull this splittin’ maneuver in my case.
A suit involving “American Funds Service” was next. Someone wanted attorneys’ fees, but Brenner turned ‘em down flat.
By 2:45, the court had moved on to something amusingly referred to as “Green Burrito litigation.” Corfield had had enough; he went outside to wax his surfboard.
We passed notes around. In her note, Carol opined that Brenner “certainly is very cordial,” and that he has a sense of humor, unlike some o’ those surly and pompous judges she’s used to in Federal Court. Just then, Brenner looked at a one of the lawyers and said, “It’s a pleasure to see you”—which, I figure, was just his juristical way of sayin’: “How’s it goin’, asshole?”
By 3:00, the court had moved on to Klein v. Somebody, and a lawyer or the judge said that the case was just a “rehash.” This talk of rehashing led to more loose talk, and soon, a lawyer misspoke, asserting something about “heat.” “I’ve seen lawyers in heat,” quipped Brenner.
A short, attractive, blond dynamo got up to argue for her client in McCornan v. Pine Creek. Evidently, a landlord refused to rent to a guy because he was an African American. Wow. As the judge and the lawyers spoke, they referred to “sexual orientation,” “homosexual animus,” “outrageous conduct,” and whatnot. We all stared intently: it was just like an episode of LA Law.
At 3:30, Brian Wilson left the room again. Brenner expressed skepticism about something Surfer Girl said….
At 3:35, Brenner called for a ten minute recess, apparently to give the court reporter’s digits a rest. We went outside and jawed. I noticed that the case that had just been heard immediately preceded “Mathur v. Bauer” on the docket!
At 3:53, we were back inside, and, sure enough, “Mathur” was next. Here are my notes, which are pretty spotty:
BRENNER: Brenner notes that the case is a motion to strike. [That is, it’s a motion to dismiss the suit.] He asks attorney Sobel what she has to offer.
SOBEL: Carol refers to the purpose of the anti-SLAPP statute…she says something about “encouraging” resolution at the earliest possible stage. [The statute is designed to protect people against “Strategic Litigation Against Public Participation.” In other words, it’s designed to combat the chilling effect of lawsuits against people who speak out on matters of “public significance.”] The defendant’s burden, she says, is “miniscule.”
She says the sole cause of Mathur’s action is “invasion of privacy.” If any of the 4 key elements (which she lists) of such a case fails, the case must be dismissed. It is clear, she says, that Mathur is a public official. (Relative to…?) Mathur needs to make a case that the facts are false—or that’s it.
The articles and documentation in the newsletter concerned Mathur’s conduct as a public official, and the conduct of such people is always a matter of public concern. Hence, Mathur can’t prevail in this case. Keep in mind: he [Mathur] doesn’t contest the facts reported in the newsletters, and they’re enough to “puke a dog off a gut wagon!” [Well, I made up the part about the “gut wagon.”]
Invasion of privacy involves the public disclosure of private facts (and that’s not involved here). Mathur is a public official…
In these cases, the burden shifts to the plaintiff, who needs to provide “competent evidence” that he will [likely] prevail (in a trial). Mathur has not met that burden. His papers are devoid of (evidence of the requisite sort).
[Corfield projects cockiness during Carol’s remarks. Now, someone whispers, “Surf’s up!”]
CORFIELD: There’s an important distinction. The defendant’s counsel refers to defamation(?), but our complaint concerns, not defamation, but invasion of privacy. Mathur is suing because the defendant (and Mr. B) stole documents from a file…Bauer and Mr. B stole a letter that is privileged; they stole and published something that is confidential. The issue of truth or falsity—to which defendant’s counsel refers—is a “red herring.”
Corfield says that Bauer’s attorney hasn’t succeeded (in showing the applicability of the anti-SLAPP statute?).
Bauer, repeats Corfield, has stolen Mathur’s records.
Defendant’s counsel today tells us, says C, that Mathur must prove his case. Corfield refers to “Briggs.” …So I don’t have to prove my case; rather, I am obliged only to STATE A CASE.
The defendant’s moving papers, says C, are largely (1st Amendment?) boilerplate; (hence) they offer “obtuse” [sic; he means “abstruse”] language.
Bauer’s counsel is [comparing?] apples and oranges. We need to look at Schulmann (a Supreme Court case?).
BRENNER: “They” [the defendants] stole documents, you say. But there’s no evidence of that (in your papers). You don’t show how this defendant got these papers.
[NOTE: They’re referring to a letter of reprimand (of Mathur), which I had reproduced in Dissent (in January of 1999), that, evidently, is part of Mathur’s personnel file. But, of course, that I had possession of a copy of that document does not suggest that I, or anyone else, stole it from Mathur’s file.]
CORFIELD: (Says something; not much; I took no notes. Corfield describes Mathur as the “president of a university.”)
BRENNER: This defendant [Bauer] got the papers (the letter of reprimand) somehow…How Mathur performed his job in the past is newsworthy.
(Corfield argues that the events to which the “papers” are related occurred very long ago. In his filings, he refers to them as “ancient”--and thus unnewsworthy. Brenner seems to reject that adjective--“ancient”-- as applied here.)
SOBEL: Can I respond? [Sobel begins to discuss Schulmann…]
[At this point, Wendy briefly borrows my pen and tablet, and so my notes have a 2 minute gap.]
BRENNER: (He reads aloud from Schulmann.)
SOBEL: Carol directs Brenner to a section of Schulmann. The lawyers argue about the “standard” that must be met by the person who brings the suit. The judge favors Carol’s interpretation.
She refers to a “misdirected fax” (from Mr. B to the chancellor), which is cited by Mathur as evidence of my alleged “theft.” [The fax was a copy of a letter in which the district’s attorney, Spencer Covert, opines that Mathur had indeed violated federal law by distributing a student’s transcripts. In fact, Covert’s letter had been widely distributed on campus not long after it was sent by Covert to IVC.] The fax, she says, was sent to the chancellor two days after the publication of the first Dissent at issue in this case. There is no evidence that the fax even got to the defendant (Bauer). The faxed Covert letter never appeared in the newsletter. So where’s the evidence of theft?
BRENNER: Brenner opines that the Dissent stories are newsworthy. Further, there’s “no showing” that the reports were untruthful “that I can see.” There “is no showing” that, in the case of this defendant, the papers were unlawfully obtained. The evidence doesn’t seem to be here.
CORFIELD: Look at Schulmann. It isn’t about theft (?).
BRENNER: You keep saying (that the defendant engaged in theft). But there’s no evidence.
CORFIELD: We don’t have to prove that there was theft. He refers to 425.16 [California’s anti-SLAPP statute] and the Supreme Court.
BRENNER: …Brenner asks (I think) whether there is evidence that the defendants (Bauer and Mr. B) conspired…
Brenner says: I’ve denied these motions before, but the defendant [Bauer] is exercising his 1st Amendment rights. He is reporting on a matter of public interest.
Finally, Brenner says: I don’t think there’s any evidence…I will grant the motion [to dismiss Mathur’s suit].
CORFIELD: [Corfield looks as though someone has stolen his Woody.] C sputters something about a “leave to amend.”(?)
[Apparently, this “leave to amend” business is a desperate move on C’s part; Brenner responds as though Corfield has committed a faux pas. He indicates that he has made his ruling and that’s that.]
* * * * *
Well, we left the courtroom, and we were pretty damned pleased. Jan, who was very impressed by Carol’s performance, stepped back from her and intoned: “I’m not worthy.” Others squealed or laughed. We wandered down to the hall to the elevators, talking and joking.
As we waited for the elevator to arrive, Mr. Corfield snuck up behind us and then rudely interrupted, asking Carol about Mr. B’s attorney, with whom he wanted to arrange a conference. Wendy turned to him and said that Corfield was looking for her. As he commenced speaking, Surfer Joe poked Wendy hard in the shoulder, like she was Annette Funicello or somethin’. She kicked sand in his face. (Well, not really. She was very professional.)
Next: attorneys’ fees. Fun fun fun! —CW
March 2, 2000,
IRVINE WORLD NEWS
College president’s suit against professor dismissed
By Laura Hayes
On Tuesday, an Orange County Superior Court judge granted professor Roy Bauer a special motion to strike an invasion of privacy lawsuit filed against him in January by Raghu Mathur, president of Irvine Valley College.
“The motion was based on legislation to protect people like me when they are speaking the truth about a public official,” said Bauer.
The lawsuit charged that Bauer had published in his newsletter “Dissent” in January 1999 a confidential memorandum that Mathur claims was stolen from his personnel file. The 1996 memo centered on administrative concern with Mathur’s handling of a student’s transcript.
Carol Sobel, Bauer’s attorney, said the statute employed by the court is aimed at stopping at an early stage a lawsuit aimed at preventing citizens from participating in the legislative process.
“If the basis in the lawsuit is related to free speech and concerns a matter of public concern, then the lawsuit should be stopped at the earliest possible moment,” said Sobel.
Judge Michael Brenner ruled that how Mathur performs his duties as college president is a matter of public concern and he didn’t see anything in the published statements that appeared untrue, said Sobel.
After hearing from both sides, the motion was granted when the judge determined there was not enough evidence that Mathur would prevail in the invasion of privacy claim.
“You’ve got to show that you’re likely to win,” said Bauer.
Michael Corfield, Mathur’s attorney, said the judge only considered the defamation of character issue and failed to focus enough attention on the invasion of privacy issue. He said he will talk to Mathur about the possibility of an appeal.
MATHUR IN A LATHER: A SLAPP-SUIT COMEDY
By Big Bill B [aka Roy Bauer]
[Dissent 47, 3/20/00]
Background: on the 29th of February, Judge Michael Brenner of OC Superior Court granted a motion to dismiss Raghu Mathur’s lawsuit against me. Mathur had accused me of invading his privacy by reporting (in the January 11 & 19, 1999, issues of Dissent) his violations of a federal law that, ironically, protects the privacy of students. Brenner had ruled that the reports were “newsworthy” and that I should be afforded the protection of the 1st Amendment and California’s anti-SLAPP statute. Two weeks later, on the 14th of March, Judge McEachen, sitting in for Brenner, issued a ruling on Terry Burgess’ motion to dismiss (Burgess had also been named in the suit). Terry had been accused of conspiring with me to break into Mathur’s personnel file, thereby securing a copy of Larios’ reprimand of Mathur plus a legal opinion from the district’s attorney, Spencer Covert. According to Covert’s opinion, Mathur had indeed violated the federal law and district policy by distributing a student’s transcripts (in a failed attempt to discredit an administrator).
The misdirected philosopher:
MARCH 14: Addled by hypoglycemia and still hobbling from a nasty fall in the shower, I entered the big downtown court building, and, as usual, I didn’t get past the metal detector. At least they didn’t make me take off my shoes and belt, as they once did in the federal court building in LA!
Eventually, they let me in, and I headed upstairs to the 3rd floor, but I couldn’t find the courtroom anywhere. I consulted a directory: Brenner was on the 5th floor, not the 3rd! I headed up, arriving fifteen minutes late, at about 1:45. Entering courtroom 112, I beheld a stranger on the bench: a Judge David T. McEachen. Evidently, McEachen had taken over for Brenner for the day.
As I sat down next to Wendy, a pissed off lawyer was addressing the court about a company named “Paradigm.” “Paradigm took this money!” said someone, according to the lawyer. When the lawyer ceased yammering, Judge McEachen turned to the other guy, smiled benevolently, and said: “It’s your turn.”
Meanwhile, Wendy wrote me a note that said that we’re number 15, and McEachen’s now on number 9, and it shouldn’t take him long to get to us, ‘cuz most people didn’t file their 378s. —Lawyers talk that way.
The pissed off lawyer—a Mr. Burger—was fumin’ again, referring to another judge as “Black Jack Ryan,” which evoked laughter among the lawyers and bemusement or irritation from McEachen. The other guy responded with: “Mr. Burger will strike me if I’m wrong,” but he was wrong (I think), and Burger didn’t lay a finger on ‘im.
The next case concerned “Mass Mutual.” “You got the tentative,” said McEachen to the attorneys.
The tentative ruling:
Maybe they got it, maybe they didn’t. Wendy wrote me a note, saying that there was a tentative ruling in our case, too , but she was unable to secure the damned thing. The day before, we learned of its existence but were told that “Brenner doesn’t issue tentatives.” It turns out that Corfield and his partner—Mr. Rovell—were in the same boat as us, the HMS Clueless.
“Mass Mutual is taking it out of her hide,” said one lawyer, over on the right. The left lawyer, an Aussie in an ill-fitting suit, looked from my perspective (directly behind him) like he was standing at a urinal. The first guy—in his early 60s and dressed for a trip to Palm Springs—said he was “emotional” about the case. “I probably screwed up,” he confessed. They discussed the concept of “surprise.” “Surprise is not enough,” said someone.
I had no idea what they were talking about.
Suddenly lapsing into abominable incorrectness, someone spoke of the “lady lawyer up in Idaho,” but no one seemed to care. The Palm Springs guy seemed upset about the tentative judgment, which, he said, “is unjust in the extreme.” Then the Aussie stopped urinating, zipped up, and referred to the “shenanigans” of the Palm Springer, who, in response, pivoted slowly on his tasseled golf shoes with affected indignation. I looked over at the bailiff, who affected wariness, and then over at the court reporter, who affected consciousness. Blah blah blah, said the judge. My eyes glazed over. I lapsed into unconsciousness.
Love never had a chance:
Right about then, Wendy shoved at me and ordered me to get the hell out of the way. Apparently, it was showtime! I gave her and Diana G, the other attorney, a wide berth as they filed past me and then through the little gate—into the “inner sanctum,” as Wendy calls it. This time, Brian Wilson (Corfield) was benched, replaced by his partner Mike Love (Mr. Rovell).
Love never had a chance.
McEachen, wasting no time, referred to the tentative ruling—the one we had not yet seen—as we studied his face for clues. He announced that our motion to strike—i.e., our motion to have Mathur’s suit dismissed—had been granted, at least in the tentative ruling, by Brenner. (Whoopee!) According to Brenner/McEachen, the plaintiff—that’s Mathur—had not met “his burden” of showing that he would probably prevail in court. (According to the anti-SLAPP statute, the plaintiff must show that he will likely win, or the suit is thrown out right at the start, and the defendant gets attorneys’ fees.) He had accused Terry and me of stealing “private” documents (a reprimand and a legal opinion) from Mathur’s personnel file, but, said the judge, there was no indication of where the documents in question had actually come from. (They sure as hell didn’t come from Mathur’s personnel file!)
Last month, in her response (on my behalf) to Mathur’s complaint, Carol Sobel (my attorney) had argued that the Dissent articles about Mathur and the student’s transcripts were “newsworthy.” According to the new tentative, the plaintiff again hadn’t “controverted” that claim. Neither had he controverted the claim that Mathur is a “public official.” (I think Brenner even noted that, in the case of one document—the legal opinion by Spencer Covert—there is no evidence that I even received it. Maybe that was because, though the Dissent had referred to Covert’s opinion, it had never actually quoted from it.)
The upshot: Slam dunkage.
The judge closed with an analysis: “same facts, same result.” He was saying, I think, that Mathur’s opposition (his filed response to Terry’s motion to strike) simply repeated the failings of Mathur’s earlier opposition to my motion to strike. Ouch.
The Rovel grovel: a malarkey switcheroo
Back on the 29th, Carol had argued that the anti-SLAPP statute, which is designed to counter the chilling effect of lawsuits against those who speak out against the powerful, applies in this case, and we had prevailed on that basis. The two issues of Dissent in question (January 11 and 19, 1999) reported that Mathur violated a federal law—FERPA—plus district policy. (Such, again, was the opinion of the district’s own attorney, Spencer Covert.) Essentially, Mathur’s lawsuit complaint was that I had violated his privacy by revealing this fact, which, he argued, was of no public interest.
When in doubt, reverse gears! Now Mathur’s lawyers argued, not that I had revealed a fact, but that the fact was no fact. That is, though Mathur had indeed disseminated a student’s transcripts, that didn’t mean he violated FERPA (and district policy). I think the idea was that, since Mathur’s dissemination occurred “internal” to the college, it was not an illegal dissemination. In effect, Rovell and Co. were abandoning their original “privacy” malarkey in favor of “defamation” malarkey.
Rovell yammered a bit about the anti-SLAPP statute and then focussed on the notorious January 13 (1999) “misdirected fax.” That was Burgess’ fax of the Covert opinion, which had been sent, accidentally, to the District! Evidently, on the 21st of January, Chancellor Sampson wrote Burgess concerning that fax, and Burgess responded with a letter dated January 29. Rovell now argued that, in the January 29 letter, in a key line, Burgess made an admission that shows that his more recent “declaration” (a sworn statement submitted to the court) is perjurious! (At that moment, Wendy, showing admirable self-control, refrained from socking Rovell in the jaw. I was impressed.)
Rovell also referred to a declaration, in which an instructor describes the widespread availability of the Covert opinion by 1996 and its location in the academic senate’s files as part of the public record. Rovell rejected the entire declaration, arguing that its author’s opinion that these academic senate files are public is “entirely conclusory,” i.e., not supported by the facts.
The Dissent reports were “offensive,” said Rovell, who began to shine with nervousness. He seemed to say that the Covert opinion was a matter of attorney/client confidentiality. (Rovell failed to notice that the opinion was not written for Mathur, but for the district, which had requested a legal opinion regarding the fellow’s actions.) Clearly, said Rovell, the reporting of the Covert letter (and Larios’ reprimand of Mathur) would be “offensive and objectionable to any reasonable person.”
“Lastly,” said Rovell, we must address the matter of “newsworthiness,” regarding which there are “six elements.” One is the “social value” of the facts. Covert’s opinion notwithstanding, Mathur never violated federal law, said Rovell. “How can a false fact have a social value?” An instructor’s personnel file, he said, is “inviolate.” We’re talking about attorney/client documents, he said, inexplicably.
At this point, the court reporter stopped Rovell, asking him to slow down. “Go ahead—slower,” said McEachen. Rovell, glistening with sweat, slowed down, but he kept shinin’.
Newsworthiness: that’s the key
It was Diana’s turn. “Newsworthiness,” she said, isn’t the “last issue,” as Rovell suggested; it’s the “first.” Brenner had decided two weeks ago that the Dissent reports were “newsworthy,” that they had reported matters of “public concern.” How a public official performs his job—Mathur had been the Chair of the School of Physical Sciences at the time of his misconduct—is newsworthy.
Diana referred to Burgess’ January 29 letter. If one reads Burgess’ comment in context, she said, it is clear that he does not acknowledge having ultimately sent the fax to Bauer. (In fact, I never received this document from Burgess.)
Actually, it makes no difference, said Diana, who provided Bauer with the Covert letter, because the report of Mathur’s violations of FERPA were newsworthy, and that’s the key. Still, there’s no evidence that Burgess was the source.
Diana referred to testimony that Covert’s legal opinion was “in circulation” around campus already in 1996. She referred to a declaration by an individual who had sent a letter to trustees in September of 1997; the letter included a copy of the Covert opinion. Clearly, Bauer could have received the Covert letter from many others besides Burgess.
Diana noted that the plaintiff’s attorney is ignoring the three cases she cited in her motion, which delineate which publications constitute a violation of privacy. A misdirected fax, she says, doesn’t cut it.
Diana reminded the court that it had already ruled that the facts reported in the two issues of Dissent were “newsworthy,” and so the plaintiff doesn’t have a leg to stand on. There is absolutely no evidence, she added, that Burgess (or Burgess and Bauer) “stole” documents from Mathur’s personnel file.
The bottom line: the president of IVC, when the head of an academic department, violated district policy and federal law, said Diana. That is a matter of public concern, and that’s what Dissent reported. Further, “plaintiff has not and cannot dispute that Mathur is a public official.” Therefore, he cannot show, as he must, that he will probably prevail in this suit.
Yogi Berra:
McEachen then gave Rovell an opportunity to provide a brief response. Brenner’s opinion of the 29th was “very unfortunate,” said Rovell. There’s an “abundance” of new facts that show, he added, that Mathur never violated the law. Diana’s point about Burgess’ January 29 letter relied on a “play on words,” said Rovell. Facts “can be true or false.” The facts reported in Dissent are false. Mathur does not deny that, internally, he sent around these transcripts, but that’s not illegal. Blah blah blah.
Finally, the judge spoke. He said that he had read Brenner’s notes. And then: “I’m granting the motion. To quote the esteemed Yogi Berra, it’s ‘déjà vu all over again.’” BOOM!
Out in the hallway, we yucked it up pretty good. When Corfield and Rovell approached us with outstretched hands, we shook ‘em. “If Brenner were here, he would have denied the motion,” said surfer dude Corfield. He was kidding, I guess.
Diana, still hangin’ ten, called Carol with her cell phone. “Hey Carol, we’re done. We won,” she said. Wendy turned to me: “Yeah, they got thumped.”
We walked with Diana downstairs. Out front, her ride drove up. She said: “Next, fees.”
Yeah. —BBB [Roy Bauer]
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