Metropolitan News-Enterprise


Tuesday, April 15, 2008


Page 1


C.A. Says Plaintiff Cannot Ask Legislators Why They Passed Law

Panel Rules Legislative ‘Mental Processes’ Principle Not Abrogated by Proposition 59


By STEVEN M. ELLIS, Staff Writer


The owners of a San Jose card room who alleged that the city enacted an ordinance for the purpose of putting them out of business are not entitled to access documents that might illustrate the mental processes of city council members who approved the ordinance, the Sixth District Court of Appeal has ruled.

Concluding that voters’ adoption of Proposition 59—which enshrined the public’s right to access the records of public agencies in the California Constitution—did not abrogate the “mental processes” principal precluding judicial inquiry into the motivation of legislators in enacting legislation, the court held in a decision ordered published yesterday that the owners of Bay 101 could not access documents related to the San Jose City Council’s decision to restrict operational hours and certain types of betting at card rooms in the city.

Sutter’s Place Inc. operates a card room called Bay 101 under a permit issued by the city. When the city adopted an ordinance prohibiting the operation of card rooms between 2 a.m. and 6 a.m., and prohibiting backline betting, or betting on the hands of other players, the company sued, seeking to nullify the ordinance.

It argued that the reduced hours and gaming options would render its business uneconomical, and contended that the city’s true motive in adopting the ordinance was to put it out of business.

Extensive Discovery Sought

The company sought extensive discovery, but the city resisted on various grounds, so Santa Clara Superior Court Judge Gregory H. Ward held an in-camera review and issued an order protecting some of the requested documents from disclosure on the ground that it would violate the mental processes principle.

Sutter’s Place then sought a writ of mandate or prohibition to overturn the order and compel discovery, contending that 2004 passage of Proposition 59 abrogated the mental processes principle.

Stating that “[t]he people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny,” the proposition provides that statutes, court rules and other authority must be broadly construed where they further the people’s right of access, but narrowly construed where they limit it.

Exceptions to Proposition

However, the proposition specifically states that it neither supersedes nor modifies any right to privacy, any other provision of the California Constitution, any existing exception to the right of access to public records or meetings of public bodies, or any protections for the confidentiality of legislative proceedings.

Writing for the Court of Appeal, Justice Eugene M. Premo first noted that the “mental processes” principle arises from the “separation of powers” doctrine, which is expressly stated in the California Constitution and implied in the U.S. Constitution, and wrote that California courts have clearly lacked authority to inquire into the motives of the Legislature in passing legislation since 1855.

Observing, based on the opinion in County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, that the “mental processes” principle was “less a privilege than the ‘more fundamental, historically enshrined legal principle that precludes any judicially authorized inquiry into the subjective motives or mental processes of legislators,’” Premo pointed out that state courts are similarly prohibited from examining the motives of local legislators.

As a result, he concluded that Sutter’s Place was not entitled to question the city’s legislators as to their reasons for enacting the ordinance, even if it could be assumed that the ordinance resulted from an illicit motive.

Premo saw little merit in the company’s argument that California’s voters had abrogated the principle when they adopted Proposition 59.

Conceding that the proposition “establishes a constitutional right of access concerning the conduct of the people’s business,” he nonetheless rejected Sutter’s Place’s assertion that the proposition—by stating only that it did not alter confidentiality protections for the Legislature—had negated the principle for legislators at the local level.

“Proposition 59 is simply a constitutionalization of the [California Public Records Act],” Premo wrote. “As such, the proposition did not change existing law except as can be gleaned from its language… [T]here is absolutely no language in the proposition that can be construed as intending to change the fundamental, historically enshrined legal principle that precludes any judicially authorized inquiry into the subjective motives or mental processes of legislators.”

The constitutional amendment, he added, “manifests an intent to affirm, rather than change existing law.”

Presiding Justice Conrad L. Rushing and Justice Franklin D. Elia joined Premo in his opinion.

San Jose City Attorney Richard Doyle said that that his office had requested publication of the opinion, and called it “a good statement of the law” that courts do not have the authority to “second guess” legislators’ votes.

However, counsel for Sutter’s Place, James McManis of McManis Faulkner & Moran, told the METNEWS that the court had gotten the decision “dead wrong,” and that he was “astonished” that it would order publication of such a “dreadful” decision.

Remarking that the court’s adoption of the “goofy” mental process principle represented “the kind to judge-made exception” to state sunshine laws to which voters had said “no more” when they approved the proposition, McManis said that Premo’s opinion “flies in the face of the voters’ will” and said that his client will likely seek Supreme Court review in order to argue that “Proposition 59…means what it says.”

The case is Sutter’s Place v. Superior Court (City of San Jose), H031317.


Copyright 2008, Metropolitan News Company