Berkeley teacher and activist Yvette Felarca must pay a national conservative group more than $20,000 in legal fees, a federal judge said Wednesday.
In his order, Judge Vince Chhabria called Felarca and her colleagues’ lawsuit against Berkeley Unified, in which conservative organization Judicial Watch was named a party, “frivolous” and “unreasonable.”
“This is an exceptional circumstance,” wrote Chhabria. He declined to award Judicial Watch the full $326,159 that the Washington, D.C. organization had sought.
The case stems from a 2017 records request filed by Judicial Watch. The group asked Berkeley Unified for all emails sent among district and King Middle School staff related to Felarca and her radical activism with By Any Means Necessary. Felarca has been a prominent figure at many local political rallies and is currently facing a felony charge in Sacramento for allegedly assaulting a neo-Nazi demonstrator.
BUSD officials at the time said they were obligated to fill Judicial Watch’s request, but would only release documents required under the California Public Records Act.
Felarca and King colleagues Lori Nixon and Larry Stefl, in turn, sued BUSD in late 2017 to stop the district from handing over the emails. Their lawyers, from By Any Means Necessary, argued that the release of any of the records would chill Felarca’s freedom of speech and threaten the safety and privacy of her colleagues.
Chhabria ruled in October 2018 that the Felarca and the other educators could not prevent BUSD from releasing the emails to Judicial Watch. The school district released the records in batches over the next few months. Berkeleyside filed a request for the records given to Judicial Watch, and covered the documents in two stories.
Judicial Watch initially argued that the organization was entitled to more than $317,850 in attorney’s fees and $8,309 in litigation costs from Felarca, Nixon and Stefl. Chhabria reduced the amount to $22,000 in attorney’s fees (Felarca is responsible for $20,000; the other two must pay $1,000 each) and $4,000 in litigation costs.
The judge explained that he lowered the amount in part because some of the delays that extended the case — thus increasing the legal fees — were BUSD’s fault, not the plaintiffs’. Judicial Watch also spent unreasonable amounts of money on flights and hotels and included the costs in its total bill, he said.
“Lastly, Judicial Watch’s request doesn’t account for the plaintiffs’ limited financial resources,” he said.
Felarca’s lawyer Shanta Driver said Wednesday that if the judge had not decreased the award, the educators would have become “indentured servants to Judicial Watch for the rest of their careers.”
She criticized Chhabria’s ruling, however, calling it “politically biased” and “extraordinarily dangerous” because it will show teachers that if they try to protect their privacy, they could have to pay a fine.
“There was no way this was ever a frivolous lawsuit,” Driver said. “If the cost of being politically active and stating your political positions on non-work time…results in a right-wing troll organization being able to gain access to your email and other correspondences,” teachers will be scared to speak out, she said.
The lawyer said she believes the California Public Records Act should be amended to exempt public employees who are not in authority positions — and said this case has presented an opportunity to “get that law corrected, so it can be used for its proper purpose…not to be able to carry out a specific political witch hunt.”
Paul Orfanedes, Judicial Watch’s director of litigation, recently told Berkeleyside that the organization did not “have some particular goal in mind” when it requested records from BUSD. “We do lots and lots of Freedom of Information Act” requests. (Judicial Watch is best known for its role in the effort to release Hillary Clinton’s private emails.)
“We were interested in seeing, initially, how the district was responding to this storm of controversy,” Orfanedes said.
The records that were ultimately released showed that BUSD has been flooded with calls and emails demanding Felarca’s firing, including from some neo-Nazis, particularly after the teacher went on Fox News to defend her views.
“They had to shut down their phone system. You really get a sense of the burden on these people of a mess they didn’t create,” Orfanedes said.
He said Judicial Watch never expected the case to be brought to court. The organization has not publicized any of the records yet because the directors did not want to influence the judge’s decision on the legal fee matter, Orfanedes said.
In his Wednesday order supporting Judicial Watch, Chhabria explained, “To start, a significant portion of the documents the plaintiffs initially sued to protect from disclosure had been publicly disclosed months earlier in another suit brought by Ms. Felarca against BUSD, where she was represented by the same counsel.”
The judge also wrote that an argument by Felarca’s lawyers that the First Amendment condones their ideology but “condemns the ‘alt-right'” was “obviously baseless.” He said they “failed to grapple with the role Ms. Felarca played in making herself a topic of public discourse through her physical conduct at public rallies and her voluntary appearance on Fox News.”
In a statement shared with Berkeleyside, BUSD spokesman Charles Burress said the district has not been involved in the legal-fee issue.
But, the statement said, “This case has consumed a very large amount of BUSD staff time and energy, in addition to the legal costs the District had to incur defending a lawsuit that the federal court ultimately concluded was frivolous.”