1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP JAMES M. CHADWICK, Cal. Bar No.

157114 2 MARGARET PAK, Cal Bar No. 245994 Four Embarcadero Center, 17th Floor 3 San Francisco, California 94111-4109 Telephone: 415-434-9100 4 Facsimile: 415-434-3947 5 Attorney for Petitioner STEPHEN JAMES 6 7 8 9 10 11 STEPHEN JAMES, 12 13 v. Petitioner, Case No. VERIFIED PETITION FOR WRIT OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA

14 CALIFORNIA STATE CONTROLLER, 15 16 17 18 Respondent.

COMES NOW PETITIONER Stephen James and declares as follows: 1. This petition is brought pursuant to the California Public Records Act

19 and Section 3 Article I of the California Constitution, for a Writ of Mandate to compel the 20 California State Controller ("CSC") to comply with his legal duty to release public records 21 that will aid members of the public in understanding the process by which CSC acquires 22 and sells unclaimed property a topic of vital public concern, and one that has been the 23 subject of intense public interest following opinions by the Federal Court of Appeals 24 calling into doubt the constitutionality of CSC's unclaimed property procedures, and a 25 subsequent preliminary injunction against CSC by U.S. District Court for the Eastern 26 District of California. 27 2. Petitioner Stephen James ("James") is a freelance journalist who

28 writes for various publications in California. -1W02-WEST:5JMC1\400347560.2

VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

3.

The California State Controller ("CSC") is a California state agency

2 as defined by Government Code 6252(f). 3 4. On September 5, 2006, in connection with his investigation for an

4 article about the legality of CSC's methods of acquiring and selling unclaimed property, 5 James requested, pursuant to the California Public Records Act (Gov't Code section 6250, 6 et seq.) and the California Constitution (Art. I, sec. 3(b)), that CSC provide him with: (1)A 7 list of all unclaimed property auctioned by CSC, its auditors or agents in 2005 and 2006; 8 (2) all policies and procedures that apply to the acquisition of unclaimed property by the 9 state controller's office, its auditors or agents; (3) the contracts and agreements between the 10 state controller's office and the auditors or agents it uses to acquire unclaimed property (the 11 September 5 Public Records Act Request). A true and correct copy of the September 5 12 Public Records Act Request is attached hereto as Exhibit A. 13 5. On September 22, 2006, James emailed a copy of the September 5

14 Public Records Act Request to CSC communications director Russ Lopez, noting that "the 15 request is now due and I would like to pick it up as soon as possible." James offered to 16 personally pick up the documents, rather than wait to receive them in the mail. A true and 17 correct copy of James's September 22 email to Lopez is attached hereto as Exhibit C. 18 6. On September 29, 2006, nineteen business days after James's request

19 and nine days past the 10-day deadline for response provided for in Government Code 20 section 6253(c), CSC responded, but it provided records responsive to only two of James's 21 three requests. CSC did not provide documents responsive to James' request for a list of all 22 unclaimed property auctioned by CSC. In a letter signed by CSC chief counsel Richard J. 23 Chivaro ("Chivaro"), CSC promised that "any information responsive to this request will 24 be forwarded as soon as it is available." CSC provided no justification for the delay. 25 Chivaro further pledged to "reply with any additional information by no later than October 26 6, 2006." CSC did provide a copy of the agency's contract with Allied Computer Services, 27 Inc. A true and correct copy of the CSC letter of September 29, 2006 is attached hereto as 28
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VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

1 Exhibit D. A true and correct copy of the record provided by the CSC, the contract with 2 Allied Computer Services, Inc., is attached hereto as Exhibit E. 3 7. On October 19, 2006, the Sacramento News & Review published an

4 article by James about CSC's unclaimed property program. A true and correct copy of the 5 article is attached hereto as Exhibit F. 6 8. On October 26, 2006, having received no further reply, James emailed

7 Chivaro to ask about the status of his request. James reminded Chivaro that Chivaro had 8 promised to respond on October 6, and attached a copy of the original September 5 Public 9 Records Act Request. A true and correct copy of James's October 26, 2006 email is 10 attached hereto as Exhibit G. 11 9. On November 7, 2006, James sent a letter by fax and by email to

12 then-Controller Steve Westly, noting that Chivaro had promised to provide more 13 information by October 6, nearly a month earlier, but that he had received no further 14 information. James informed Westly that CSC "has essentially ignored the statutory time 15 frames specified by the California Public Records Act." A true and correct copy of James's 16 November 7, 2006, fax to Westly is attached hereto as Exhibit I; a true and correct copy of 17 James's November 7, 2006, email to Westly is attached hereto as Exhibit H. 18 10. On November 7, 2006, in furtherance of his continuing investigation

19 into CSC's unclaimed property program, James submitted to CSC another request pursuant 20 to the California Public Records Act and the California Constitution (the November 7 21 Public Records Act Request). He requested a list of all performance or other audits of 22 CSC or its divisions or bureaus conducted by KPMG, an accounting and auditing firm, 23 since 1994, including the date on which each audit was conducted and the cost of the audit 24 to California taxpayers. A true and correct copy of James's November 7 Public Records 25 Act Request is attached hereto as Exhibit I. 26 11. On January 31, 2007, following a public appearance by Controller

27 John Chiang ("Chiang") at the Sheraton Grand in Sacramento, James approached Chiang 28 and told him that he, James, had submitted two Public Records Act requests, now long -3W02-WEST:5JMC1\400347560.2

VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

1 overdue, to which CSC had not fully responded. James again approached Chiang on or 2 about May 7, 2007, following a presentation by Chiang to the Sacramento Press Club, and 3 reminded him of the long-overdue requests. On or about May 11, Deputy Controller 4 Hallye Jordan ("Jordan") sent an email to James, saying that the "Controller asked me to 5 follow up on a conversation you had with him earlier this week," and that the agency had 6 "no record" of any of James's outstanding requests. A true and correct copy of Jordan's 7 May 11 email is attached hereto as Exhibit J. 8 12. In response to Jordan's email, on or about May 14, James faxed a full

9 packet of information to Chiang, including all of his PRA requests and much of his 10 correspondence over the previous seven months, including his reminder to CSC officials 11 that they were long overdue in responding to his PRA requests, and his October 12 correspondence with Chivaro inquiring about the September 5 Public Records Act 13 Request. James provided the same information in an email on the same day to Jordan. True 14 and correct copies of the fax and email, along with their attachments, are attached hereto as 15 Exhibit K. 16 13. On May 21, 2007, Chivaro wrote in a letter to James that he would

17 provide a response to James's September 5, 2006 Public Records Act Request "on or 18 before June 1, 2007." As of the date of this petition, James still had not received a 19 response. 20 14. The May 21, 2007 letter to James from Chivaro fails to even

21 acknowledge James's November 7, 2006 Public Records Act Request for information 22 about KPMG audits of CSC. A true and correct copy of Chivaro's May 21, 2007 letter is 23 attached hereto as Exhibit L. 24 15. On June 1, 2007, in the case of Taylor v. Chiang, 2007 U.S. Dist.

25 LEXIS 43711, the U.S. District Court for the Eastern District of California issued a 26 preliminary injunction barring CSC from accepting, taking title to, possessing, selling, 27 converting to cash or destroying any property pursuant to the California Unclaimed 28 Property Law. The ruling came after the Ninth Circuit, in Taylor v. Westly, 2007 U.S. App. -4W02-WEST:5JMC1\400347560.2

VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

1 12528 (May 31, 2007), reversed the lower court's denial of a motion for preliminary 2 injunction, holding that a preliminary injunction was appropriate. The two rulings, along 3 with an earlier Ninth Circuit opinion, Suever v. Westly, 439 F.3d 1142 (2006), have 4 generated considerable attention in the news media, demonstrating the intense public 5 interest in the issue of the legality and constitutionality of CSC's procedures. Copies of 6 representative news articles and commentary from California news outlets between the 7 dates of May 2, 2007 and June 21, 2007 are attached hereto as Exhibit M. 8 16. CSC has not disclosed all of the information James sought in his

9 September 5, 2006 Public Records Act Request. In particular, CSC has failed to disclose 10 the list of unclaimed property auctioned by the CSC. CSC has never acknowledged or 11 responded in writing to James's November 7 Public Records Act Request, and has failed to 12 disclose the list of audits sought in that request. CSC has failed to provide any justification 13 whatsoever for withholding the information James requested. CSC has not provided any 14 written notice to James extending the time for its response to any of his requests and 15 setting forth the unusual circumstances justifying the extension. 16 17. The records sought by this petition are public records as defined in

17 Government Code section 6252(e), and are not exempt from disclosure under any 18 provision of law. 19 18. Government Code section 6255 requires the withholding agency to

20 justify withholding "by demonstrating that the record in question is exempt under express 21 provisions of this chapter." Government Code section 6253(b) requires that each state or 22 local agency, upon a request for a copy of records that reasonably describes an identifiable 23 record or records, shall make the records promptly available to any person . . . . 24 Government Code section 6253(c) requires that each agency . . . shall, within 10 days 25 from receipt of the request, determine whether the request, in whole or in part, seeks copies 26 of disclosable public records in the possession of the agency and shall promptly notify the 27 person making the request of the determination and the reasons therefor. Under 28 Government Code section 6253((c), the time for a response by be extended, for no more -5W02-WEST:5JMC1\400347560.2

VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

1 than 14 days, but only by written notice setting forth the reasons for the extension and the 2 date on which a determination is expected. 3 19. CSC's failure to respond to Jamess requests in a timely fashion, its

4 failure to provide written notice of and justification for any extension of the statutory 5 deadline for responses to requests under the Public Records Act, and its denial of access to 6 the records and information requested by James are willful violations of Government Code 7 sections 6253 and 6255. 8 20. CSC's denial of access to the records and information requested by

9 James is a willful violation of Article I, section 3(b) of the California Constitution, which 10 provides that: "The people have the right of access to information concerning the conduct 11 of the people's business, and, therefore, the meetings of public bodies and the writings of 12 public officials and agencies shall be open to public scrutiny." 13 21. Under Government Code section 6258 and Article I, section 3(b) of

14 the California Constitution, James is entitled to pursue his right of access to the records 15 sought herein by petitioning this Court for a writ of mandate to compel the CSC to make 16 those records public. 17 22. James is beneficially interested in the outcome of this action, and has

18 a clear, present and substantial right to the release of the records sought herein. James has 19 no plain, speedy, and adequate remedy other than the relief sought. No administrative or 20 appellate remedies exist. 21 23. Pursuant to Government Code section 6258, the times for responsive

22 pleadings and for hearings in actions such as this one shall be set with the object of 23 securing a decision at the earliest possible time. 24 24. Pursuant to Government Code section 6259(d), James is entitled to the

25 costs and attorney's fees incurred in pursuing this matter. 26 27 28

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WHEREFORE, Stephen James prays as follows:

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VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

a.

That in accordance with the California Constitution, the California

2 Public Records Act, and California law, the Court issue an alternative writ of mandate, 3 directing the CSC to provide James with the requested records forthwith, or show cause 4 before this Court at a time and date to be established by the Court why it should not do so; 5 b. That the Court determine that CSC's conduct was and is in violation

6 of applicable provisions of the Public Records Act, and issue a peremptory write of 7 mandate commanding the CDC to permit public access to and copying of the records and 8 information requested by James forthwith; 9 10 matter; and 11 d. For such other and further relief as the Court deems just and proper. c. That James be awarded his costs and attorneys' fees in pursuing this

12 Dated: ___, 2007 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

By JAMES M. CHADWICK Attorney for Petitioner STEPHEN JAMES

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VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT

1 2 3 1. 4 2.

VERIFICATION I, Stephen James, declare as follows: I am the Petitioner in the above-named action. I have read the foregoing VERIFIED PETITION FOR WRIT OF MANDATE

5 PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT and know the contents 6 thereof, and I certify that the same are true of my own knowledge. 7 8 Executed this _____ day of _____, 2007, at Sacramento, California. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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I declare under penalty of perjury that the foregoing is true and correct.

____________________ _______________________ STEPHEN JAMES

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VERIFIED PETITION FOR WRITE OF MANDATE PURSUANT TO THE CALIFORNIA CONSTITUTION AND THE CALIFORNIA PUBLIC RECORDS ACT