A little over 50 years ago, California voters approved Proposition 11 by a 25-point margin. It amended the state Constitution to add privacy to the “inalienable rights of people.”
That includes the right to keep your salary secret.
In a downtown courtroom Monday, Judge Ronald Frazier ruled that he’d keep the wages of certain KUSI on-air staffers from being disclosed publicly at this week’s civil trial involving ex-anchor Sandra Maas.
“I’ll close the courtroom [to the press and public] just for those questions, and then we’ll come right back in,” Frazier said in fourth-floor Department 65.
Calling himself a firm believer in the public’s right to know, Frazier said he spent the weekend mulling the “conundrum” of which right should prevail.
“I want to balance it against the logistics of trying a case,” he said, agreeing with lawyers for McKinnon Broadcast Co., owner of KUSI. “I want to respect someone’s privacy.”
Maas, suing KUSI over alleged violations of the state’s Equal Pay Act and other issues, will have her salary disclosed, as will her co-anchor, Allen Denton.
But wages paid specific anchors of lower-rated KUSI news shows may still leak at trial — despite Frazier’s order.
Maas attorney Josh Gruenberg said he would note such pay during closing arguments — a prospect the judge had no immediate answer for.
“If it comes out in a relevant way, we’re going to have to mention it,” Gruenberg said, noting that it would be argument and not evidence.
Frazier agreed: “I can’t restrict the plaintiffs from taking that testimony and arguing it in closing arguments.”
At one point, while discussing a protective order in the case, KUSI attorney Marisa Janine-Page suggested that jurors should be forced to sign an agreement not to disclose private pay information.
Frazier swatted that down: “That’s not going to happen.”
Ken Fitzgerald, another KUSI lawyer, likened the pay-disclosure issue to cases he’s handled involving trade secrets. And how courtrooms were closed there, too.
But Maas lawyer Gruenberg said it was “two-faced” for KUSI to want some salaries disclosed publicly and others not.
“They want to protect … their current employees, but for everyone else, go ahead (and reveal wages),” said Gruenberg, who opposes letting KUSI introduce the pay of other anchors. “If they do that, this is what they get.”
One likely witness on wages is Logan Byrnes, who replaced Denton as co-anchor with Maas when Denton retired in February 2019. KUSI wants to use Byres as a “comparator” for sake of proving Maas was fairly paid.
Gruenberg said Byrne — a former Los Angeles lawyer — doesn’t have a “very great” interest in keeping his salary confidential.
“He’s not a pauper,” Gruenberg said. “If he wanted to make more, he could probably do it in a heartbeat.”
Still to be decided is who else KUSI can call as witnesses, including “Good Morning San Diego” anchors Jason Austell and Paul Rudy. Their roles will be debated Tuesday at a so-called 402 hearing on whether their evidence is admissible at trial.
Frazier hopes that once this and other issues are resolved, jury selection can begin later Tuesday.
But KUSI attorney Janine-Page is still worried about the prospect of losing defense witnesses.
“It’s not just about Mr. Byrnes,” she said. “It’s about five or six people who are refusing … to say what their salaries are.”
Said Frazier: “You can tell your witnesses that for purposes of their testimony it will be outside the presence of [the press and public].”
At one point, he worried aloud about female KUSI staffers other than Maas being put on the witness stand — to show how their salaries compare to men at the conservative station.
The judge called that an “undue consumption of time,” and asked: “The jury should be able to hear they’re making less, too?”
Some 17 motions were argued Monday — on what to exclude from trial — with Frazier saying: “You guys have given me some very interesting issues to decide.”
He said he meant that as a compliment.
Maas lawyers said Rudy, who made his name and fame with the Friday night “Prep Pigskin Report,” bragged about his own “lucrative deal” and thus is “centrally relevant” to the case as far as Maas’ whistleblower protections and gender-bias claims.
KUSI’s Fitzgerald said: “Paul Rudy worked like a dog. He would have been an associate at my old law firm.”
But Judge Frazier repeatedly batted down topics the jury would hear — either because they might prejudice the jury against one side or another or they would lead to “mini-trials” that KUSI’s Fitzgerald said could extend a two-week trial to four weeks.
Among them: testimony on political views.
“I don’t want this to be about Trump or Biden” or go down “rabbit holes” regarding the attack on Nancy Pelosi’s husband, said the judge, a Democrat appointed by GOP Gov. Arnold Schwarzenegger in 2009.
Fitzgerald said he’d recently read scathing online comments against his client, such as “KUSI sucks. This is a slam-dunk case.”
“We don’t want to get into politics either,” he said.
So the KUSI attorney promised not to raise the issue of anchor Denton being sent to the Trump 2017 inaugural instead of Maas or how Maas once posted a photo of herself on Instagram wearing a hat praising Dr. Anthony Fauci.
“We’ll take the Fauci hat picture out,” Fitzgerald said.