In 2006, the City of Vista, California adopted The Day Labor Employment Ordinance as an attempt by the small city, located north of San Diego, to regulate a growing problem of unauthorized alien workers soliciting employment within its municipal boundaries. The ordinance provided that employers must file for a registration certificate with the city in order to hire day laborers. For employers who obtained a registration certificate, the city instituted a practice of non-interference with the recruitment or employment of unauthorized alien workers. City administrative policy stated that day labor employment was by registered employers would be deemed “casual and sporadic employment,” for which compliance with federal employment verification procedures in 8 U.S.C. §1324a(b) was not required.
Michael Spencer, a resident of Vista who was concerned that the city’s practice enabled employers to employ illegal aliens in violation of federal law, sought under the California Public Records Act copies of all applications and registrations filed under the ordinance. Instead of producing the requested documents the city delivered a copy of the request to attorneys from the American Civil Liberties Union Foundation of Southern California (ACLU SoCal). It turned out that in July 2006, ACLU SoCal had filed a constitutional challenge to the Vista ordinance in federal district court in San Diego. Hernandez et al. v. City of Vista, No. 06-cv-1443 (S. D. Cal. 2007). After the federal district court denied the aliens’ motion for a preliminary injunction, the city and ACLU SoCal had negotiated a non-public settlement in June 2007, but which did not become effective until filed with the district court on August 28, 2007. The agreement provided inter alia that the names and contact information of registrants would not be treated as public access information without prior notice to the ACLU.
On July 6, 2007, ACLU SoCal filed a lawsuit for injunctive relief barring the city from complying with Spencer’s Public Records Act request. John Doe et al v. City of Vista, No. 37-2007-000542000 (Sup Ct. San Diego County, N. Cty Div. July 6, 2007). The plaintiffs were four anonymous employers registered with the city under the ordinance, who alleged that compliance with Spencer’s request would violate their right to privacy under the California constitution. The Superior Court granted the plaintiffs a TRO barring compliance by the city with Spencer’s request. The City did not oppose the motion, and Spencer was unrepresented. The City denied Spencer’s request in writing on July 14, 2007.
Spencer contacted IRLI and requested representation. IRLI entered an appearance in the case and Spencer was granted intervenor status as a real party in interest. He filed a complaint in intervention on July 27, 2007. In early August, the ACLU informed IRLI that its complaint constituted an anti-SLAPP action prohibited under California law. IRLI amended the complaint as a cross-complaint on August 27, 2007, arguing that the refusal of the city to comply with Spencer’s request violated his right to access public records under California law. Spencer also argued that involvement of the city in negotiating a 2006 settlement agreement with ACLU SoCal in the Hernandez litigation not only made the city unable to adequately represent him, but that by providing Spencer’s public records request to a third party, the city had violated California Public Records Act §6253(d), and that the settlement impermissibly amended the city ordinance. These actions were also alleged to constitute a civil conspiracy. Spencer also claimed federal preemption and national origin discrimination under the state Unruh Act. The Superior Court also granted intervenor status to the Copley Press, Los Angeles Times, and the Southern California Newspaper Association, who joined with Spencer in opposing the preliminary injunction barring release of the requested records.