Petitioners, vs. Respondent. Real Party in Interest. - League of

Petitioners, vs. Respondent. Real Party in Interest. - League of

No. H03 1 658 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT COUNTY OF SANTA CLARA and PETER KUTRAS, JR., as the County ...

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No. H03 1 658 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

COUNTY OF SANTA CLARA and PETER KUTRAS, JR., as the County Executive of the County of Santa Clara, Petitioners,

vs. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA, Respondent.

CALIFORNIA FIRST AMENDMENT COALITION Real Party in Interest.

Superior Court of the State of California, County of Santa Clara Court Case No. 1-06-CV-072630 The Honorable James P. Kleinberg

APPLICATION OF CALIFORNIA STATE ASSOCIATION OF COUNTIES AND THE LEAGUE OF CALIFORNIA CITIES FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS

Jennifer B. Henning (SBN 193915) California State Association of Counties 1100 K Street, Suite 101 Sacramento, CA 95814 Telephone: (916) 327-7535 Facsimile: (916) 443-8867 Attorney for Amicus Curiae League of California Cities and California State Association of Counties

APPLICATION OF THE CALIFORNIA STATE ASSOCIATION OF COUNTIES AND THE LEAGUE OF CALIFORNIA CITIES FOR PERMISSION TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS

To the Honorable Conrad L. Rushing, Presiding Justice: The League of California Cities and the California State Association of Counties respectfully apply for permission to file the attached amicus curiae brief in support of the petitioners. The League of California Cities is an association of 478 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide-or nationwide-significance. The Committee has identified this case as being of such significance. The California State Association of Counties (CSAC) is a non-profit corporation. The membership consists of all 5 8 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsel's Association of California and is overseen by the Association's Litigation Overview Committee, comprised of County Counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter significantly affecting all counties. The issues at stake in this case are of direct concern to amici and their members. Amici strongly support, and are deeply committed to the principles of openness in government that form the foundation of the California Public Records Act. At the same time, amici's members have a clear interest in this matter because a ruling that requires local governments to produce the components of a

Amicus Curiae Brief

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computer mapping system at no cost will directly impair their ability to finance the development and maintenance of such systems in a time of limited government resources. Counties and cities throughout the State have developed and continue to maintain computer mapping systems at considerable research and development expense. Local governments use these computer mapping systems, which are now commonly referred to as geographic information systems (GIS), to provide a wide variety of services that benefit the public such as infrastructure expansion, land use planning, zoning, flood control, parcel mapping, and emergency service response. The development and maintenance of GIS is expensive. As a result, local governments have explored ways to offset these costs. Some have entered into cooperative agreements with other local agencies. Others have charged licensing fees to private and public entities for GIS. However, these fmancing arrangements have been threatened as local governments throughout the State have received requests for copies of the components of their GIS systems from utility companies, engineering firms, map companies, real estate brokers and other commercial concerns, at no cost other than the nominal price of the physical CD-Rom that contains the system. These requests typically come in the form of a request for public records under the California Public Records Act. The proposed amicus curiae brief will assist the Court in deciding the appeal because the brief addresses whether the components of a GIS system are protected from disclosure by section 6254.9 of the Government Code. Section 6254.9 and authority interpreting this section were extensively addressed by the trial court below in its written decision. The respondent trial court's decision is predicated on the incorrect assumption that Section 6254.9's inclusion of the term "computer mapping system" is superfluous and entirely redundant of the terms Amicus Curiae Brief

2

"software" and "computer programs," which are also referenced in the statute. The failure to recognize Section 6254.9's exemption for computer mapping systems will impair the ability of local governments to finance, develop, and maintain such systems. Given the natural constraints of briefing the full merits of a case, the parties have focused on the particular facts of this case, including the designation of Santa Clara County's GIS basemaps as Protected Critical Infrastructure Information under the Critical Infrastructure Information Act of2002. Thus, amici attempt to provide a perspective r egarding the broader interests of public agencies in whether computer mapping systems are subject to disclosure under the California Public Records Act. For these reasons, the League of California Cities and the California State Association of Counties respectfully request leave to file the Amicus Curiae attached hereto. DATED: June 10,2008 Respectfully Submitted,

Amicus Curiae Brief

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . .. . . . . . . . ... ... . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .... . . . . . .ii INTRODUCTION . . . . .. . . . . . . . . . . .. . . . . . . . . . . . . . ... . . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . . ... . . . . . 1 ARGUMENT . . . . . ... . . . . . . ... . . . ..... . . . . . . . . ... ... ... . . . . . . . . . . . . . . .. . .. . . . ... . . . . . ..... ... . 3 A.

The Trial Court's Holding Conflicts With The Plain Language Of The Public Records Act, Which States That "Computer Mapping Systems" Are Not Public Records . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . .. 3 1.

The Trial Court' s Interpretation of Section 6254.9 Renders the Exemption for "Computer Mapping Systems" Superfluous and Without Meaning. . . . . . . . .... . . . . . . . . ... . . . . . .... 3

2.

Real Party Incorrectly Suggests That Applying Section 6254.9's Exclusion of "Computer Mapping Systems" Will Impair The Public's Right To Access Public Information . . . . .8

3.

The Legislative History of Section 6254.9 Confirms That The GIS Basemaps Are A Component Of A "Computer Mapping System" . .. . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .... 1 1

B.

Other States Have Implemented Statutes Similar To Section 6254.9, Which Were Adopted To Protect Computer Mapping Systems From Disclosure . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . .... . . . 1 5

CONCLUSION . .... . . . . . . . . . . . . . . . .. . . . . . . . . ..... . . . . . .... . . . . . . ... . . . . . . . .. . . . . . . . .. . . . . ...18 CERTIFICATE OF WORD COUNT . . . . . . . . . .. . . . . . ... . .. . . . . . . . . . . . . . . . . . . . . . . . ... . ... 1 9

TABLE OF AUTHORITIES Cases

Page(s)

Cadence Design Systems, Inc. v. Avant Corporation (2002) 29 Ca1.4th 2 1 50 ....... 5 California Teachers Assn. v. Governing Bd. ofRialto Unified School Dist. ( 1 997) 1 4 Cal.4th 627 ............ . ............. ....................................18 Chen v. Franchise Tax Bd. (1 988) 75 Cal.App.4th 1 1 1 0 ............ ... . . ........ . ......6 City ofHuntington Park v. Superior Court ( 1 995) 34 Cal.App.4th 1 293 ............. ............................. .............3 City ofLong Beach v. Department ofIndustrial Relations (2004) 34 Cal.4th 942 .

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Consumer Defense Group v. Rental Housing Industry Members (2006) 1 3 7 Cal.App.4th 1 1 85 ............ ........................................... 3 County of San Joaquin v. State Water Resources Control Board ( 1 997) 54 Cal.App.4th 1 1 44 . . ...... . . .... . .... ...... . . ......................... .....2 Delaney v. Baker (1 999) 20 Cal.4th 23 . . . . .... ... . .......... . ....................... .. . . 1 1 Director, Department ofInformation Technology v. Freedom ofInformation Commission (2005) 274 Conn. 1 79 . . . . ......... .......................... .......1 6 Edelstein v. City and County ofSan Francisco (2002) 29 Cal.4th 1 64, 1 7 1 .........5 Estate ofKrammer ( 1 978) 20 Cal.3d 567... . .. . ............ . .......... .... ....... .....6, 8 Gay Law Students Assn. v. Pacific Tel. & Tel. Co. ( 1 979) 24 Cal.3d 458, 478...... . ........... . .. . ........ ............................3 Haynie v. Superior Court (200 1 ) 26 Ca1.4th 1 06 1 .. . ... .......... ........ ....... .....9, 1 0 Hutnick v. United States Fidelity & Guaranty Co. ( 1 988) 47 Cal.3d 456 ......... ............ . .......................... .. . . . .........1 1 In re Joyner ( 1 989) 48 Cal.3d 487....... . . ... . ...... . . .................... . .......... ... 1 6 Metcalfv. County ofSan Joaquin (2008) 4 2 Ca1.4th 1 1 2 1 ... . .. ........ . . . ... . ......4,7

11

Micro decisions, Inc. v. Skinner (2004) 889 So. 2d 87 1 . . . . ... . . .. . . . . . . . . . . . . . . . . ... 1 6 Pacific Gas & Electric Co. v. County ofStanislaus (1 997) 1 6 Ca1 .4th 1 1 43 ..... ......... . . ... . . . . . . . ... . ... . . . . . . . .... . .. .. . ... . . . . . ... 1 1 People v. Foreman (2005) 126 Cal.App.4th 3 3 8 .. . . .... ... . ............ .... .... . ..... . . 6 Quarterman v. Kefauver ( 1 997) 55 Cal.App.4th 1 3 66 .................. . ..... . ........ 1 1 Shoemaker v. Myers ( 1 990) 52 Cal.3d 1 ........ . . .. . . . . ... .. . .. . .............. . .. . ...... . 3 State of California v. Altus Finance (2005) 3 6 Cal.4th 1284.............. . . . ...........3 Williams v. Superior Court ( 1 993) 5 Ca1.4th 3 3 7 . . . . . .... . . .. . . .......... .... ..... . 9, 1 0

Statutes

Cal. Constitution, Art I §3 , subd. (b)( 1 ) ... . . . . . . .. . .... . . ... . . . .. . .......... ... ........... 8 Civ. Proc. Sec. 389

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5 III. Comp. Stat. 1 40/7( 1 )(i) .. ..... ..... .. . . . . . . . .. . . . . . .. . . .............................. 1 7 Gov. Code§ 6253.9 .. . . ... .... . ........... . ..... . . . . . . . . . . . . . ..... ... . ....... . .... ........... 4 Gov. Code, § 6250 . . . .. . .. . . . . . ........ . . . ..... .. . . . .. . . . . . . ... . ... . . ...... .. . ...... . . ... ....8 Gov. Code, § 625 2 . . ... . ... . . .. ... . . .... . ........ . . ..... . ... . ......... . . ......... . . . . . .......9 Gov. Code, § 6254.. ...... ..... .... .......... . ...................... . . ..... . . ........ . . .......9 Gov. Code,§ 6254.9 .. . . .... .. ... ..... ............ .. ........... ............. ......... .Passim Gov. Code, § 6257 .. . . . . .. . . . . . ...... . .......... . . . . . . . . . . . . . . .... . . . . . . ..... . . . ....... 1 2, 1 3 Gov. Code§ 5 1 0 1 0.5 . . . . .. .. .. . . .. .... ... . . . . .. . . . . . . . . . . ...... ... . . . . ... ..... . . .. . . . . . .....4 Iowa Code, § 22.4 ..... . .. ... . . . .......... . ..... . . . . . . ... . . . . . . ............... . . . . . . . . . . ..... 1 7 Md Code Ann., § 1 0-90 1 , et seq

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Nev. Rev. Stat. Ann.,§ 239.05 .. . . ..... . . . . . .... . . . . . .. . . . . . .. . . . . . .. . .... . . ... . . . . . .. . ...1 7 N.C. Gen. Stat.,§ 1 3 2- 1 0 . . . . . ...... ............ ......... ......... . ............... ......... 1 7 Miscellaneous

Assembly Bill No. 3265 (Chapter 447, Statutes of 1 988) .... . . . ..... . . . .......... ....... ......1 1 , 1 2, 1 3 , 1 5

lll

Introduced Feb. 11, 1988 Reg. Sess . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . ... 11, 12 Amended April 4, 1988 Reg. Sess..... . . . . . . . ........ . . . . . . ....... . 12, 13 As amended June 9, 1988 Reg. Sess.. . . . . . ...... . . . . . . . . . . . ..... . ..13 , 14 Assembly Com. On Governmental Organization, Analysis of Assem. Bill No. 3265 (1987-1988 Reg. Sess.) as proposed To be amended April 4, 1988 .. . . . . . . . . . . ... . . . . . . . . ....... . . . . . . . .. . ...... . . 13,14 Cal. Dept. Finance, Analysis of Assem. Bill. No. 3265 (1987-1988 Reg. Sess.) as amended June 9, 1988 . . ......... . .. . . . . ...... .. ....14 (1987-1988 Reg. Sess.) as amended June 15, 1988 . ..... . . . . . . . . . ..... ... . 14, 15

Geographic Information Systems as a Decision Making Tool (1991) 52 Ohio St. L.J. 3 51, 3 52 . .... . . . .. . . .. . .. . . . . . . . . . . . ........ . . . . ... .... 7, 16 Sen. Com. On Governmental Organization, Analysis of Assem. Bill No. 3265 (1987-1988 Reg. Sess.) as amended June 9, 1988.. . ....... . . . . . ..... . .........14 (1987-1988 Reg. Sess.) as amended June 15, 1988 . . . . .. ... . ... . . . . . . . . .......14 Speich, The Legal Implications Of Geographical Information Systems (GIS) (2001) 11 Alb. L.J. Sci. & Tech. 3 59, 379 . .... . . . . .... . ...... . . . . ..............16 88 Ops.Cal.Atty.Gen. 153 (2005) . ...... . ... . . . . ........ . . . . . . . ...... .... . . . . .....4, 5, 6, 7

IV

1.

INTRODUCTION

The members of amici, which consist of counties and cities throughout California, have developed and continue to maintain computer mapping systems at considerable development and maintenance expense. Local governments use these computer mapping systems, which are now commonly referred to

as

geographic information systems (GIS), to provide a wide variety of services that benefit the public such as infrastructure expansion, land use planning, zoning, flood control, parcel mapping, and emergency service response. The development and maintenance of GIS is expensive. As a result, local governments have explored ways to offset these costs. Some have entered into cooperative agreements with other local agencies. Others have charged licensing fees to private and public entities for GIS. However, these financing arrangements have been threatened as local governments throughout the State have received requests for copies of the components of publicly developed GIS systems from utility companies, engineering firms, map companies, real estate brokers, and other commercial concerns, at no cost other than the nominal price of reproduction. These requests typically come in the form of a request for public records under the California Public Records Act. Petitioner Santa Clara County denied Real Party California First Amendment Coalition' s (CFAC) request for the production of the County's GIS Basemap based in part on Section 6254.9 of the Government Code. 1 (Real Party Return dated April lO, 2008, p. 19.) The Legislature specifically adopted Section 6254.9, which exempts computer mapping systems from production under the Public Records Act, to allow public agencies to recoup the costs of developing and maintaining such systems. The parties briefed the applicability of Section 6254.9 in the proceedings below, and the issue was specifically addressed by the trial 1

All section references are to the Government Code unless otherwise indicated.

Amicus Curiae Brief

1

court in its written decision. Notwithstanding Section 6254.9, the trial court ordered Santa Clara County to produce its GIS Basemap even though the Real Party expressly claimed that the information contained in the GIS Basemap was "readily available from other sources, including but not limited to the assessor's parcel maps available on the County's web site. (Real Party Return dated April 1 0, 2008, p. 1 9; see also Real Party Prelim. Opp. dated June 25, 2007, p. 4.) Given the natural constraints of briefing the full merits of a case, Santa Clara County and Real Party have focused on the particular facts of this case, including the designation of Santa Clara County's GIS basemaps as Protected Critical Infrastructure Information under the Critical Infrastructure Information Act of 2002. Santa Clara County thoroughly reviewed the cases and authority interpreting the Critical Infrastructure Information Act in its briefs, thus amici will not repeat these arguments herein. 2 Instead, amici will focus on providing a broader perspective regarding the general interests of public agencies in whether computer mapping systems are subject to disclosure under Section 6254.9 of the Public Records Act.

2 Amici notes that Real Party alleges that the Department of Homeland Security erroneously validated the GIS Basemap as "critical infrastructure information," and argues that the Court should compel disclosure notwithstanding this designation. (Real Party Return dated April 1 0, 2008, pp. 23-31 .) Thus, Real Party's arguments suggest that Real Party would have needed to name the Department Homeland Security as an indispensable party pursuant to Code of Civil Procedure section 389 in order to challenge the decisions of this federal agency. (See County of San Joaquin v. State Water Resources Control Board (1 997) 54 Cal.App.4th 1 1 44 [In an action filed by established water users challenging restrictions imposed under new federal standards for water quality and wildlife protection, court found the United States Bureau of Reclamation was an indispensable party].)

Amicus Curiae Brief

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I.

ARGUMENT

A.

The Trial Court's Holding Conflicts With The Plain Language Of The Public Records Act, Which States That "Computer Mapping Systems" Are Not Public Records

1.

The Trial Court's Interpretation of Section 6254.9 Renders the Exemption for "Computer Mapping Systems" Superfluous and Without Meaning.

In statutory construction cases, a court's fundamental task is to ascertain the intent of the legislature so as to effectuate the purpose of the statute, beginning with an examination of the statutory language, and giving the words their usual and ordinary meaning. (State of California v. Altus Finance (2005) 3 6 Cal.4th 1284, 1 295.) However, statutory interpretation requires more than simply looking up dictionary definitions, and stitching together the results. (!d. at p. 1 296.) "Specific statutes must be interpreted as part of the whole of the statutory scheme in which they appear." (Consumer Defense Group v. Rental Housing Industry

Members (2006) 1 37 Cal.App.4th 1 1 85 , 1208.) The rules of statutory construction further provide that "in attempting to ascertain the legislative intention effect should be given, whenever possible, to the statute as a whole and to every word and clause thereof, leaving no part of the provision useless or deprived of meaning." (Gay Law Students Assn.

v.

Pacific Tel. & Tel. Co. ( 1 979) 24 Cal.3d

458, 478.) It is a cardinal rule that courts must "not presume that the Legislature performs idle acts, nor [can they] construe statutory provisions so as to render them superfluous." (Shoemaker v. Myers ( 1 990) 52 Cal.3d 1 , 22� City of

Huntington Park v. Superior Court ( 1 995) 34 Cal.App.4th 1 293 , 1 3 00 ["Two cardinal rules of statutory construction are that: ( 1 ) a construction of a statute which makes some words surplusage is to be avoided, and (2) we do not presume Amicus Curiae Brief

3

the Legislature performs idle acts"].) Thus, courts "should avoid a construction that makes any word surplusage." (Metcalfv. County ofSan Joaquin (2008) 42 Cal.4th 1 1 2 1 , 1 1 3 5.) Section 6254.9 of the Public Records Act specifically excludes "[c]omputer software developed by a state or local agency" from the definition of "public record," and provides the "agency may sell, lease, or license the software for commercial or noncommercial use." The Act further provides that "computer software" includes "computer mapping systems, computer programs, and computer graphics systems." (Gov. Code,§ 6254.9(b).) Therefore, "computer mapping systems" are not public records under the California Public Records Act, and this exemption cannot be avoided by asking for the constituent components of such a system. 3 Here, the trial court adopted an interpretation of Section 6254.9 that renders the term "computer mapping system" entirely superfluous. In so doing, the trial court did not cite a single California case that interpreted Section 6254.9. Instead, the trial court relied exclusively on a 2005 Attorney General Opinion that interpreted Section 6254.9. (PA 1 88 1 :12-1 882:26.) Indeed, the trial court's analysis of the term "computer mapping systems" merely quotes the following portion of the Attorney General 's opinion stating that Section 6254.9: . . . does not refer to or include basic maps and boundary information p er se (i.e., the basic data compiled, updated, and maintained by county assessors), but rather denotes unique computer programs to process such data using mapping functions -- original programs that have been designed and produced by a public agency. (See, e.g., §§ 6254.9, subd. (d), 625 3 .9, subd. (f) [distinguishing "record" from "software in which [record] is maintained"] , 5 1 0 1 0.5, subd. (i) [defining "GIS 3

Section 6253.9 is not relevant to the analysis of whether the Santa Clara County's GIS Basemap is exempt from disclosure under Section 6254.9, because Section 6253.9, subdivision (g), provides that "[n]othing in this section shall be construed to permit public access to records held by any agency to which access is otherwise restricted by statute."

Amicus Curiae Brief

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mapping system" as system "that will collect, store, retrieve, analyze, and display environmental geographic data . . ." (itali cs added)]; see also Cadence Design Systems, Inc. v. Avant! Corporation (2002) 29 Cal.4th 215 [action between two "software developers" who design "place and route software"]; Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 171 [delay in Implementation of elections system because necessary "software" not yet "developed" and tested]; Computer Diet. (3d ed. 1997) p. 441 [defining "software" as "computer programs; mstructions that make hardware work"]; Freedman, The Computer Glossary: The Complete Illustrated Diet. (8th ed. 1998) p. 388 ["A common misconception is that software is also data. It is not. Software tells the hardware how to R-rocess the data. Software is run.' Data is processed' ] .) Accordingly, parcel map data maintained in an electronic format by a county assessor does not qualify as a "computer mapping system" under the exemption provisions of section 6254.9. (PA 1881:12-1882:26; 88 Ops.Cal.Atty.Gen. 153 at pp. 14-15 (2005).) None of the cases or dictionary references cited in the Attorney General 's Opinion interpreted Section 6254.9. Moreover, these authorities could not conceivably shed light on the statute's legislative history, because these authorities post-date the 1988 enactment of Section 6254.9. Although the opinions of the Attorney General are entitled to considerable weight, they are not binding upon the judiciary. (City ofLong Beach v.

Department ofIndustrial Relations (2004) 34 Cal. 4th 942, 952 [court declines to adopt analysis contained in Attorney General 's opinion] .) This Court should decline to adopt the reasoning of the Attorney General and the trial court because their construction of Section 6254.9 violates three fundamental principles of statutory interpretation. First, the Attorney General 's opinion renders the term "computer mapping system" entirely superfluous. The opinion states that computer mapping system "denotes unique computer programs to process such data using mapping functions -- original programs that have been designed and produced by a public agency."

Amicus Curiae Brief

5

(88 Ops.Cal.Atty.Gen. 1 53 at p. 1 4 [Emphasis added] .) The problem with this proposed interpretation is that Section 62 54.9, subdivision (b), states that "computer software" includes "computer mapping systems, computer programs, and computer graphics systems," thus the statute already contains a separate reference to "computer programs." (Emphasis added.) By determining that "computer mapping systems" are merely a type of "computer program," the Attorney General' s opinion improperly rendered the term "computer mapping system" mere surplusage. Second, the Attorney General's opinion's ignores the plain language of Section 6254.9, which defines "computer software" "[a]s used in this section" to include "computer mapping systems." (Emphasis added.) It is well-established that if the Legislature provides an express definition of a term, that definition ordinarily is binding on the courts. (People v. Foreman (2005) 1 26 Cal.App.4th 338, 342; see Chen v. Franchise TaxEd. (1988) 75 Cal.App.4th 1 1 1 0, 1 1 23 [when the Legislature defines the language it uses, its definition is binding upon the court even though the definition does not coincide with the ordinary meaning of the words].) However, the Attorney General and the trial court in this case ignored Section 6254.9's express definition of "software," and instead relied on external definitions of "computer software" that did not purport to define this term as used in Section 6254.9. (See 88 Ops.Cal.Atty.Gen. 1 53 at p. 14.) In so doing, the Attorney General created an artificial distinction between a computer mapping system's "data" and "software" that is not contained in the statute, thus violating the rule that courts should not add to or alter the words of a statute to accomplish a purpose that does not appear on the statute' s face. (Estate ofKrammer ( 1 978) 20 Cal.3d 567, 572.) By concluding that the term "computer mapping system" only refers to a "software" component, the Attorney General's opinion causes Section 6254.9 's definition of "software" to be both circular and ambiguous. Thus, by Amicus Curiae Brief

6

adopting the Attorney General's opinion, the trial court also violated the rule that courts should avoid constructions that makes any word surplusage. (Metcalfv.

County ofSan Joaquin (2008) 42 Cal.4th 1 1 2 1 , 1 1 3 5.) Third, the trial court improperly created conditions to the applicability of Section 6254.9 that are not contained in the statute. There is no dispute that the GIS basemap is a component of a "computer mapping system" within the meaning of Section 6254.9. The trial court specifically acknowledged that Santa Clara County introduced evidence that a geographic information system "consists of software, hardware, and data.'.4 (PA 1 882:26- 1 883 :2.) Nonetheless, based on a misinterpretation of Section 6254.9, the trial court held that the "issue here is not what GIS consists of, but rather what a GIS basemap consists of. County does not conclusively establish the GIS basemap is software and not just data." (PA 1 883:1 - 1 883:3.) As a result, the trial court ordered Santa Clara County to segregate out and produce its GIS basemap even though Section 6254.9 does not contain any distinction between the "data" component and the "software" component of a computer mapping system. In short, the plain language of Section 6254.9 does not support an interpretation that allows parties to subvert the protections of Section 6254.9 by requesting the components of a computer mapping system in a piece-meal fashion. The Attorney General and, subsequently, the trial court misinterpreted Section 6254.9 by adopting a construction that essentially redacted the term "computer mapping system" from the statute. The interpretation advocated by the Real Party, adopted by the trial court, violates the fundamental principle of statutory interpretation that courts must not add to or alter a statute to accomplish a purpose 4

This is consistent with a commentator's description of the four major parts of GIS as: "(I) the hardware (computer, monitor, plotter, disk drives); (2) the software; (3) the database; and (4) the personnel to operate the system." (Note, Geographic Information Systems as a Decision Making Tool (1991) 52 Ohio St. L.J. 351, 352.)

Amicus Curiae Brief

7

that does not appear on the face of the statute or from its legislative history.

(Estate ofKrammer (1978) 20 Cal.3d 567, 572.) The trial court's decision should be reversed accordingly.

2.

Real Party Incorrectly Suggests That Applying Section 6254.9's Exclusion of "Computer Mapping Systems" Will Impair The Public's Right To Access Public Information

In adopting the California Public Records Act, the Legislature declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Gov. Code,§ 6250 [Emphasis added] .) This principle is now enshrined in the state Constitution as the result of an initiative adopted by the voters in 2004: "The people have the right of access to information concerning the conduct of the people's business, and therefore, . . . the writings of public officials and agencies shall be open to public scrutiny."5 (Cal. Const., art. I,§ 3 , subd. (b)(l) [emphasis added] .) The exception for computer mapping systems set forth in Section 6254.9 is consistent with the policy of public disclosure set forth above. Section 6254.9, subdivision (a), of the Government Code states that computer software which is defined for the purposes of the statute to include computer mapping systems, is not a public record. However, Section 6254.9, subdivision (d), provides that "[n]othing in this section is intended to affect the public record status of

information merely because it is stored in a computer. Public records stored in a computer shall be disclosed as required by this chapter." (Emphasis added.) Thus, Section 6254.9 creates an exemption for "computer mapping systems," 5 This initiative explicitly preserves existing statutory exceptions: "This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records." (Cal. Const., art. I, § 3, subd. (b)(5).)

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which might otherwise fall within Section 6252, subdivision (e) 's, broad definition of public records that are subject to the Act, but it nevertheless guarantees access 6 to information. The California Supreme Court has recognized other instances in which the Legislature exempted a record from production, but allowed or compelled disclosure of some of the information contained therein. In Williams v. Superior

Court (1993) 5 Cal.4th 337, the Court considered the exemption for complaints to law enforcement agencies contained in Section 6254, subdivision (f), which simultaneously required the disclosure of certain information contained therein: [T]he Legislature took a different approach than Congress. Instead of adopting criteria that would reqmre the exemption's applicability to be determined on a case-by-case basis, the Legislature, as already mentioned, adopted a series of amendments that required the disclosure of information derived from the records while, in most cases, preserving the exemption for the records themselves. The first such amendment, which the Legislature adopted in 1976, requires law enforcement agencies to disclose such information as the names and addresses of witnesses and persons involved in the incidents under investigation.

(!d. at p. 353 [emphasis added]; see also Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1072 ["This section specifies the information - not the records - that must be provided, such as the 'substance' of complaints and the 'factual circumstances surrounding the crime or incident.'"] .) Thus, the Court noted that the "Legislature's effort to provide access to selected information from law enforcement investigatory records would have been a wasted one if, as [the requesting party] proposes, the recordings themselves were subject to disclosure." 6 "Public records" are defined to include "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." (Gov. Code, § 6252(e).) "Writing," in turn, "means any handwriting, typewriting, printing, Photostatting, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored." (Gov. Code, § 6252(f).)

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(Haynie v. Superior Court, supra2 26 Cal. 4th at p. 1 072.) Here, similar to the arguments rejected in Williams and Haynie, Real Party argues that because it is entitled to the information contained in Santa Clara's GIS Basemap, Real Party is, therefore, entitled to the GIS basemap itself notwithstanding the exemption for "computer mapping systems." Santa Clara County points out in its Petition and briefing that it offered to provide Real Party with access to the information contained in its GIS Basemap, though it is not producing the GIS Basemap itself. (Santa Clara P&A dated June 12, 2007, pp. 1 4 and 33-34.) Likewise, Real Party repeatedly contends that "the underlying information sought by CF AC . . . is readily available from other sources, including but not limited to the assessor's parcel maps available on the County's own website." (Real Party Return dated April 1 0, 2008, p. 1 9; see also Real Party Prelim. Opp. dated June 25, 2007, p. 4.) Real Party, thus, does not identify any specific information that is being withheld. Instead, Real Party relies on the functional, rather than informational, attributes of the GIS Basemap. (Real Party Prelim. Opp. dated June 25, 2007, p. 4; Real Party Return dated April 1 0, 2008, pp. 1 6- 1 9.) Real Party explains that "unlike the assessor's parcel maps, the Basemap Data is searchable and georeferenced ... two features that are essential for the sophisticated, computer­ assisted analysis of geographic relationships between multiple sets of data." (Real Party Return dated April 1 0, 2008, p. 1 9 [emphasis added].) Real Party goes on to provide examples of the analytical functionality of the GIS Basemap, including "[a]nalysis by property owners of tax assessments/zoning decisions," "[u]se by public interest groups," "[i]nvestigations by the news media," and "private sector use," which can result in the creation of "new applications for Basemap Data." (Real Party Return dated April 1 0, 2008, pp. 1 6- 1 7.) Real Party's arguments demonstrate that it is seeking to compel the Amicus Curiae Brief

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production of components of Santa Clara County's computer mapping system in violation of Section 6254.9. Real Party's contention that the underlying information sought by CFAC is readily available from other sources" destroys its argument that Santa Clara County improperly withheld any information that must be disclosed pursuant to Section 6254.9, subdivision (d). Accordingly, the court should reverse the trial court's decision granting Real Party's petition for writ of mandate. 3.

The Legislative History of Section 6254.9 Confirms That The GIS Basemaps Are A Component Of A "Computer Mapping System"

"The goal of statutory construction is to ascertain and effectuate the intent of the Legislature." (Pacific Gas & Electric Co. v. County ofStanislaus ( 1 997) 1 6 Cal.4th 1 1 43 , 1 1 52.) "Ordinarily, the words of the statute provide the most reliable indication of legislative intent. " (Ibid.) However, where a statute is ambiguous, a court may examine the history and background of the statutory provision in an attempt to ascertain the most reasonable interpretation of the measure. (Delaney v. Baker ( 1 999) 20 Cal.4th 23 , 29.) "The evolution of legislation from its introduction to its final form may provide some insight into the underlying legislative intent." (Quarterman v. Kefauver ( 1 997) 55 Cal.App.4th 1 366, 1 373.) "[R]eports of legislative committees and commissions are part of a statute's legislative history and may be considered when the meaning of a statute is uncertain." (Hutnick v. United States Fidelity & Guaranty Co. ( 1 988) 47 Cal.3d 456, 465, fn. 7.) Here, Section 6254.9 was enacted through the passage of Assembly Bill No. 3265 (Chapter 447, Statutes of 1 988). Assembly Bill No. 3 265 was introduced on February 1 1 , 1 988 at the request of the City of San Jose. (Assem. Bill No. 3265 ( 1 987- 1 98 8 Reg. Sess.) as introduced Feb. 1 1 , 1 988; Assem. Com. Amicus Curiae Brief

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On Governmental Organization, Analysis of Assem. Bill No. 3265 ( 1 987- 1 988 Reg. Sess.) as proposed to be amended April 4, 1 98 8.) The City of San Jose sponsored Assembly Bill No. 3265, because it had just developed a computer mapping system known as the Automated Mapping System ("AMS"). (Amici Request for Judicial Notice ("RJN"), Ex. A, Tab 9, p. SP-3.) The City of San Jose stated in a memorandum accompanying its proposed legislation: The AMS is the product of eight years of efforts on the part of Public Works to collect and store on computer magnetic tape, city wide information regarding the location of public improvements and natural features. This wide range of data can be arranged in various ways to produce many types of maps for specialized uses, such as fire response, sewer collection, or police beat maps. Public works estimates that development costs to date have exceeded $2 million dollars.

(Amici RJN, Ex. A, Tab 9, p. SP-3.) The City explained that since the AMS was developed, the City had received "a number of requests from utility companies, engineering firms, map companies, and other commercial concerns, for copies of the system in computer readable form, i. e., magnetic tape." (Ibid. ) These requests came in the form of requests under the California Public Records Act. (Ibid.) The Legislature repeatedly acknowledged this background and legislative purpose throughout its consideration of Assembly Bill No. 3265. As introduced, Assembly Bill No. 3265 proposed to amend Section 6257 by adding an exemption for "proprietary information," which was defined to include "computer readable databases, computer programs, and computer graphics systems." (Assem. Bill No. 3265 ( 1 987-1 988 Reg. Sess.) as introduced Feb. 1 1 , 1 988.) The bill was then amended to delete the introduced version of the bill and proposed to add a new Section 6254.9. (Assem. Bill No. 3265 ( 1 987- 1 988 Reg. Sess.) as amended April 4, 1 988.) The amended bill replaced the term "proprietary information" with the term "computer software," which was defined for the purposes of the statute to Amicus Curiae Brief

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include, "computer readable data bases, computer programs, and computer graphics systems." (Ibid. ) The Assembly Committee on Governmental Organization analysis dated April 5, 1988 stated that "computer software" as defined is not a public record for the purposes of the California Public Records Act, but that information stored on computers retains its public record character. (Assem. Com. On Governmental Organization, Analysis of Assem. Bill No. 3265 (1987- 1988 Reg. Sess.) as proposed to be amended April 4, 1988 [Emphasis added].) The analysis addressed the purpose of the bill in reference to the needs of the City of San Jose: The City of San Jose, the sponsor of the bill, has developed various computer readable mapping systems, graphics systems, and other computer pr�grams for c�vic pla�in� purposes. � number of utility compantes, engmeenng firms, pnvate consultants and other commercial interests are requesting the city's software under the California Public Records Act. The city introduced the bill in order to: a) make it clear that the software is not itself a public record; allow the City to sell, lease, or license the b) software at a cost greater than the "direct costs of duplication", as specified by the Public Records Act (Government Code § 6257). The City is concerned about recouping the cost of developing software.

(Ibid. ) The analysis further explained that "information is not shielded from the California Public Records Act 'merely because it is stored on a computer."'

(Ibid. ) On June 9, 1988, the bill was amended to, among other things, to revise the definition of "computer software" to include computer "mapping systems," rather than the broader term computer "readable data bases." (Assem. Bill No. 3265 ( 1987-1988 Reg. Sess.) as amended June9, 1988.) On June 1 4, 1988, the Senate Committee on Governmental Organization provided the following discussion in reference to the amended bill: Amicus Curiae Brief

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The City of San Jose, the sponsor of this bill, has developed various computer readable data bases and other computer stored mformation for various civic planning purposes. A number of private parties have requested use of the city's software under the Public Records Act for profit-making purposes. The sponsor argues that the proprietary information requested has been developed and maintained by the city at great expense. According to the author, the purpose of the bill is to clarify that computer software ts not itself a public record and to authorize a public agency to sell, lease, or license the software at a cost greater than the direct costs of duplication, as specified by the Public Records Act. The bill would permit the city of San Jose and other governmental agencies to recoup development costs of computer databases sold to the public. (Sen. Com. On Governmental Organization, Analysis of Assem. Bill No. 3265 (1987- 1988 Reg. Sess.) as amended June 9, 1988.) The Senate Rules committee repeated these comments in an analysis of the bill on June 2 3, 1988. (Sen. Com. On Governmental Organization, Analysis of Assem. Bill No. 3265 ( 1987- 1988 Reg. Sess.) as amended June 15, 1988.) On June 16 , 1988, the California Department of Finance issued an analysis of the bill noting that "[t]he bill specifically includes computer mapping systems as computer software thereby permitting their sale." (Cal. Dept. Finance, Analysis of Assem. Bill. No. 3265 (1987- 1988 Reg. Sess.) as amended June 9, 1988.) The Department provided the following fiscal analysis: The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial depending on the price of the information, programs, or graphtcs, and conditions of the sales or licensmg agreement. Since the demand and conditions of sale or license are not known, it is not possible to estimate the potential revenue.

(Ibid.) The Department again repeated this analysis in reference to an amended version of the bill, which contained the now current language of Section6254.9. (Cal. Dept. Finance, Analysis of Assem. Bill. No. 3265 (1987- 1988 Reg. Sess.) Amicus Curiae Brief

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as

amended June 15, 1 988.) The aforementioned legislative history confirms that Section 6254.9 was specifically designed to protect computer mapping systems from disclosure, and to authorize public agencies to recoup the costs of developing and maintaining a computer mapping system by selling, leasing, or licensing the system. Contrary to the arguments raised by Real Party, Section 6254.9 does not authorize the piece­ meal production of the components of a computer mapping system. Indeed, such a piece-meal production would directly conflict with the legislative intent articulated above. Section 6254.9 only requires the production of public record information, and Real Party's allegation that the information it seeks is readily available from other sources undermines any notion that Santa Clara County improperly withheld information that must be disclosed pursuant to Section 6254.9, subdivision (d). Like the City of San Jose, which sponsored Assembly Bill No. 3265, Santa Clara County spent almost $4 million to create and maintain its GIS Basemap. (Santa Clara P&A dated June 12, 2 007, pp. 9 and 32 -3 3 .) Santa Clara County notes that if it were required to provide the GIS Basemap to all requesters at the nominal cost of production, there would be little incentive for other public or private entities to enter into cooperative arrangements to finance the development and maintenance of the GIS Basemap. (Santa Clara P&A dated June 12, 2 007, pp. 32 -3 3.) Thus, Santa Clara County's GIS Basemap falls squarely within the intended protections of Section6254.9.

B.

Other States Have Implemented Statutes Similar To Section 6254.9, Which Were Adopted To Protect Computer Mapping Systems From Disclosure

"In resolving questions of statutory construction, the decisions of other Amicus Curiae Brief

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jurisdictions interpreting similarly worded statutes, although not controlling, can provide valuable insight." (In re Joyner (1989) 48 Cal.3 d 487, 492 .) Based on this principle, Real Party cite case law from Florida and Connecticut in support of their argument that Santa Clara must disclose its GIS Basemap. (Real Party Return dated April 1 0, 2 008, p. 42 , n. 1 3 .) However, these cases are of weak persuasive value because neither of these States have an exemption for computer 7 mapping systems similar to Section 6254.9. California is hardly alone in addressing the policy choices posed between cost recovery and the free disclosure and distribution of the components of a GIS system. (See Note, Geographic Information Systems as a Decision Making Tool ( 1991 ) 52 Ohio St. L.J. 351 , 365.) Over ten years ago, a commentator observed: The great cost can be a primary concern when developing a GIS. One method of financing a GIS is through the government budget which may not be very promising especially in harsh economic times. Another alternative would be to finance a GIS by charging user fees for the final products. Under this approach, the user would pay for the costs of reproduction of the map products and a fee to pay for the implementation, development, and maintenance costs.

(Ibid. ) Thus, while there is little dispute regarding the value to the public of developing and maintaining GIS as a tool for governmental agencies, the cost of developing GIS remains a significant barrier to implementation. (Speich, The

Legal Implications Of Geographical Information Systems (GIS) (2 00 1 ) 1 1 Alb. L.J. Sci. & Tech. 359, 3 79.) Several states have promoted the development of GIS by adopting statutes similar to Section 6254.9, which exempt such computer mapping systems from 7

The Connecticut case cited, Director, Department ofInformation Technology v. Freedom ofInformation Commission (2005) 274 Conn. 179, interpreted Connecticut's Freedom of Information Act, General Statutes§ 1-200 et seq. (!d. at p. 182. ) However, no exemption similar to Section 6254.9 was addressed by this case. (Ibid.) Likewise, in Micro decisions, Inc. v. Skinner (2004) 889 So. 2d 871, the parties did not even dispute that the GIS maps were public records, thus this case lacks persuasive value in determining whether the GIS B asemaps are exempt from disclosure under California law.

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(!d. at p. 873.)

state public record disclosure laws. The states of Illinois, Iowa, Maryland, Nevada and North Carolina all have public records exemptions similar to Section 6254.9, which either exempt GIS from disclosure or allow governmental entities to charge fees to recoup their development and maintenance costs. (See 5 III. Comp. Stat. 1 40/7(1 )(i) ["computer geographic systems" exempt from disclosure in Illinois]; Iowa Code, § 22 .4 ["geographic computer database" exempt from disclosure in Iowa]; Mad Code Ann., § 1 0-90 1, et seq. [governmental units may sell mapping system services and products to the general public for a fee that "reasonably reflects the cost of creating, developing, and reproducing the product in whatever format is available" in Maryland]; Nev. Rev. Stat. Ann., § 2 39.05 [Nevada governmental entities may charge a fee for producing information from a "geographic information system" that covers the gathering and entry of data, as well as maintenance and updating of the database]; N.C. Gen. Stat., § 1 32 - 1 0 [North Carolina counties and cities may charge a fee as a condition to producing components of a geographical information systems].) In short, the out of state authorities cited by Real Party are not analogous to the present case, because neither Connecticut nor Florida have an exemption for computer mapping systems similar to Section 6254.9. While California may have been one of the first states to statutorily address the policy choice and balance between cost recovery and disclosure of the components of a GIS system, it is hardly unique in its approach toward this issue. Reasonable minds may differ regarding whether the costs of developing and maintaining computer mapping systems should be borne by the taxpayers at large or whether the costs should be specifically borne by those parties that actually use such systems and develop derivative applications of such systems for a profit. However, despite Real Party's endorsement of the former approach, it is well settled that courts may not pass upon the wisdom, expediency, or policy of a Amicus Curiae Brief

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legislative act. (California Teachers Assn.

v.

Governing Bd. ofRialto Unified

School Dist. (1 997) 14 Cal. 4th 627, 633 .) By adopting Section 6254.9, California's legislature authorized public agencies to recoup the costs of dev eloping and maintaining computer mapping systems. As the aforementioned authorities establish, California is not alone in adopting this approach to promoting the development of GIS systems by cities and counties for the benefit of the public. Accordingly, this Court should reverse the trial court's grant of Real Party's petition for writ of mandate.

II.

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment of the Superior Court. DATED: June 1 0, 2008 Respectfully Submitted, CALIFORNIA STATE ASSOCATION OF COUNTIES

.AUI9meys for Amicus Curiae League of California Cities and the California State Association of Counties

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CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.204(c)( l ).) The text of the brief consists of 5,05 8 words as counted by the Microsoft Word word-processing program used to generate the brief. DATED: June

Amicus Curiae Brief

1 0, 2008

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PROOF OF SERVICE

I do hereby declare that I am a citizen of the United States employed in the County of Orange, over 1 8 years old and that my business address is 333 W. Santa Ana Blvd., Suite 407, Santa Ana, California 92702- 1 3 79. I am not a party to the within action. On June 10, 2008, I served the foregoing APPLICATION OF CALIFORNIA STATE ASSOCIATION OF COUNTIES AND THE LEAGUE OF CALIFORNIA CITIES FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF IN SUPPORT OF PETITIONERS on all

other parties to this action by placing a true copy of said document in a sealed envelope in the following manner: [X] (BY U.S. MAIL) I placed such envelope(s) addressed as shown below for collection and mailing at Santa Ana, California following our ordinary business practices. I am readily familiar with this office's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service in a sealed envelope with postage fully prepaid. [X] (BY DHL) I placed such envelope(s) addressed as shown below for collection and delivery by DHL with delivery fees paid or provided for in accordance with this office's practice. I am readily familiar with this office's practice for processing correspondence for delivery the following day by DHL. [] (BY FACSIMILE) I caused such document to be telefaxed to the addressee(s) and number(s) shown below, wherein such telefax is transmitted that same day in the ordinary course of business. (BY PERSONAL SERVICE) I caused such envelope(s) to be [] hand-delivered to the addressee(s) shown below. [X] (STATE) I declare under penalty of per.ju under the laws of " the State of California that the r ·ng is true and o ect. ..

G:�a'Cawir.AI'PEALS\Sa.. a- C:O.aay v s.pcriorCowt\PI.OOFOF SERVIC£.Me

NAME AND ADDRESS TO WHOM SERVICE WAS MADE

Robert Nakamae, Esq. Deputy County Counsel Office of the Santa Clara County Counsel 70 West Hedding Street 9th Floor, East Wing San Jose, CA 95 1 1 0- 1 770

Attorney for Petitioners County Of Santa Clara And Peter Kutras, Jr.

Roger Myers, Esq. Rachel Matteo-Boehm, Esq. Kyle Schriner, Esq. 5 60 Mission Street, 2 5th Floor San Francisco, CA 941 05

Attorney for Real Party California First Amendment Coalition

Hon. James P. Kleinberg c/o Clerk of the Court Santa Clara Superior Court: 1 9 1 N. First Street San Jose, CA 95 1 1 3 0 1 990

Trial Court

Supreme Court of California 3 50 McAllister Street San Francisco, CA 94 1 02-4797 Office of the Clerk (Via Dill.)

Court of Appeal, Sixth District Clerk's Office 3 3 3 W. Santa Clara Street, Suite 1 060 San Jose, CA 95 1 1 3

0:\UNin.�ata ct.n.C:O...:ytt s.p..:rior C""'"'OOF OFSERVJCEdoc