City attorney slickness no match for First Amendment

A last ditch effort by the Tourism Marketing District to get a lawsuit dismissed for a lack of standing looks as if it will be shot down in court, further jeopardizing hundreds of millions of dollars in hotel taxes for use by the Tourism Marketing District Corporation, whose boardmembers include San Diego's wealthiest and largest hotel owners.

In a tentative ruling, judge Joel Wohlfeil rejected the district's request to confiscate and search now-deceased activist Ian Trowbridge's iMac computer; it is alleged by the defendants that one of San Diegans for Open Government's membership forms may have been doctored using his machine.

Trowbridge's partner Dell Cunamay is now in possession of the computer. Cunamay, however, is not a member of San Diegans for Open Government, nor is he a party to the lawsuit challenging the legality of a hotel tax without a two-thirds public vote, as required by the California Constitution.

Wohlfeil stated that although challenging the membership is "relevant,” it does not outweigh First Amendment rights.

"In view of Mr. Cunamay's privacy objection, the Court considers a balancing approach to the requested discovery to be appropriate," reads Wohlfeil's ruling. "The Court finds that, though [Tourism Marketing District] Corp's requested discovery seeks relevant information, [Tourism Marketing District] Corp's need for the information is outweighed by Mr. Cunamay's right to privacy."

Wohlfeil cited San Diegans for Open Government attorney Cory Briggs’s argument against turning over the computer.

"As reflected in [San Diegans for Open Government's] opposing papers…'The item [that the tourism group] seeks to compel Mr. Cunamay to produce is not discoverable because it is protected by a constitutional right to privacy…. Information that is non-privileged but otherwise relevant may be protected from disclosure where disclosure would violate a person's 'inalienable right to privacy' protected by the California Constitution.

As Ian Trowbridge's survivor, Mr. Cunamay enjoys the same constitutional protections and privacy rights in the computer as Mr.Trowbridge possessed during his life. Accordingly, the computer and its contents are protected by Mr. Cunamay's constitutional right to privacy and the motion should be denied in its entirety."

In recent weeks, privileged testimony provided during a closed-session deposition of Cory Briggs's spouse, Sarichia Cacciatore, was leaked to inewsource. The confidential testimony revealed that Cacciatore served as an environmental consultant for city contractor, Helix Environmental. Cacciatore, it was found, played a minor role in drafting at least one environmental impact report that Briggs later sued over. Cacciatore is also listed as vice president of Briggs's law firm.

On the day of the inewsource report, city attorney Jan Goldsmith filed a request to get the leaked transcript released. According to a statement by Goldsmith's spokesperson (and former U-T reporter) Gerry Braun, releasing the transcript was needed in order to fulfill a public records request made by inewsource reporters just two days before.

Briggs, through attorney Marco Gonzalez, voluntarily released the testimony to the news organization and to Goldsmith. According to a subsequent report, executives from Helix Environmental admitted that they were aware of Briggs and Cacciatore's relationship and were assured that she had no role in the law firm.

The ruling now leaves attorneys for the Tourism Marketing District to defend the actual merits of the hotel tax.

Attorneys for the Tourism Marketing District will have an opportunity to address Wohfeil's ruling on Friday, March 13, before it is made final.