Metropolitan News-Enterprise


Wednesday, November 22, 2006


Page 1


Council Members Cannot Sue Colleagues for Violating  Open-Meetings Provisions of Brown Act—C.A.


By a MetNews Staff Writer


Members of a local legislative body generally lack standing to sue their colleagues for violation of the Ralph M. Brown Act’s open-meetings provisions, the Court of Appeal for this district has ruled.

Div. Seven Monday affirmed Los Angeles Superior Court Judge David Yaffe’s ruling in favor of the City of Santa Monica in a suit brought by City Council members Robert Holbrook and Herb Katz.

The pair alleged in their complaint that the city, whose council meetings are notorious for running late into the night, “in essence deprives the public of their fundamental right to address their local legislative representatives,” by forcing citizens to wait until the end of meetings to offer comment.

They asked Yaffe to enjoin the council from meeting past 11 p.m., but the judge ruled that such an injunction would curtail fellow council members’ and citizens’ free speech rights and granted the city’s anti-SLAPP motion.

The plaintiffs, Yaffe ruled, failed to meet their burden of showing a probability of success on the merits because they could not establish standing to sue, either under the Brown Act or for what they claimed was a violation of their state and federal constitutional rights.

Justice Laurie Zelon, writing for the Court of Appeal, said the trial judge was correct, both as to the applicability of the anti-SLAPP statute and as to the plaintiffs’ lack of standing.

Zelon rejected the plaintiffs’ claim that they were seeking to protect, rather than deny, rights of free speech and petition, as well as open government. The inevitable effect of their requested injunction, the jurist reasoned, would be to deny citizens their right to be heard in public comment whenever the council failed to conclude all other business before 11 p.m.

Such a remedy, Zelon wrote, “runs counter to the Brown Act’s mandate of providing an opportunity for the public to directly address legislative bodies on matters of interest to the public that are within the body’s subject matter jurisdiction before or during the body’s consideration of that matter.”

The plaintiffs, who argued that the “public interest” exception to the anti-SLAPP statute applied, “have not shown that cutting off public comment and input, ending member debate, and preventing the City Council from further legislative action at an 11:00 p.m. witching hour benefits the public in any way,” the justice said.

The plaintiffs lacked standing, Zelon went on to say, because they failed to show a “beneficial interest” in the matter.

The plaintiffs’ claims that they are unable to effectively represent their constituents because they get tired, have trouble digesting information and asking questions, and sometimes leave before meetings conclude do not add up to the requisite interest, the justice declared.

 “The problem for Holbrook and Katz is that the courts have not recognized a beneficial interest in the operation of the governmental entity arising from membership in that entity,” the justice wrote, citing Carsten v. Psychology Examining Com. of the Board of Medical Quality Assurance (1980) 27 Cal.3d 793, in which the court held that a member of the licensing body for psychologists lacked standing to sue to enforce laws relating to the grading of examinations because he was not an applicant for a license or otherwise disadvantaged by the committee’s practices.

Zelon distinguished Degrassi v. Cook (2002) 29 Cal.4th 333, in which the court suggested that a council member who claimed that she had been denied access to information by her colleagues, while barred from suing for common law damages, could have sought a remedy under the Brown Act. The cases are different, Zelon explained, because Holbrook and Katz want to enjoin official actions of the council rather than conduct targeting them personally.

Nor, the justice said, do Holbrook and Katz have standing as “interested persons” under the Brown Act. The Legislature, Zelon wrote, did not intend the Brown Act to be used as a weapon by which dissident officials could persuade the courts to order that which they could not persuade their colleagues to do.

“We agree with the Supreme Court that citizen standing is not a weapon to put in the hands of dissatisfied public officials seeking a new venue for advocacy; that the courts must not become a body to hear what would amount to legislative appeals; and that permitting this kind of citizen lawsuit would be incompatible with the officials’ acceptance of public office and detrimental to the separation of powers,” the justice wrote. “Accordingly, for the reasons set forth in Carsten, we conclude that when Holbrook and Katz accepted their seats on the Santa Monica City Council they forfeited the Brown Act standing they would otherwise have had as citizens of California to sue the City Council.”

The case is Holbrook v. City of Santa Monica, 06 S.O.S. 5632.


Copyright 2006, Metropolitan News Company