29 October 2008

KingCast Memorandum in Opposition to Respondents’ Motion to Dismiss part trois; McLeod and Kilpatrick, two peas in a pod.

Dear Representative McLeod: In case it was not already clear, I find you less than trustworthy in any measure and respectfully request per RSA 91-A that you forward me any and all emails to and from your private email account in which you discuss HB 1428 Bruce McKay highway with any non-family member constituents and other legislators.

Dear Senator Gallus, take a look at this, willya?

Just a couple of corrupt and deceitful, lying government employees sucking the lifeblood out of the American Democratic process. Carefully review the case law in the beginning of the comments section, where the State tried to slip totally irrelevant law involving an ecstasy drug dealer into play in this case, only to get confronted by the cold, hard facts.

As to that dirtbag Kilpatrick the AP story in today’s Boston Globe read in pertinent part:
“At a time when this city needed transparency, accountability and responsibility, you exhibited hubris and privilege at the expense of the city,”

-Wayne County Circuit Judge David Groner, sentencing Kwame Kilpatrick to four (4) months of hard time in jail.

Note that Kilpatrick’s emails and text messages provided the backdrop for his downfall, and they were indeed released, as noted in the Huffington Post http://tinyurl.com/56n83g and, well, everywhere…… contrary to the cited law of Respondents at p.11 of their Memorandum in Support of Dismissal.

That case law is not even on point, however. First of all, the general principle was to “treat every email as if it were subject to disclosure,” as noted by the NH School Board Association website. Moving on to an analysis of the case law, then:

United States v. Forrester, 512 F.3d 500 (9 Cir. 2008) involved reasonable expectation of privacy in emails. Respondent wrote: (“persons have a reasonable expectation of privacy in the content of their emails”) but that case found that a criminal defendant in a drug case (ecstasy) has no reasonable expectation of privacy. Nor does a deceitful legislator. Here is the relevant headnote….(see comments for that and four (4) distinct sets of acts of material malfeasance and deceit by Respondent McLeod)....

3 comments:

Christopher King said...

[10] Headnote Citing References KeyCite Citing References for this Headnote

Key349 Searches and Seizures
Key349I In General
Key349k13 What Constitutes Search or Seizure
Key349k21 k. Use of Electronic Devices; Tracking Devices or “Beepers.”. Most Cited Cases

Use of computer surveillance techniques that revealed “to” and “from” addresses of e-mail messages, addresses of websites defendant had visited, and total amount of data transmitted to or from defendant's Internet account did not amount to “search” in violation of Fourth Amendment; e-mail and Internet users had no expectation of privacy in to/from addresses of their e-mail messages or Internet protocol (IP) addresses of websites they visited. U.S.C.A. Const.Amend. 4.

As far a specious arguments, Respondent’s next cited case of Quon v. Arch Wirelss(sic) Operating Co. F.3d WL 2440559 (C.A. 9)(Cal) should have been attached as an unreported case, but at any rate it involved a third party surrendering information to the city in the form of what was basically a warrantless search: Arch communications was the pager company that gave the Police Chief information as the Chief sought to determine who was responsible for overages. Arch provided the information to a person who was not an addressee or intended recipient of the communication, and there was no FOIA request for the information:

“We hold that Arch Wireless provided an “electronic communication service” to the City. The parties do not dispute that Arch Wireless acted “knowingly” when it released the transcripts to the City. When Arch Wireless knowingly turned over the text-messaging transcripts to the City, which was a “subscriber,” not “an addressee or intended recipient of such communication,” it violated the SCA, 18 U.S.C. § 2702(a)(1). Accordingly, judgment in Appellants' favor on their claims against Arch Wireless is appropriate as a matter of law, and we remand to the district court for proceedings consistent with this holding.”

But there is no third party in this case. We are simply dealing with government property and a FOIA request, not an argument with the Chief of police over who owes what amount of money for text messaging. Thus Quon, like Forrester, is of no moment in this case and that is precisely why Respondent’s citation to these cases is so niggardly in content. But Westlaw and Lexis are the great equalizers in today’s legal battlefield where such antics should receive no quarter before this Honorable Court.

In contrast, Petitioner’s case law is solid, and the principles enunciated therein are solid and that is precisely why Respondents failed to even address it, but here it is again:

In re Bd. of County Comm'rs, Court of Appeals No. 03CA0074, Court of Appeals of Colorado, Division Five, 95 P.3d 593; 2003 Colo. App. LEXIS 1151; 20 I.E.R. Cas. (BNA) 1399; 31 Media L. Rep. 2448, July 17, 2003:

"We need not address whether the e-mails have a demonstrable connection to the exercise of functions required or authorized by law because we conclude, for the reasons indicated below, that the e-mails involve the expenditure of public funds, and thus, are [*598] public records [**7] subject to disclosure under CORA.

First, Baker, an elected county official, and Sale, a county employee, are compensated by public funds. Baker and Sale sent many of the e-mails while they were working. An employee's use of work time involves the expenditure of public funds.

Second, the e-mails were sent on the "Metrocall" e-mail system purchased by the county for use by county employees. The county pays monthly fees to use this system. The use of this system to send sexually explicit e-mails or e-mails unrelated to county business is relevant to allegations that Baker misspent public funds, including improperly promoting and compensating Sale.

Third, Baker and Sale used county-owned computers to send e-mails to county-owned pagers over the Internet. The county expends public funds for the purchase, maintenance, and use of this equipment."

Baker and Sale are both employees of larger government entities but the Court does not allow them to hide behind the cloak of anonymity as Respondents attempt to argue that Respondent McLeod is individually not part of a public body. That’s an absurd argument. Accord Pulaski County v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 2007 Ark. LEXIS 436; 35 Media L. Rep. 2089 (2007); see Concurring and Dissenting Opinion at Pulaski County v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, (2007).

To continue, straight from Petitioner’s Complaint:

Regarding public emails at private email accounts lawmakers in Tennessee had this to say:
"Law Director John Owings and Chief Deputy Law Director Mary Ann Stackhouse cited Tennessee Code Annotated 10-7-301(6) in offering that opinion, which defined public records as all documents, papers, letters, electronic data files, and similar material “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency”.

“If [an email] relates to the transaction of official business, it wouldn’t matter if it were sent to an official Knox County account or a private account. It would be public record, in my estimation,” Owings said.

A legislator cannot conduct his or her affairs concerning public matters through private emails to skirt FOIA/RSA 91-A and the legislature clearly did not intend for such an absurd resulte.

As clearly noted in Petitioner’s complaint at p.11, there were failures to adhere to the law after the seminal case of Hawkins v. NH DHHS, 147 N.H. 376 (2005). To wit, there was supposed to be an annual report issued but Respondent NH AG Kelly Ayotte (who has a representative on that committee) finally admitted to Petitioner that there indeed was no report issued in 2006. As such, the report of 2007 indicated that litigation was likely.

That having been said, let us review Respondent McLeod’s history of deceit relative to this matter alone; it has been suggested that she is also part of the back door dealings with the Grafton County Jail fiasco that is costing taxpayers $302,000.00 as noted in the Caledonian Record and as Petitioner will further elucidate at Oral Argument. In the approximate order of malfeasance, then:

1. The attachments already submitted by G.J., individually and by way of the Franconia Recovery and Reconciliation Committee clearly show that Respondent McLeod introduced failed HB 1428 Bruce McKay Highway in absolute secrecy, not informing her constituency or the FRRC of her actions. That is Constitutionally and politically despicable activity.

2. She willfully absented herself from discussing the professional and caring letter issued by Respondent. There is absolutely nothing derogatory in that letter that mentions the goal is to “make a film about a community that healed itself.” She acknowledged receipt of it and stated that as a public official she was going to ignore the emails from Respondent and instead run to Senior NH AAG Jeffrey Strelzin. She indeed actively the matter private by inviting him to a phone call that could not be traced under FOIA/RSA 91-A. That is Constitutionally and politically despicable activity.

3. She willfully absented herself from reading the emails, blawg posts and Certified U.S. Mail renditions (Officed #7007 3020 0001 6051 6691 and to her private residence #0307 3330 0001 3502 8015) of requests for her emails, which she clearly did as part of her amoral “defense” to this case. Said amorality has been duly noted at blawg post Attachment ___.

4. She accused Respondent and Liko Kenney’s father, Davey Kenney, of stalking her when Mr. Kenney took the picture in the public venue of Cannon Mountain as seen at Attachment ___. However, neither Mr. Kenney or Respondent ever physically approached her, and on her approach to us Respondent reminded her of that fact by stating point blank: “How are we stalking you, you walked up to us, we’re just taking pictures. Are you a public official? Ma’am, are you a public official or not?” To which Respondent McLeod never answered but did eventually shake Mr. Kenney’s hand but not that of Respondent. See Affidavit of Davey Kenney at Attachment ____.

As such, Respondent McLeod is exactly the type of Kwame Kilpatrick government officer who would act in derogation of the law to:

a) shield nasty activity on her public email account that taxpayers subsidize;
b) use her private emails to conduct public affairs, in direct contravention of the letter and spirit of RSA 91-A.

As such, given the fact that Respondent’s law isn’t even on point, this case cannot be dismissed and must proceed to a full blown hearing on the merits where Petitioner will produce yet more supporting arguments.

Christopher King said...

Petitioner is aware of United We Stand America, Inc. v. I.R.S. 359 F.3d 595 C.A.D.C.,2004 holding that Congress is not an agency, however the clear cut, manifest history of Bad Faith on the part of Respondent McLeod as noted in the previous items 1 through 4 is a compelling reason for reversal, modification or extension of that doctrine. See also the dissenting opinion of Judge Henderson.

Courts have found that Bad Faith provides grounds for expansive email production. Judicial Watch, Inc. v. U.S. Department of Commerce F.Supp.2d, 2000 WL 33243469 D.D.C.,2000. December 05, 2000

Nielsen v. U.S. Bureau of Land Management 252 F.R.D. 499 D.Minn.,2008.
September 03, 2008 (10) to or from United States Senators Harry Reid, John Ensign, or their staff or representatives; and (11) to or from any elected officials, staff or representatives of Washoe County pertaining to settlement of claims with Evans Creek.

It appears that the documents were indeed provided.

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