Peter L. I-Iaviland (SBN 144967) Scott S. Humphreys (SBN 298021) havilandp@ballardspahr.com humphreyss@ballardspahr.com BALLARD SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 Telephone: 424.204.4400 Facsimile: 424.204.4350 Attorneys for Petitioners SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO NATIONAL CONFERENCE OF BLACK MAYORS, a Georgia not?for-pro?t corporation; SACRAMENTO MAYOR KEVIN M. JOHNSON, in his of?cial capacity as the former President of the National Conference of Black Mayors; and EDWIN K. PALMER, in his of?cial capacity as Chapter 7 Trustee for the National Conference of Black Mayors, Petitioners, v. CITY OF SACRAMENTO CITY CHICO COMMUNITY PUBLISHING, INC. a/k/a SACRAMENTO NEWS REVIEW, a California corporation; and DOES 1 through 20 inclusive. Respondents. 1 Case No. EXPAR APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION [Memorandum in Support; Declaration of Scott Humphreys: and [Proposed] Order submitted herewith] EXPARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION EX PAR TE APPLICATION On July 2, 2015 at . . . or as soon thereafter as counsel can be heard, in the above? entitled Court, located at 720 Ninth Street, Sacramento, CA 95814, counsel for Petitioners the. National Conference of Black Mayors Sacramento Mayor Kevin M. Johnson, in his of?cial capacity as the former President of the NCBM, and Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (collectively "Petitioners?) will appear, ex parte, pursuant to California Rule of Court 3.1200, et seq, to obtain: A Temporary Restraining Order preventing Respondents the City of Sacramento and the Sacramento City Attorney?s Of?ce (collectively, the ?City?) from releasing or disclosing to Respondent Sacramento News Review or to any other person or entity any e?mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney?client and work product privileges and which have been sent or received by: the National Conference of Black Mayors (ii) the of?ce of Sacramento Mayor Kevin M. Johnson acting in his of?cial capacity as the former President of the NCBM (?President Johnson?); Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (?Trustee Palmer?); and (iv) Ballard Spahr LLP, acting in its capacity as counsel for the NCBM, President Johnson, and/or Trustee Palmer (the ?Privileged Communications?); and An Order to Show Cause why a Preliminary Injunction should not be granted enjoining the City from disclosing the Privileged Communications until this Court has ruled on Petitioners? Veri?ed Petition for Peremptory Writ of Mandate ?led on July 1, 2015. (ii) Respondents were given timely notice of this Ex Parre Application on June 30, 2015. (See Decl. of Scott Humphreys, 2). Respondents have-not responded to the notice to con?rm whether they will oppose or not oppose this application. (Id. 3.) Ex parte relief is necessary because the City has stated that it will disclose the Privileged Communications to the Sacramento News Review commencing on July 6, 2015 absent a court order, which disclosure would cause Petitioners irreparable harm. (Id. 4.) This ex parte application is based on the Veri?ed Petition for Peremptory Writ of Mandate ?led July 1, 2015, the supperting Memorandum, Declaration of Scott Humphreys and Proposed Order submitted herewith, and any other evidence presented to the Court at the ex parte hearing. 2 EX PARTE APPLICATION FOR TEMPORARY RESTRATNING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY Pursuant to Rule of Court the known names, addresses and telephone numbers for Respondents are: Michael J. Benner, Esq. Sacramento City Attorney?s Of?ce 915 I St, Fourth Floor Sacramento, CA 95814 Phone (916) 808-5346 Cosmo Garvin Sacramento News Review 1124 Del Paso Blvd. Sacramento, CA 95815 mbenner?citvofsacramentoorg MEMORANDUM IN SUPPORT 1. When responding to a request under the California Public Records Act a public agency may not disclose privileged attorney-client communications and work product. See Cal. Gov. Code 6254(k) (records exempt from disclosure include ?[rJecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to. provisions of the Evidence Code relating to privilege?); see also Evid. Code 912, 950 et seq. (lawyenclient privilege); Outdoor v. Superior Court, (2001) 91 Ca1.App.4th 334, 339-40 (attorney?client documents protected from disclosure under the CPRA). 2. A writ of mandate is the appropriate procedure to obtain an order preventing a public agency from acting in an unlawful manner by releasing information the disclosure of which is prohibited by the CPRA. Marken v. Santa Monica-Malibu Unified School Dist, (2012) 202 Ca1.App.4th 1250, 1266?67. Injunctive relief, including a temporary restraining order and order to show cause why a preliminary injunction should not issue, is appropriate if necessary to preserve the status quo, and to prevent irreparable harm pending consideration of a preliminary injunction. See id. (trial court granted temporary restraining order and set a hearing on request for preliminary injunction based on petition for writ of mandate and ex parte application); see also Cal. Code Civ. Proc. 526. 3. On or about June 12, 2015, the Sacramento Bee and the Sacramento News Review ?led with the City expansive CPRA record requests seeking e-mails, ?nancial records, and other correspondence and records that reference or relate to Petitioners Sacramento Mayor Kevin M. Johnson and the National Conference of Black Mayors (See Veri?ed Compl. for Peremptory Writ of Mandate ?led July 1, 2015 (?Veri?ed Compl.?) at ?i 14.) 3 EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER to SHOW CAUSE RE: PRELIMINARY INJUNCTION it; 4. Hundreds of the e-mails, correspondence, communications, records, or other materials that are responsive to the CPRA requests are protected from disclosure by the attorney- client and work product privileges because they concern privileged communications between the NCBM and Mayor Johnson in his of?cial capacity as the former President of the NBCM (?President Johnson") and his agents with litigation counsel, Ballard Spahr LLP, which law ?rm has provided ongoing legal representation to the NCBM and President Johnson since May 30, 2013 (the ?Privileged Communications?). (Veri?ed Compl. 13, 14.) 5. On April 30. 2014. the NCBM ?led for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Northern District of Georgia. Edwin K. Palmer was appointed as Chapter 7 trustee for NCBM (?Trustee Palmer?). Ballard Spahr LLP has represented the NCBM and President Johnson before the NCBM filed for bankruptcy, during the bankruptcy and continues to represent the NCBM and President Johnson in post?bankruptcy litigation. (Veri?ed Compl. ?ll 1 l, 12.) 6. On June 25, 2015, Trustee Palmer who controls the attorney/client privilege for the NCBM has directed his attorneys, Ballard Spahr LLP, ?to assert the attorney client privilege as to any privileged documents/communications in connection with the CPRA requests submitted by the Sacramento Bee and the Sacramento News and Review to the City of Sacramento.? (Veri?ed Compl. 15, 21; Ex. thereto.) President Johnson has asserted the privilege on his own behalf with respect to the Privileged Communications. (Id. ii 21.) 7. In response, the Sacramento Bee agreed to modify its document requests to exclude the Privileged Communications. (Veri?ed Compl. ?51 16, Ex. thereto.) The SNR, however, has stubbornly refused to withdraw its request for the Privileged Communications, and the City Attorney?s Of?ce has taken the position and has informed Petitioners that the City will release the Privileged Communications to SNR commencing on July 6, 2015 ?absent a court order stating otherwise.? (Verified Compl. 17, 18, Exs. thereto; Decl. of Scott Humphreys 4.) 8. Disclosure of the Privileged Communications to SNR would violate the CPRA and cause Petitioners to suffer irreparable harm. Pecuniary compensation would not afford 4 EX PARTS APPLICATION FOR TEMPORARY ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION adequate relief and it would be impossible to ascertain the amount of compensation which would afford adequate relief if Respondents are not enjoined from disclosing the documents at issue. (Decl. of Scott Humphreys it 4.) 9. Accordingly, Petitioners respectfully request that the Court: enter a Temporary Restraining Order commanding the City of Sacramento and its of?cers, agents, employees and all other persons acting on its behalf, including the City Attorney?s Of?ce (collectively, the ?City?), with respect to records otherwise discoverable pursuant to the request made by the SNR under the California Public Records Act (the ?City Records?), not to release or disclose to the SNR or to any other person or entity any e-mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney?client and work product privileges and which have been sent or received by: the (ii) the office of Sacramento Mayor Kevin M. Johnson acting in his official capacity as the former President of the Trustee Palmer; and (iv) Ballard Spahr LLP, acting in its capacity as counsel for the NCBM, President Johnson, and/or Trustee Palmer (the ?Privileged Communications?); and enter an Order to Show Cause why a Preliminary Injunction should not be granted enjoining Respondents from disclosing the Privileged Communications until this Court has ruled on Petitioners? Veri?ed Petition for Peremptory Writ of Mandate ?led on July 1,2015. For the foregoing reasons, Petitioners? ex part? application should be granted. and the proposed order submitted herewith entered as an Order of the Court. Respectfully submitted, BALLARD SPAHR LLP ,mwu-?w BY: DATED: July 1, 2015 Peter L. Haviiand Scott S. Humphreys Attorneys for Petitioners 5 EX PARTE APPLICATION TEMPORARY RESTRAYNING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION Peter L. Haviland (SBN 144967) Scott S. Humphreys (SBN 298021) havilandp@ballardspahr.com humphreyss@ba11ardspahr.com BALLARD SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 Telephone: 424.204.4400 Facsimile: 424.204.4350 Attorneys for Petitioners SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO NATIONAL CONFERENCE OF BLACK MAYORS, a Georgia not-for-pro?t corporation; SACRAMENTO MAYOR KEVIN M. JOHNSON, in his of?cial capacity as the former President of the National Conference of Black Mayors; and EDWIN K. PALMER, in his of?cial capacity as Chapter 7 Trustee for the National Conference of Black Mayors, Petitioners, v. CITY OF SACRAMENTO CITY CHICO COMMUNITY PUBLISHING, INC. a/k/a SACRAMENTO NEWS REVIEW, a California corporation; and DOES 1 through 20 inclusive. Respondents. 1, Scott S. I-lumphreys, declare as follows: Case No. DECLARATION OF SCOTT IIUMPHREYS IN SUPPORT OF EXPARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER 1. I am an attorney licensed to practice law in the State of California. I am associated with Ballard Spahr LLP, counsel for Petitioners the National Conference of Black Mayors Sacramento Mayor Kevin M. Johnson, in his official capacity as the former President of the NCBM. and Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (collectively, ?Petitioners?). I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would competently testify as follows. 1 DECLARATION OF SCOTT IN SUPPORT OF EX PARTE APPLICATION (300quth June 30, 2015, at approximately 5:15 pm. I gave timely notice via e-mail to all parties in this matter that Respondents would be appearing ex parts on July 2, 2015 at 8:30 am. or as soon thereafter as counsel may be heard, in the above?entitled Court, located at 720 Ninth Street, Sacramento, CA 95814, to obtain: (0 (ii) 3. A Temporary Restraining Order preventing Respondents the City of Sacramento and the Sacramento City Attorney?s Of?ce (collectively, the ?City?) from releasing or disclosing to Respondent Sacramento News Review or to any other person or entity any e-mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney?client and work product privileges and which have been sent or received by: the National Conference of Black Mayors (ii) the of?ce of Sacramento Mayor Kevin M. Johnson acting in his of?cial capacity as the former President of the NCBM (?President Johnson?); Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (?Trustee Palmer?); and (iv) Ballard Spahr LLP, acting in its capacity as counsel for the NCBM, President Johnson, and/or Trustee Palmer (the ?Privileged Communications?); and An Order to Show Cause why a Preliminary Injunction should not be granted enjoining the City from disclosing the Privileged Communications until this Court has ruled on Petitioners? Veri?ed Petition for Peremptory Writ of Mandate ?led on July 1, 2015. Respondents have not responded to the notice to con?rm whether they will oppose or not oppose this application. 4. The ex parte application is proper pursuant to Cal. Gov. Code 6254(k), which provides that in responding to a request for records under the California Public Records Act records exempt from disclosure include ?[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege?); see also Evid. Code 912, 950 et seq. (establishing the lawyer?client privilege). Petitioners will suffer irreparable harm if the relief requested is not granted. The City has informed Petitioners that it will release the Privileged Communications, which are protected from disclosure by the attorney-client and work product privileges, commencing on July 6, 2015 ?absent a court order stating otherwise.? Pecuniary compensation would not afford adequate relief and it would be impossible to ascertain the amount of compensation which would afford adequate relief if Respondents are not enjoined from disclosing the documents at issue. 2 DECLARATION OF SCOTT HUMPHREYS IN SUPPORT OF EX PARTE APPLICATION I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this Ist day of July, 2015 at Los Angeles, California. ?t icy-x, mm. Scott S. Hunibhreys 3 OF: SCOTT 1N SUPPORT OF EX P.4RTE APPLICATION SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO NATIONAL CONFERENCE OF BLACK MAYORS, a Georgia not-for-profit corporation; SACRAMENTO MAYOR KEVIN M. JOHNSON, in his of?cial capacity as the former President of the National Conference of Black Mayors; and EDWIN K. PALMER, in his official capacity as Chapter 7 Trustee for the National Conference of Black Mayors, Petitioners, v. CITY OF SACRAMENTO CITY CHICO COMMUNITY PUBLISHING, INC. a/k/a SACRAMENTO NEWS REVIEW, a California corporation; and DOES 1 through 20 inclusive. Respondents. 1 Case No. ORDER: (1) GRANTING EX PART AND (2) GRANTING TEMPORARY RESTRAINING ORDER ORDER (1) GRANTING EX AND (2) GRANTING TEMPORARY RESTRAINING ORDER 43 DJ Ix.) On July 2, 2015, Petitioners the National Conference of Black Mayors Sacramento Mayor Kevin M. Johnson, in his of?cial capacity as the former President of the NCBM, and Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (collectively, ?'Petitioners?) appeared before this Court ex parte seeking relief pursuant to Cal. Rules of Court 3.1200 et seq. Good cause being shown, the Court hereby GRANTS Petitioners? ex parte application and HEREBY ORDERS as follows: 1. A Temporary Restraining Order is hereby entered prohibiting the City of Sacramento, its officers, agents, employees and all other persons acting on its behalf, including the City Attorney?s Of?ce (collectively. the with respect to records otherwise discoverable pursuant to a request made by the Sacramento News Review under the California Public Records Act (the ?City Records?), not to release or disclose to the Sacramento New Review or to any other person or entity, any e-mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney-client and work product privileges and which have been sent or received by: the National Conference of Black Mayors (ii) the office of Sacramento Mayor Kevin M. Johnson acting in his of?cial capacity as the former President of the NCBM (?President Johnson?); Edwin K. Palmer, in his official capacity as Chapter 7 Trustee for the NCBM (?Trustee Palmer?); and (iv) Ballard Spahr LLP, acting in its capacity as counsel for the NCBM, President Johnson, and/or Trustee Palmer (the ?Privileged Communications?); to An Order to Show Cause why a Preliminary Injunction should not be entered enjoining the City from disclosing the Privileged Communications until this Court has ruled on Petitioners? Veri?ed Petition for Peremptory Writ of Mandate ?led on July 1, 2015 is hereby set for hearing on at . If Respondents fail to appear at the hearing, the preliminary injunction shall enter forthwith. 2 ORDER (1) GRANTING EX PARTE AND (2) GRANTING TEMPORARY ORDER IT IS SO ORDERED. DATED: 2015 3 Hon. Judge of the Superior Court ORDER (1 GRANTING EX PARTE AND (2) GRANTING TEMPORARY RESTRAINING ORDER Peter L. Haviland (SBN 144967) Scott S. Humphreys (SBN 298021) havilandp@ballardspahr.com humphreyss@ballardspahr.corn BALLARD LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067?2909 Telephone: 424.204.4400 Facsimile: 424.204.4350 Attorneys for Petitioners SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO NATIONAL CONFERENCE OF BLACK MAYORS, a Georgia not?for-pro?t corporation; SACRAMENTO MAYOR KEVIN M. JOHNSON, in his of?cial capacity as the former President of the National Conference of Black Mayors; and EDWIN K. PALMER, in his of?cial capacity as Chapter 7 Trustee for the National Conference of Black Mayors, Petitioners, V. CITY OF SACRAMENTO CITY CHICO COMMUNITY PUBLISHING, INC. a/k/a SACRAMENTO NEWS REVIEW, a California corporation; and DOES 1 through 20 inclusive. Respondents. 1 Case No. VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF [Proposed] Peremptory Writ of Mandate submitted concurrently herewith VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF Petitioners the National Conference of Black Mayors Sacramento Mayor Kevin M. Johnson, in his of?cial capacity as the former President of the NCBM, and Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (collectively, ?Petitioners?) hereby petition this Court, pursuant to Code of Civil Procedure 1085 et seq, for a peremptory writ of mandate and injunctive relief to prevent Respondents the City of Sacramento and the City Attorney?s Of?ce (collectively, the ?City?) from disclosing any e-mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney-client and work product privileges in response to a records request made by Respondent the Sacramento News Review under the California Public Records Act Petitioners will ?le an ex parte application for a temporary restraining order and an order to show cause why a preliminary injunction should not issue to prevent the City from disclosing any privileged materials to SNR or to any other person or entity prior to ?nal resolution of this Veri?ed Petition for a Writ of Mandate. INTRODUCTION The Sacramento Bee and the Sacramento News Review have each submitted separate public record requests to the City pursuant to the CPRA seeking a broad array of e-mails, correspondence and other records and materials that relate to Sacramento Mayor Kevin Johnson and the NCBM of which Mayor Johnson was the President from May 30, 2013 to May 8, 2014. Hundreds of the documents otherwise responsive to the CPRA requests are privileged attorney-client communications and work product with litigation counsel Ballard Spahr LLP, which the City is not authorized to disclose under the CPRA. See Cal. Gov. Code 6254(k) (records exempt from disclosure include ?[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege?). Petitioners, who hold and who have asserted the attorney- client and work product privileges, will be irreparany harmed if these privileged communications are disclosed. 2 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF The Sacramento Bee has agreed that all privileged communications may be omitted from its public records request. The SNR, however, has refused to withdraw its request for such privileged communications, and the City has informed Petitioners that it will disclose the privileged communications to SNR commencing on July 6, 2015 unless Petitioners obtain a Court order prohibiting such disclosure. Because there is no other plain, speedy, and adequate remedy to prevent disclosure, Petitioners hereby petition this Court for a peremptory writ of mandate ordering that the City not disclose any of the privileged attorney-client communications or work product to SNR or to any other person. PARTIES 1. Petitioner NCBM is a Georgia not-for-pro?t corporation. It ?led for bankruptcy on April 30, 2014. 2. Petitioner Kevin M. Johnson is the Mayor of Sacramento, California and was the unanimously elected President of the NCBM from May 30, 2013 until May 8, 2014. Mayor Johnson is named in this action solely in his of?cial capacity as the former President elect of the NCBM and not as the Mayor of the City of Sacramento (?President Johnson?). 3. Petitioner Edwin K. Palmer is the Chapter 7 bankruptcy trustee for the NCBM, and has served in that capacity since April 30, 2014 (?Trustee Palmer?). As bankruptcy trustee, Trustee Palmer controls the attorney/client privilege (both pre?petition and post-petition) for the NCBM and President Johnson. 4. Respondent City of Sacramento is a municipal corporation and a public agency within the meaning of the CPRA, Gov. Code The Sacramento City Attorney?s Of?ce is a department of the City that is handling the public record requests at issue. 5. Respondent Chico Community Publishing, Inc. a/k/a Sacramento News Review is a California corporation with its principal place of business at 1124 Del Paso Blvd, Sacramento, California 95815. 6. Petitioners are ignorant of the true names and capacities of the Respondents sued as Does 1 through 20 inclusive, and therefore names those Respondents by such ?ctitious names. Petitioners will amend this veri?ed complaint to allege their true names and capacities when they 3 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF become known. Petitioners are informed and believe, and on that basis allege, that each of the ?ctitiously named Respondents sued herein are responsible in some manner for the occurrences and actions alleged herein. JURISDICTION AND VENUE 7. This Court has jurisdiction over this action pursuant to California Code of Civil Procedure section 1085 and Article VI, section 10 of the California Constitution. 8. Venue is proper in this Court because Respondents are located within Sacramento County, the records in question are situated in Sacramento County, and the acts that are the subject of this action have occurred or will occur in Sacramento County. See Cal. Code of Civil Procedure 393-394; Cal. Gov?t Code 6259. FACTUAL BACKGROUND 9. Kevin M. Johnson is the Mayor of the City of Sacramento, California. He was first elected in 2008 and reelected in 2012. 10. On May 30, 2013, Mayor Johnson was unanimously elected President of the NCBM. Shortly after taking that position, an internal audit ordered by President Johnson revealed that the forty?year-old organization had lost its 501(c)(3) tax status and had signi?cant debt. Following the internal audit, the organization?s executive director was terminated. That controversy spawned extensive litigation in the Superior Court of Fulton County, Georgia where certain former executives challenged the validity of Mayor ohnson?s election as President of the NCBM and his subsequent actions as NCBM President. 11. On May 30 and 31, 2013, President Johnson and the NCBM engaged Ballard Spahr LLP to provide legal representation relating to the internal investigation and related litigation. On March 27, 2014, following protracted litigation, the Superior Court in Georgia found that Mayor Johnson had been validly elected as President of the NCBM and had properly acted in that capacity. See Order dated May 27, 2014, Ex. A hereto. 12. On April 30, 2014, the NCBM ?led for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Northern District of Georgia, and Trustee Palmer was appointed as Chapter 7 trustee. A group of NCBM mayors also contested the bankruptcy action. Ballard 4 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF Spahr LLP has represented former President Johnson during the bankruptcy and continues to represent the NCBM and President Johnson in post-bankruptcy litigation in the Georgia Superior Court. 13. During the course of Ballard Spahr continued representation of the NCBM and President Johnson from May 2013 through the present -- hundreds of e-mails, correspondence, communications, records and other materials subject to and protected by the attorney?client and work product privileges have been created and exchanged between Ballard Spahr LLP, Trustee Palmer, and President Johnson and his agents and, in addition, among President Johnson and his agents, all on behalf of the NCBM and President Johnson. These privileged e?mails, correspondence, communications, records and other materials are collectively referred to herein as the ?Privileged Communications.? 14. On or about June 12, 2015 the Sacramento Bee and the SNR ?led with the City expansive requests for public documents pursuant to the CPRA, Gov. Code 6250 et seq, requesting the disclosure of all e-mails sent on Mayor ohnson?s e-mail accounts, ?nancial records, and any other correspondence or records that reference or relate to Mayor Johnson and the NCBM. Hundreds of the e-mails, communications, records, and other documents that would be responsive to the record requests include the Privileged Communications. 15. On June 25, 2015, Trustee Palmer who controls the attorney/client privilege for the NCBM directed his attorneys, Ballard Spahr LLP, ?to assert the attorney client privilege as to any privileged documents/communications in connection with the CPRA requests submitted by the Sacramento Bee and the Sacramento News and Review to the City of Sacramento.? See E-mail dated June 25, 2015 hereto. President Johnson has asserted the privilege on his own behalf with respect to the Privileged Communications. 16. Based on the fact that the Privileged Communications were subject to its CPRA request, on June 25, 2015, the Sacramento Bee agreed to modify its document requests to exclude the Privileged Communications. See E?rnail dated June 25, 2015, Egg; hereto. 17. The SNR, however, has stubbornly refused to modify its CPRA request to exclude the Privileged Communications and has not withdrawn its demand that the City turn over all 5 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF DONG such Privileged Communications. The SNR has refused to withdraw these demands even after being informed that Petitioners would file this Petition for Writ of Mandate and an ex parte application seeking an injunction preventing disclosure of such privileged communications. See E-rnail dated June 30, 2015, hereto. 18. The City Attorney?s Office has taken the position and informed Petitioners that the City ?has no authority to assert the attorney-client privilege on behalf of outside counsel? and that it will release the Privileged Communications to SNR commencing on July 6, 2014 ?absent a court order stating otherwise.? See E-mail dated June 17, 2015, hereto. FIRST CAUSE OF ACTION (For Writ of Mandate, Cal. Code Civ. Proc. 1085) 19. Petitioners hereby incorporate by reference all of the foregoing allegations as if set forth in full herein. 20. Petitioners have a legally protected right to prevent disclosure to third parties of all privileged attorney?client communications and work product between them and their agents, and their counsel Ballard Spahr LLP. 21. public record request seeks disclosure of e-mails sent on Mayor ohnson?s e-mail accounts which include hundreds of e?mails that are protected from disclosure by the attorney?client and work product privileges. Trustee Palmer, who controls the attorney/client privilege (both pre-petition and post?petition) for the NCBM has asserted the privilege with respect to the Privileged Communications. President Johnson has asserted the privilege on his own behalf with respect to the Privileged, Communications. 22. The City is not permitted to disclose the Privileged Communications in response to record requests because they are privileged attorney-client communications and work product which are exempt from disclosure under the CPRA. See Cal. Gov. Code 6254(k) (records exempt from disclosure include ?[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege?); see also Evid. Code 912, 950 et seq. (establishing the lawyer?client privilege). Yet, the City has informed Respondents that it will disclose the 6 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF Privileged Communications to SNR commencing on July 6, 2015 ?absent a court order stating otherwise.? 23. The City has a duty to follow the CPRA, and Petitioners have a bene?cial interest in the City?s compliance with its duties under the CRPA. 24. Disclosure of the Privileged Communications to SNR or any other person would violate the CPRA and cause Petitioners great and irreparable harm. 25. Petitioners have no plain, speedy and adequate remedy at law to prevent the City from disclosing the Privileged Communications to SNR other than the issuance of a peremptory writ of mandate ordering the City and its of?cers, agents and employees, including the City Attorney?s Of?ce, not to disclose the Privileged Communications to SNR or any other person. 26. A petition for a writ of mandate is the appropriate procedure to obtain an order preventing a public agency, like the City, from acting in an unlawful manner by releasing information the disclosure of which is prohibited by the CPRA. Marken 12. Santa Monica-Malibu Uni?ed School Dist, (2012) 202 Cal.App.4th 1250, 1266-67. WHEREFORE, Petitioners seek the relief requested below. SECOND CAUSE OF ACTION (For Injunctive Relief, Cal. Civ. Proc. 526) 27. Petitioners hereby incorporate by reference all of the foregoing allegations as if set forth in full herein. 28. Petitioners have a legally protected right to prevent the City from disclosing the Privileged Communications to third parties, including SNR. 29. Petitioners have repeatedly requested that the City not disclose the Privileged Communications, but the SNR has refused to modify its CPRA request to exclude those Privileged Communications, and the City has informed Petitioners that it intends to release the Privileged Communications to SNR commencing on July 6, 2015 ?absent a court order stating otherwise.? 30. The City?s intended disclosure of the Privileged Communications will cause great and irreparable harm to Petitioners, in that the disclosure will violate Petitioners? legally 7 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF protected rights to prevent disclosure of privileged attorney-client communications and work product to third persons and will violate the CPRA, Cal. Gov. Code 6254(k). 3 l. Petitioners would have no adequate remedy at law to compensate them for the immense injuries they will suffer if the Privileged Communications are disclosed. Pecuniary compensation would not afford adequate relief, and it would be impossible for Petitioners to ascertain the amount of compensation that would afford adequate relief if the City is not enjoined from disclosing the Privileged Communications. 32. Enjoining the City from releasing the Privileged Communications would maintain the status quo pending ?nal decision on this Veri?ed Petition for Peremptory Writ of Mandate. 33. WHEREFORE, Petitioners seek the relief requested below. PRAYER FOR RELIEF WHEREFORE, Petitioner prays as follows: 1. For a peremptory writ of mandate commanding the City of Sacramento, its of?cers, agents and employees and all other persons acting on the City?s behalf, including the City Attorney?s Of?ce, with respect to records otherwise discoverable pursuant to a request made by the Sacramento News Review under the California Public Records Act (the ?City Records?), not to release or disclose to the Sacramento News Review or to any other person or entity any e-mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney?client and work product privileges and which have been sent or received by: the National Conference of Black Mayors (ii) the of?ce of Sacramento Mayor Kevin M. Johnson acting in his of?cial capacity as the. former President of the NCBM (?President Johnson?); Edwin K. Palmer, in his of?cial capacity as Chapter 7 Trustee for the NCBM (?Trustee Palmer?); and (iv) Ballard Spahr LLP, acting in its capacity as counsel for the NCBM, President Johnson, and/or Trustee Palmer (the ?Privileged Communications?). 2. For a Temporary Restraining Order and Preliminary Injunction enjoining the City of Sacramento, its of?cers, agents and employees and all other persons acting on the City?s behalf, including the City Attorney?s Of?ce, from releasing or otherwise disclosing any of the Privileged Communications to the Sacramento News Review or any other person or 8 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND RELIEF entity making a similar public records request under the CPRA, during the pendency of this action and until the Court has entered a ?nal judgment on Petitioners? Veri?ed Petition for Peremptory Writ of Mandate. 3. For such other and further relief as the Court deems just and proper. Respectfully submitted, DATED: July I, 2015 9 BALLARD SPAHR LLP BY: lq' Peter L. Haviland Scott S. Humphreys Attorneys for Petitioners VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INIUNCTIVE RELIEF VERIFICATION 1, David H. Pittinsky, am a partner in the Philadelphia of?ce of the law ?rm Ballard Spahr LLP, litigation counsel for Respondents, and an active member of the State Bar of California in good standing. I have read the foregoing VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATB AND INIUNCTIVE RELIEF and hereby verify that the facts alleged therein are true and correct based on my own personal knowledge of those facts. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 30, 2015 in Philadelphia, David H. Pittinsky 10 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND INJUNCTIVE RELIEF EXHIBIT A a 0 MAR 27 20M IN THE SUPERIOR COURT OF FULTON COUNTV ATLANTA CIRCUIT DEPUTY CLERK "sweeten COURT STATE OF GEORGIA FULTON COUNTY, GA NATIONAL CONFERENCE OF BLACK MAYORS, INC, PRESIDENT MAYOR KEVIN JOHNSON, CIVIL ACTION FILE NO. 2013CV232783 NATIONAL CONFERENCE OF BLACK MAYORS, INC, SPECIAL TASK JUDGE BRASHER FORCE OF THE BOARD OF DIRECT and MAYOR PATRICK GREEN, as a member of the National Conference of Black Mayors, Inc. Plaintiffs, v. VANESSA R. SUE ROBERT and JOHN and JANE DOES 1&0, Defendants. ORDER The above-styled case comes before the Court for ruling after a hearing on the foliowing: 1. the parties? Cross?Motions for Injunction (consolidated with a heating on the merits after to notice to the parties pursuant to OCGA 2. Count of the Complaint: Declaratory Judgment; the I?laintiffs? Second Motion for Preliminary and Permanent Injunction, ?led DJ July 16, 2013; 4. the Defendants? Motion for Inter-locutory Injunction, ?led August 8, 2013; and Order on Injunction Counts Fulton County Superior Court Page 1 5. any other claims that ask the Court to determine who is the properly elected President of the NCBM. The parties have now ?led their post?hearing briefs, replies, and responses, and same have been considered by the Court. Upon doing so, the Court hereby RULES as set out herein. Relevant Overview The National Conference of Black Mayors, Inc. (the is an organization of mayors from across the country, Mayor Kevin Johnson, one of the Plaintiffs, contends that he is the President of the NCBM, and that Mayor Patrick Green is the 'I?reasurer, both having been unanimously elected by oral vote at the May 30, 2013 Annual Meeting of the membership. Defendant Mayor Bowser, the previous President, contends that Mayors Johnson and Green were notvalidly elected at the May 30, 2013 Annual Meeting, Such that he and his Treasurer remained in office. Prior to the May 2013 Meeting, Mayor Johnson felt that the NCBM was being ?scally mismanaged. So, immediately upon his purported election, Mayor Johnson convened a meeting of the NCBM Board to which the entire membership was invited. At that Board meeting Mayor Johnson formed a Special Task Force to audit the records of the NCBM. This audit would, by necessity, focus in large part on the activities prior President, Defendant Mayor Robert Bowser, and Co~Defendant Executive Director Vanessa Williams. According to the Plaintiffs, shortly after the formation of the Special Task Force Mayor Bowse'r told the Board and others to disregard Mayor JohnsOn?s election, and to not cooperate with the Special Task Force. On July 12, 2013, acting through Mayor Bowser as purported Order on Injunction Counts Fulton County Superior Court 2013CV232781 Page 2 President, the Board called a special meeting at which it purported to decertify Mayor Johnson?s election as President and to dissolve the Special Task Force. Mayors Johnson and Bowser actively interfered with the NCBM?related actions of the other beginning in July 2013. The injunctive requests in this case all seek basically the same thing: determination of whether Mayor Johnson pr0perly became President of the NCBM on May 30, 2013. if not, the Defendants ask that Mayor Johnson be enjoined from continuing to act as if he is, and that the Special Task Force he enjoined from continuing to audit the books and records of the CBM. If so, the Plaintiffs ask that Mayor ohnson?s actions since May 2013 be validated, including the actions oi?the Special"? ask Force. In 2013 Mayor Bowser lost his bid for reelection as Mayor of his home city. Therefore, as of January 1, 2014, Mayor Bowser was longer eligible for membership in the CBM, and he could not contest the Presidency of that organization for himself. Defense counsel thus concedes that as of January 1, 2014 Mayor Johnson became President.1 As of January 15-, 2014 the Defendants have ceased arguing over who became President- in 2013, and now contend that the entire argument is moot.2 Though there are other claims pending in this lawsuit, in late 2013 this Court accelerated the determination of the Presidency of the NCBM so as to 1) allow the organization to resolve any contractual or other issues between it and outside parties, and 2) settle any lingering, doubts regarding the leadership which may be held by its members. Mayor Johnson was the First Vice President of?the NCBM prior to the May 30, 2013 election. There-fore, pursuant. to Section 5.5 of both the 20.10 and the 2003 Bylaws, Mayor Johnson ascended to the Presidency. 2 Unlike her attorney, Williams is allegedly claiming that Mayor Michael Blunt is new President ofthe'NCBM. The Court does not know who Mayor Michael Blunt is, except that the Court was noti?ed of Executive Director Williams? claim from Plaintiffs counsel, which noti?cation was ?led into the record. Neither party has provided Order on Injunction Counts Fulton {Jaunty Superior Court Page 3 Mootness After the evidentiary hearing on this issue, the Court requested closing arguments in the form of briefs. The-Defendants had argued the merits at the hearing, but in their closing argument the Defendants did not argue the factual issues. Instead, they asked the Court to ?nd the question of who is President moot in light of the failure of Mayor Bowser to win'reelection as Mayor of his home city in 2013. (FN 1, in?n). The Defendants ask the Court to instead: 1. appoint a special master to review and approve the bona?des o'i?each and every person who is alleged by either side in this dispute to be a Board member; order a meeting of the Board approved by the special master> and establish agenda items speci?cally geared to resolve the current long-running dispute; and 3. require the special master to attend the Board meeting to ensure the agenda is followed, and that the Board members are granted the right to fully participate and exercise their duties pursuant to Title of the Georgia Code to make certain appropriate and binding determinations regarding the future of the NCBM. The Plaintiffs express outrage that the. Defendants would only now disclose that Mayor Bowser is not eligible to be President of the NCBM. They also strenuoust argue that the question of who was elected President in 2013 is not meet After all, if it is determined that Mayor Johnson was properly elected President in May 2013, then Mayor Bowser did not have the authority to call the special Board meeting in July 2013, at which the Board allegedly the May 2013 election and dismantled the Special Task Force, because Mayor B-owser was not the President. The Plaintiffs are also concerned about the costs of a special master. They contendthat the NCBM, already troubled financialiy, simply cannot afford to pay a special master when the Court can make this determination itself. Order on Injunction Counts Fulton County Superior Court 2013CV232781 Page 4. First, the Court notes the Plaintiffs? outrage at the Defendants? current ?admission? that Mayor Bowser did not win reelectionto his home city. But as the Plaintiffs themselves. included this information in their Verified Complaint at paragraph 63, the Court has always taken this fact into consideration when ruling on this case. This was not a late?game disclosure by the Defendants. So saying, the Court ?nds the issue is not moot. case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights, and that mootness is a mandatory ground for dismissal.? Collins 12. Lombard Corp, 270 Ga. 120, 121, 508 653, 654 (I 998). in this case, the pleadings indicate that the NCBM entered into contracts in 2013. The other parties to these contracts deserve some form of clarity from the Additionally, an auditor is combing through the books of the NCBM as part of an audit. 'l?herefore, resolution of the question of who was President of the NCBM from May of 2013 until January 1, 2014 is not ?an abstract question not arising 'upOn existing facts or- rights.? Id. Instead, it is a determination requested by the parties (now, only by the Plaintiffs) for legitimate, current reasons. Was Mayor Johnson Properly Elected President in May 2013.? The Plaintiffs set out a helpful outline in their closing argument brief, which this Court will follow: 1. Was Mayor ohnson validly elected at the May 30, 2013 meeting? 2, Are the 2003 Bylaws the current Bylaws? 3. If Mayor Johnson was validly elected President in May 2013, did he call a valid meeting ofthe NCBM Board for May 31, 2013? . awn-"M; ?Warm . -7. Order on Injunction Counts Fulton County Superior Court 2013CV2327BI Page 5 4. If Mayor Johnson was validly elected President in May 2013, and if the 2003 Bylaws are the current Bylaws, did Mayor Bowser and Williams properly calla special meeting of the NCBM Board on July 12, 2013? Was Mayor Johnson. l/alz?div elected at the May 30. 20.13 Meeting? The record shows that Mayor Johnson was both nominated by the Committee on Nominations, and from the floor by an eligible member. No other nominations were made. Though it is possible that ineligible members voted, a suf?cient number of eligible members also voted in an oral vote presided over by the Chair of the Nominating Committee. Mayor Boarser could have required that the vote be cast by secret ballot, but. he did not. In the end, Mayor Johnson was unanimously elected President of the NCBM. The Bylaws of the NCBM require that votes for of?cer elections be cast in secret. The Bylaws also require an election supervisor. Since this was an oral vote, and because there Was no election supervisor per se, the Defendants contend that Mayor Johnson was not validly elected. ?The bylaws of a corporation constitute permanent rules governing its management, and as such. are binding upon the stockholders. [Cit] Further, the bylaws of a corporation are binding on the parties who enact them as contracts, and must be construed according to the principles of the law ofco-ntracts.? v. Tl'ztma?erbird Motor Howls. Inc, 216 Ga. 652, 65 8, 119 14, 1.8 1961). A party can acquiesce by conduct to the waiver of a requirement in the bylaws. St. Mary?s Hosp. ofxithens, Inc. v. Cohen, 216 Ga. App. 761., 762, 456 79, 80 (1995). See also, RHL Properties, LLC v. Neese, 2.93 Ga. App. 838, 841, 668 828, 830 (2008) (waiver of a contractual term by conduct is possible even when the Statute of Frauds would otherwise require all material terms to be in writing). I ?nun-i ., Order on injunction Counts Falter: County Superior Court 201.3(211232781 Page 6 Through his actions, Mayor Boo/Sci", indeed the entire electorate, waived compliance with the Bylaws? requirement that a secret ballot he held to elect the new President, and that an election supervisor handle the election. Mathews v. Fort Valley Cation Mills, 179 Ga. 580, 176' SE 505, 510 (1934) (?Stoeldiolders in a corporation who participate in the performance of an act, or acquiesce in and ratify the same, are estepped to complain thereof in equity?). The Court ?nds that Mayor Johnson was validly elected as President of the NCBM on May30,2013. Are the 2003 Bylaws the current Bylaws? Throughout most of this litigation both. parties have referred to the 2003 Bylaws as the official Bylaws of the NCBM. .I-iowever, at the hearing on the instant Motions, the Defendants submitted a set of Bylaws which they contended were enacted by the Board in 2010. Pursuant to the 2003 Bylaws, the Board does not have the power to remove an of?cer of the organization. Under the 2010 Bylaws, the Board does have the power to remove? an of?cer. The Defendants would have the Court find that the 2010 Bylaws are the of?cial and current Bylaws of the NCBM. The record shows that the Court accelerated the hearing on this issue with the trial on the merits. As the determinations to be made at the hearing sound in equity and are being tried to the beach, Court is the trier of fact. he burden is preponderance of the evidence. OCGA 24?14?3. The Court has considered the testimony from the Defendants concerning thehenactment of the 2010 Bylaws. Of particular interest are the minutes. of the meeting at which the 2010 Bylaws were supposedly enacted. The minutes contain no speci?city or other inclici'a of reliability. OrderenlMunc?onCounm Fulton County Superior Court 2013CV232781 Page 7 Additionally, the Defendants have relied for the majority of this case on the 2003 Bylaws. Indeed, they have affirmatively stated that the 2003 Bylaws, not the 2010 Bylaws, govern the NCBM. For the Defendants to now claim that the 2010 BylaWs govern the NCBM is simply not credible. Having considered the facts and weighed. the evidence, the Court ?nds that the 2.0.03 Bylaws govern the NCBM, and that they are the current Bylaws for the organization. IfMayor Johnson was validly elected President in May 2013, didhe call a valid meeting ofrhe NCBM Board for Mav 31, 2013? The Court has reviewed the 2003 Bylaws ?for "the proper procedure in calling a meeting. Because Mayor Johnson was the validly elected President of the NCBM as of May 30, 2013, and because Mayor Johnson called the meeting pursuant to the procedures set out in the 2003 Bylaws, he called a valid meeting of the NCBM Board for May 31, 2013. JfMayor Johnson was valide elected President in May 2013. and iffth 2 003 are the current Bylaws, did Mayor Bowser and Williams properly call a special meeting of the on Julv 12. .2013? Because Mayor Johnson was President of the NCBM in July 2013, Mayor Bowser was without authority to call a meeting of the NCBM Board on July 12, 2013 without. Mayor Johnson?s consent. Therefore, the July 12, 2013 Board meeting was invalid, and any actions taken by the Board at that meeting are a nullity. In this regard, the Court speci?cally ?nds that there exists no inconsistency between the 2003 Bylaws and OCGA Order an injunction Counts Fulton County Superior Court 201301232731 Page 8 The Court speci?cally declines to address the question of who are quali?ed members of the NCBM Board. This is an issue which the NCBM can for itself. Any issues not ruled on by this Order are moot by virtue of the Court?s rulings herein. "?sz This day of [Vitamin 20/ KM The Hanorablc Chris?gper S. Brasher Fulton County Superi ourt Atlanta Judicial Circuit cc: Ethan Cohen, Esq, Byung Jin Pak, Esq. Ballard Spahr, LLP VIA EMAIL cohcnc@ballardspahrcom VIA EMAIL, Robert Arrington, Esq. Law Of?ce ofArrin?gtc-m, Od?uola-Owoo Mason, PC- VIA EMAIL David H. Pittinsky, Esq. Ballard Spahr, LLP VIA. EMAIL Order on Injunction Counts Fulton County Superior Court 201301232781 Page 9 EXHIBIT Pittinsky, David (Phila) From: Russell Patterson Sent: Thursday, June 25, 2015 9:47 AM To: Pittinsky, David (Phila) Cc: Eddie Palmer Subject: NCBM Case No. 14-58464-MHM Jointly administered David: As you know my firm and your firm serve as counsel to the Chapter 7 Trustee, Edwin K. Palmer, in the above? referenced consolidated cases. Mr. Palmer has served as trustee since the filing date 4-30-2014 As trustee, Mr. Palmer controls the attorney/client privilege both pre-petition and post-petition for the Chapter 7 debtors. Mr. Palmer, and only Mr. Palmer, may assert and/or waive the privilege. Mr. Palmer has directed us to assert the attorney client privilege as to any privileged documents/communications in connection with the CPRA requests submitted by the Sacramento Bee and the Sacramento News and Review to the City of Sacramento. if you have any questions, or if there are any issues, feel free to contact me at 404-588-0500. Of course, you may also talk directly with Mr. Palmer. Sincerely, Russell Patterson EXHIBIT Pittinsky, David (Phila) From: Lang, Marissa Sent: Thursday, June 25, 2015 1:49 PM To: Pittinsky, David (Phila) Subject: Attorney-client privilege Hi David, I spoke With my editors and our legal counsel and we?ve decided that any emails independently found by the city attorney to fall under attorney?client privilege can be omitted from our PRA request. Let me know if there's anything else you need from my end. Thanks, Marissa Marissa Lang The Sacramento Bee Desk: (916) 321-1038 Fax: (916) 321?1109 Email: mlang@sacbee.com Twitter: @Marissa Jae EXHIBIT Humphreys, Scott 5. (LA) From: Humphreys, Scott S. (LA) Sent: Tuesday, June 30, 2015 5:15 PM To: 'cosmog@newsreview.com' Cc: Pittinsky, David (Phila); Haviland, Peter L. (LA) Subject: Notice of Petition for Writ of Mandate and Ex Parte Application Mr. Garvin: This email follows prior requests, made by my colleague at Ballard Spahr LLP, David Pittinsky, Esq., that you respond no later than close of business on Monday, June 29, 2015 to our request that the Sacramento News Review follow the Sacramento Bee's lead and honor our clients? attorney-client and work product privileges in regards to your public record requests to the City of Sacramento. You stated that you needed to discuss this matter with your editor and SNR's attorney. We have not received any response from you. As a result, please take notice that on Wednesday, July 1, 2015, we will be filing with the Superior Court of California, County of Sacramento ("Sacramento Superior Court") a Verified Petition for Peremptory Writ of Mandate ("Verified Petition") seeking an order prohibiting the City of Sacramento and the Sacramento City Attorney?s Office (collectively, the "City") from providing any privileged materials to SNR or any other person or entity in response to SN R's record requests. We will also appear on Thursday, July 2,2014 at 8:30 am, or as soon thereafter as we may be heard, in the Sacramento Superior Court, located at 720 Ninth Street, Sacramento, California 95814, to present an ex parte application seeking the following relief: 1. A Temporary Restraining Order preventing the City from releasing or disclosing to SNR or to any other person or entity any e-mails, correspondence, communications, records, or any other materials of any kind that are protected from disclosure by the attorney-client and work product privileges and which have been sent or received by: the National Conference of Black Mayors (ii) the office of Sacramento Mayor Kevin M. Johnson acting in his official capacity as the former President ofthe NCBM ("PresidentJohnson"); Edwin K. Palmer, in his official capacity as Chapter 7 Trustee for the NCBM ("Trustee Palmer?); and (iv) Ballard Spahr LLP, acting in its capacity as counsel for the NCBM, President Johnson, and/or Trustee Palmer (the "Privileged Communications?); and 2. An Order to Show Cause why a Preliminary Injunction should not be granted enjoining the City from disclosing the Privileged Communications to SNR or any other person or entity until this Court has ruled on the Verified Petition. Please advise whether you intend to oppose this ex parte application. Thank you, Scott S. Humphreys Ballard Spahr LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 424.204.4333 humphreyss@ballardspahr.com. EXHIBIT Pittinsky, David (Phila) From: Michael Benner Sent: Wednesday, June 17, 2015 6:14 PM To: Pittinsky, David (Phila) Cc: Jeffrey Massey; Gustavo Martinez; Jerry Hicks Subject: RE: Sacramento Bee David: We actually have two Public Record Act requests floating around our office right now where there are communications between your firm and the Mayor?s office. Marissa Lang (SacBee): From 2008~Present: - All city email and all gmail with OMKJ in name regarding/referring to the National Conference of Black Mayors or NCBM All financial records - including travel records, bills, dues, all payments, or monies received from/rega rding/referring to the National Conference of Black Mayors or NCMB Any other correspondence/records relating to National Conference of Black Mayors or NCBM. Cosmo Garvin (Sac News and Review) regarding accounts. - 1. All emails sent on omkj email accounts going back two years (March 12, 2013 through March 12, 2015) 2. All emails sent on omkj email accounts related to education and schools regardless of the date range. Like I have said previously, the City?s stance is that it has no authority to assert the attorney-client privilege on behalf of outside council. At this point, we have no choice but to release these emails absent a court order stating otherwise. Since rely, Michael J. Benner, Senior Deputy City Attorney Sacramento City Attorney's Office 915 St, Fourth Floor Sacramento, CA 95814 Phone: (916) 80843346 Fax: (916) 808-7455 email: mbenner@cityofsacramento.orgr This email contains material that is confidential and/or privileged under the work product doctrine, and attorney-client or official information privileges, 1for the sole use of the intended recipient. Any reliance on or review ofthis email by anyone other than the intended recipient, or any distribution orforwarding of this emaii, without express written permission of the City Attorney is strictly prohibited. if you are not the intended recipient, please contact the sender by reply email, and destroy all copies of the original message. From: Pittinsky, David (Phila) Sent: Wednesday, June 17, 2015 2:59 PM 3'43: Michael Benner Subject: Sacramento Bee Michael: As we discussed, please send me the records request from the Sacramento Bee. Thanks. David H. Pittinsky, Esquire Ballard Spahr LLP 1735 Market Street 51st Floor Philadelphia, PA 19103 215.864.8117 215.864.8999 (Fax) Li?ctinskajlballardspahr?com 1 2 3 4 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 NATIONAL CONFERENCE OF BLACK MAYORS, a Georgia not-for-profit corporation; 11 SACRAMENTO MAYOR KEVIN M. JOHNSON, in his official capacity as the former 12 President of the National Conference of Black Mayors; and EDWIN K. PALMER, in 13 his official capacity as Chapter 7 Trustee for the National Conference of Black Mayors, 14 Petitioners, 15 v. 16 CITY OF SACRAMENTO; 17 SACRAMENTO CITY ATTORNEY’S OFFICE; CHICO COMMUNITY PUBLISHING, INC. 18 a/k/a SACRAMENTO NEWS & REVIEW, a California corporation; and DOES 1 through 20 19 inclusive. 20 Case No. _________________ [PROPOSED] PEREMPTORY WRIT OF MANDATE Respondents. 21 22 23 24 25 26 27 28 1 [PROPOSED] PEREMPTORY WRIT OF MANDATE 1 This matter is before the Court on Petitioners’ Verified Petition for Peremptory Writ 2 of Mandate filed on July 1, 2015 (the “Petition”). The Court, having fully considered the 3 Petition and all papers, evidence, and argument presented by counsel in connection therewith, 4 and being otherwise fully advised in the premises, hereby enters this Peremptory Writ of 5 Mandate and ORDERS as follows: 6 1. The City of Sacramento and its officers, agents, employees and all other persons 7 acting on its behalf, including the City Attorney’s Office (collectively, the “City”), are hereby 8 commanded, with respect to records otherwise discoverable pursuant to a request made by the 9 Sacramento News & Review under the California Public Records Act (the “City Records”), 10 not to release or disclose to the Sacramento News & Review or to any other person or entity any 11 e-mails, correspondence, communications, records, or any other materials of any kind that are 12 protected from disclosure by the attorney-client and work product privileges and which have 13 been sent or received by: (i) the National Conference of Black Mayors (“NCBM”); (ii) the office 14 of Sacramento Mayor Kevin M. Johnson acting in his official capacity as the former President of 15 the NCBM (“President Johnson”); (iii) Edwin K. Palmer, in his official capacity as Chapter 7 16 Trustee for the NCBM (“Trustee Palmer”); and (iv) Ballard Spahr LLP, acting in its capacity as 17 counsel for the NCBM, President Johnson, and/or Trustee Palmer (the “Privileged 18 Communications”). 19 2. Prior to the release or disclosure of any City Records, the City shall make 20 available, on a confidential basis, all such City Records to Ballard Spahr LLP, who shall be 21 permitted to present its views to the City concerning such City Records so that no Privileged 22 Communications are inadvertently disclosed. 23 24 IT IS SO ORDERED 25 DATED: _____________ BY: _____________________________ Hon. Superior Court Judge 26 27 28 2 [PROPOSED] PEREMPTORY WRIT OF MANDATE