A Humboldt County Superior Court judge has ordered the city of Eureka to pay Davis attorney Paul Nicholas Boylan almost $90,000 for his work defending the Journal from a city appeal that sought to block the release of video footage of a controversial arrest.
"This shows there's a price to the city's legal adventurism," Boylan said of the order, which Judge Christopher Wilson signed last month. "You've got so many places where this money could have gone. This is a huge, huge expenditure of taxpayer money solely for the purpose of keeping the public in the dark on an issue they're interested in. There's no justification. None."
The award stems from a two-year legal battle that saw the city fight the Journal's petition asking the court to release video footage from the dash camera of a Eureka police patrol car that captured the Dec. 6, 2012, arrest of a 14-year-old suspect. The arrest led to excessive force allegations, which led to the arrest of one of the involved officers. (Charges were later dismissed.)
In May of 2015, Wilson granted the Journal's petition over the city's objections, finding that the public's interest in viewing the video outweighed the privacy concerns of anyone involved. The city quickly appealed, arguing that the video should be considered a confidential police officer personnel record, which are granted special protections under state law. At this point, Boylan agreed to represent the Journal in the case on contingency, meaning he'd pursue fees and costs from the city if he successfully defended the appeal; if the city prevailed, he wouldn't make a penny.
In July, the appellate court issued a published opinion in the Journal's favor, setting a statewide precedent that police videos depicting an arrest that occurred in public cannot be considered confidential personnel records. Three days after the court's ruling, Boylan emailed Eureka City Attorney Cyndy Day-Wilson and urged her to accept the outcome.
"I am not posturing when I say that, should you appeal this further, you won't win," Boylan wrote. "Although anything is possible, a reversal of the appellate court's opinion is extremely unlikely for a bunch of procedural and substantive reasons. Further appeal will do nothing but waste more public employee time and taxpayer money."
Day-Wilson did not heed Boylan's advice and instead petitioned the California Supreme Court to depublish the appellate court's opinion — meaning the city would still have to turn over video of the 2012 arrest but the case wouldn't set a statewide precedent. The supreme court denied the city's request in October.
Shortly after the denial, Boylan said he reached out to the city to discuss a possible settlement with regard to the fees and costs the appellate court ruled he was entitled to. The city offered to pay $5,000, according to Boylan, and settlement talks crumbled.
When Boylan filed a motion in Wilson's court requesting attorney fees, he argued that he'd worked more than 170 hours on the case, deserved an hourly rate of $650 and a multiplier to account for the fact that he took the case on contingency and it resulted in a public benefit. In total, he asked for more than $150,000 in fees and costs. Day-Wilson countered that this was ridiculous, arguing that Boylan's hours were inflated and his requested hourly rate was well in excess of the one the city paid — $175 an hour — for outside counsel on the case. Further, Day-Wilson argued, there was absolutely no public benefit to the case and Boylan's legal advice was ineffective, meaning whatever he's owed should be reduced by half.
After a multitude of back-and-forth filings, Wilson ruled last month in Boylan's favor, ordering the city to pay him $87,600 — 115.9 hours of work paid at $500 per hour with a 25 percent enhancement because he took the case on contingency and another $15,000 because the city fought his fees request. The ruling takes Boylan to task for some hours estimates that "seem unreasonably high," repeatedly admonishes the city for making assertions unsupported by evidence or case law but deems that "the public significantly benefits by being able to obtain police video of an arrest, especially where there are suspicions or allegations of excessive force."
Coupled with the more than $10,000 the city spent on the appeal, the total bill for Eureka's taxpayers came out to about $100,000 — a not insignificant hit to the city's $27 million general fund. (For comparison's sake, that number's a bit shy of the $110,000 annual contract the city recently canceled with the local chamber of commerce to run its visitor's center and a bit more than the $90,000 in annual salary and benefits the city pays an entry-level police officer.)
Eureka City Manager Greg Sparks said he thinks there's enough money in the city attorney's existing $562,000 budget for this year to cover Boylan's $87,600 bill, meaning the city council won't have to make a special allocation to cover the costs.
Sparks was noncommittal when asked who within City Hall made the decisions to challenge the Journal's petition seeking release of the video, appeal Wilson's ruling and finally petition the state supreme court for review. The case has only been agendized for discussion in closed session with the city council a couple of times, and no final council action has ever been taken on the case. But Sparks seemed to indicate the case was pursued at the council's discretion.
"Certainly, staff can't make that decision — not the city attorney, not the city manager," he said. "I can't comment on what was discussed in closed session but, certainly, the council provides direction to the city manager and the city attorney on issues like this."
As to why no action has ever been reported out of closed session on the case if decisions were being made — like whether to appeal or petition the supreme court — Sparks said "the city attorney advised the council on that."
If it is the case that the council directed Day-Wilson in closed session to appeal Wilson's initial ruling or to later petition the supreme court to review the case, that's a violation of California's open meeting laws — known as the Brown Act — according to Terry Francke, general counsel for the nonprofit government watchdog Californians Aware, who also helped revise the act in 1994.
Francke said in an email to the Journal that these are absolutely decisions that should have been reported out of closed session. He pointed to California Government Code section 54957.1 (a)(2), which holds that the legislative body of any local agency should publicly report out of closed session any approval given to its legal counsel to seek appellate review or relief, with the report disclosing the vote, the identities involved in the legal action and the "substance of the litigation."
None of the five sitting councilmembers, the city attorney nor the mayor returned emails seeking comment for this story.
Boylan said this has been "one of the most bizarre" cases he's ever seen, saying the ultimate question is why the city would "go forward with this exotic legal theory" at such a substantial liability to taxpayers only to shield the public from seeing an incident involving public employees that transpired on a public street. Ultimately, however, Boylan said there is a public benefit to the case.
"The benefit is that nobody can withhold a video on the grounds that it's a personnel document for something that happened in public," he said. "There's a benefit to the public because this case sets to rest — forever — the use of that argument. ... It's rare for an appellate attorney to encounter an issue that is so clean. Appellate issues are oftentimes enormously complicated, usually dealing with the interpretation of statutes that are in conflict. This is different. This is a matter of common sense."
Editor's note: In the interest of full disclosure, it should be noted that this reporter personally filed the petition seeking disclosure of the dash cam video in this case and authored the lower court briefings on behalf of the Journal.
Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or firstname.lastname@example.org. Follow him on Twitter @thadeusgreenson.