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Court of Appeal:
City Council Can’t Move Meeting in Response to Disruption
Under Brown Act, Opinion Says, Chamber May Be Cleared of Spectators If It Becomes Impossible to Conduct Business and Ejection of Unruly Individuals Isn’t Feasible, but Changing Location Isn’t Permissible
By a MetNews Staff Writer
The First District Court of Appeal has ordered reinstalment of an action by a activist group against the City of Berkeley alleging violations of the Ralph M. Brown Act, holding that the complaint stated a cause of action by alleging that a provision of the Open Meetings Law was for use in emergencies not complied with by moving a City Council session to another room where the prescribed remedy for disruptions is clearing the chambers.
In an opinion filed Tuesday, Div. Four interpreted Government Code §54957.9, a portion of the Brown Act, which provides:
“In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.”
It continues:
“Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.”
On Nov. 21, 2023, Nov. 28 of that year, and Jan. 16, 2024, demonstrations took place in the City Council chambers while a meeting was in progress. On each occasion, Mayor Jesse Arreguín declared that the problem could not be resolved by ejecting the individuals creating the disruption and the meeting was removed to another room, into which members of the press were admitted, with others being able to view the proceedings via closed-circuit television.
Injunctive, Declaratory Relief
Suit against the city and its governing body was brought on Feb. 22, 2024, by the Berkeley People’s Alliance—which identifies itself in the pleading as “a California non-profit corporation that works in the City of Berkeley for open, transparent, and fair governance; social and economic justice”—and by a member of its board, Nathan Mizell. The complaint seeks injunctive and declaratory relief, along with an award of attorney fees under the private attorney general statute.
The complaint sets forth:
“Government Code §54957.9 is straightforward and unambiguous. The City of Berkeley, however, has shown that it does not like the policy the Legislature has enacted and has repeatedly violated the statute. In particular, on at least three occasions in recent months, the City has simply moved Council meetings to another room without the public present in person rather than remove disruptive individuals or, if necessary, clear the original meeting room. There is no provision of the Brown Act that permits what the City is doing no matter how much the City prefers its solution over the Legislature’s.”
Alameda Superior Court Judge Victoria Kolakowski sustained a demurrer without leave to amend and the plaintiffs appealed from the ensuing judgment of dismissal. They maintained that “Berkeley has not complied with the plain language of the statute and the Superior Court did not take into account this lack of compliance.”
Amici’s Brief
In an amicus curiae brief, League of California Cities, the California Special Districts Association, and the California State Association of Counties argued on behalf of the city:
“Given the recent rise of incivility in our society generally, and in local government meetings specifically, this Court should be loath to tie the hands of policymakers or to find in the Brown Act a binary choice between physical force or a heckler’s veto. Government must function, but it need not break heads to do so.”
The brief contends:
“Reading section 54957.9 strictly would be overly burdensome and impractical, especially if it requires the City Council to collectively approve a formal order to clear the meeting room after finding a disruption cannot be quelled by excluding a few bad actors. How would it do so—making, seconding and debating a motion by shouting over those chanting protests? One can determine a teacup is insufficient to bail the ocean with attempting the task and without debating the issue. The Berkeley City Council’s decision to retreat to another room evidences it made that finding.”
Brown’s Opinion
Presiding Justice Tracie L. Brown authored the opinion reversing the judgment. She wrote:
“The statute’s plain language… allows members of a legislative body to command that the room in which the meeting is taking place be emptied of its occupants or freed from its obstructions. Recessing a meeting and reconvening it in another room is not ordering the meeting room be emptied of its occupants or obstructions.”
Brown added:
“[S]ection 54957.9 does not provide that a legislative body may move the meeting location. The Brown Act requires that legislative bodies give prior public notice of the location of their meetings….Section 54957.9 states that a legislative body may ‘continue in session’ after ordering the meeting room cleared…, but it does not contain language authorizing the meeting’s relocation.”
The presiding justice remarked:
“If section 54957.9 were construed to allow a legislative body to recess a meeting and then move it to another location, an order that the meeting room be cleared—in other words, emptied of its occupants—would be an idle act.”
She declared that “the California Constitution requires a strict construction consistent with the statute’s plain language as opposed to a broad construction that could impede in-person media attendance and public access to information concerning the conduct of the people’s business by allowing a legislative body to move the meeting without specific requirements for giving notice of the relocation.”
Brown cited Art. I, §3(b)(2) which says, in part: A statute…shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”
The case is Berkeley People’s Alliance v. City of Berkeley, 2025 S.O.S. 2647.
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