During the final weeks of the 2010 Oakland mayor's race, candidate Marcie Hodge filed a lawsuit against the East Bay Express, claiming that a Full Disclosure column, "The Baffling Mayoral Bid of Marcie Hodge" (9/29/10), was libelous. The column raised numerous questions about how Hodge was financing her mayoral campaign and whether she was running as a spoiler to help fellow candidate Don Perata defeat his main rivals, councilwomen Jean Quan and Rebecca Kaplan. Last week, an Alameda County judge dismissed Hodge's lawsuit in its entirety on the grounds that it was without merit, and awarded attorney fees to the paper and its lawyer, Joshua Koltun.
But the litigation that Hodge brought against the Express, this reporter, and former editor Stephen Buel was more than just a frivolous libel suit. It was also a comedy of errors that raises further questions as to Hodge's fitness for public office. She is a member of the Peralta Community College District Board of Trustees, and as such, her decisions affect the education of tens of thousands of East Bay residents.
Hodge filed the lawsuit in October of last year, claiming that had she suffered $20 million in damages. But it was unclear at the time whether she was serious about pursuing the case because she did not serve the Express or this reporter with legal papers as required by law. The Express decided not to write about the lawsuit at the time. "After discussing it, and knowing that our facts were correct and substantiated, we saw no reason to publicize this lawsuit during the mayor's race," said Jody Colley, publisher of the Express.
In February, Hodge's sister, Nicole Hodge Amey, who was also her attorney, filed an odd declaration with the court. She said that she had not served the Express with the lawsuit because she could not find the "correct defendants." The declaration was hard to believe, not only because the Express' address in Oakland is easily found through an Internet search or by looking in the White Pages, but because Hodge's lawsuit itself included the newspaper's correct address. In short, Hodge Amey could have easily found the Express' headquarters and the correct defendants if she had read the lawsuit that she filed.
Finally, in April, Hodge Amey served the lawsuit on this reporter and the Express. The papers were hand-delivered to the Express' office, but, strangely, they were enclosed in an envelope addressed to a location in San Leandro that is home to a tire-service repair shop — TCI Tire Centers, to be exact. For the record, the Express has no relationship with TCI Tire Centers and has never been located in San Leandro.
After being served with the suit, the Express obtained a media-law expert and attorney named Joshua Koltun. This reporter also decided to re-examine Hodge's finances and those of her unsuccessful mayoral campaign (she came in fifth with 3.1 percent of the ranked-choice vote).
During the campaign, Hodge had kept the identities of her political donors and how she had spent her mayoral campaign funds a secret until after the election, in apparent violation of state law — much as she had done in previous campaigns. Candidates are required by law to disclose their donors and how they spend their money prior to an election so that voters can know who is bankrolling each candidate's campaign.
Yet even after Hodge finally filed her official donor statements in the days and months following the election, her campaign's finances remained murky. As Full Disclosure reported in September 2010, her donor statements in previous years showed that several of Perata's most reliable contributors had helped fund her unsuccessful campaign for Oakland City Council in 2006 and her Peralta reelection bid in 2008. Her previous statements also showed that Perata's 2010 mayoral campaign manager, Larry Tramutola, had been her 2006 campaign manager.
Although Hodge's 2010 mayoral statements showed no such connections with Perata, they also appeared to fail to account for several campaign expenditures and where she got the money to pay for them. For example, the Oakland Tribune reported in February that Hodge failed to list the $1,500 cost of buying an ad in the Tribune. The newspaper also reported that Hodge failed to fully account for the costs of buying numerous billboards in the city.
In response to this reporter's questions last year, Hodge maintained that she was financing much of her campaign herself. However, it's unclear where she got the money, because Hodge declared on her official statement of economic interests that she had no job, investments, or income that produced more than $500 annually.
Alameda County property records show that Hodge owns a home in East Oakland. But she did not list that home as her official place of residence. If she does live there, then she should have declared it under state law, and if she rents it out for more than $500 a year, then she must report it on her statement of economic interests — which she did not.
As a result, this reporter decided to visit the home Hodge owns to see if she lives there or rents it out. The woman who answered the door said that Hodge does not live there. This reporter then asked the woman to ask Hodge to call, and she said she would. Hodge, however, did not call to answer questions about the home she owns.
Instead, a short time later, Hodge went to court to seek a restraining order against this reporter, alleging that she was being "stalked." However, in another weird move that defies explanation, Hodge claimed that this reporter is black. For the record, this reporter is white.
Hodge and her sister also didn't seem to be able to figure out how to serve the Express with the restraining order documents as required by law. All it would have taken was to come to the Express office and ring the doorbell, but they didn't do that, resulting in a delay of the restraining order hearings. Eventually, Hodge properly served the Express, and then an Alameda County judge promptly refused to grant the restraining order, noting that the First Amendment allows journalists to knock on people's doors and ask questions.
In the libel suit, Hodge claimed that the 2010 Full Disclosure column was defamatory because she said she had not run as a spoiler in an effort to siphon votes from Quan and Kaplan and to help Perata win. In response, the Express' attorney, Koltun, noted that the column in question never concluded that Hodge was running as a spoiler.
Instead, the column quoted two prominent black leaders in Oakland who believe that Hodge was. The column also noted that Hodge was spending lots of money in the campaign, and that she had a history of not disclosing the identities of her donors until well after the election. The column also noted that several of Perata's most trusted donors had helped bankroll her previous campaigns and that Tramutola had been her campaign manager previously.
To dismiss the suit, Koltun filed a special motion to strike, also known as an anti-SLAPP motion. It's a legal maneuver under California law that's often used to dismiss frivolous lawsuits filed against news organizations. Koltun noted that the column was protected speech under the First Amendment.
On November 17, Superior Court Judge Marshall Whitley issued his decision, agreeing with Koltun's arguments and dismissing Hodge's suit completely.
"Anytime you get sued for $20 million it is a big thing," Colley said. "But our paper has not and will not knuckle under this kind of harassment. As a newspaper, we have a privilege, and, in fact, an obligation to use our rights under the First Amendment to continue our thirty-year tradition of useful news and commentary. No matter the financial threats, we will continue to be a strong voice and conscience in the East Bay."