Felarca et al v. Berkeley Unified School District et al
ORDER RE: TEMPORARY RESTRAINING ORDER AND INTERVENTION, AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE by Judge Vince Chhabria granting in part and denying in part 5 Motion for TRO. Case Management Statement due by 12/12/2017. Case Management Conference set for 12/19/2017 01:30 PM in Courtroom 2, 17th Floor, San Francisco. (vclc2S, COURT STAFF) (Filed on 11/9/2017)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
YVETTE FELARCA, et al.,
Case No. 17-cv-06282-VC
BERKELEY UNIFIED SCHOOL
DISTRICT, et al.,
ORDER RE: TEMPORARY
RESTRAINING ORDER AND
INTERVENTION, AND ORDER TO
SHOW CAUSE WHY PRELIMINARY
INJUNCTION SHOULD NOT ISSUE
Re: Dkt. Nos. 5, 26
1. To the extent that the plaintiffs are seeking to enjoin Berkeley Unified School District
from gathering documents responsive to Judicial Watch's Public Records Act request, that
request is denied.
2. However, the District is temporarily restrained from providing those documents to
Judicial Watch until after December 19th. There are serious questions going to the merits, and
the remaining factors overwhelmingly favor the plaintiffs. Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1134-35 (9th Cir. 2011).
3. After the District collects the documents and determines which ones are subject to
disclosure under the Public Records Act, the District is ordered to meet and confer with the
plaintiffs' counsel to consider any objections to disclosure under the First Amendment, the Public
Records Act, or other laws. In conferring on this topic, the parties should be aware that, to the
extent the District means to contend that the First Amendment can never apply to the release of
documents pursuant to public records laws, that argument will almost certainly fail. See, e.g.,
Perry v. Schwarzenegger, 591 F.3d 1147, 1159-60 (9th Cir. 2010) ("the government must justify
its actions not only when it imposes direct limitations on associational rights, but also when
governmental action would have the practical effect of discouraging the exercise of
constitutionally protected political rights."); AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir.
2003). The District should also consider the effect on political association rights, the risk of
harassment of District employees, and the safety of the District's employees as part of its
assessment of whether "the public interest served by not disclosing the record[s] clearly
outweighs the public interest served by disclosure of the record[s]." Cal. Gov. Code § 6255.
4. The meet and confer between counsel for the plaintiffs and the District must take place
by no later than December 8, 2017.
5. A case management conference will take place on December 19, 2017 at 1:30 p.m.,
with a joint case management statement due on December 12, 2017. Assuming a controversy
remains after the meet and confer process, the parties should be prepared to establish a briefing
schedule and a hearing date in January or February on whether to issue a preliminary injunction
preventing disclosure of documents while the litigation is pending.
6. Judicial Watch, if it so moves, will likely be permitted to intervene. If the motion is
not opposed, Judicial Watch may simply file the motion as an administrative motion under Local
Rules 7-11 and 7-12. If the motion is opposed, Judicial Watch may file an administrative motion
under Local Rule 7-11 to seek to shorten time on that motion, to allow the Court to rule on it
before the case management conference.
IT IS SO ORDERED.
Dated: November 9, 2017
United States District Judge
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