Thursday, October 30, 2003
C.A.: Newspaper Entitled to Fees in Brown Act Suit Against Supervisors
By KENNETH OFGANG, Staff Writer/Appellate Courts
The company that publishes the Los Angeles Times is entitled to recover attorney fees from Los Angeles County in connection with litigation that resulted in a finding that county supervisors had violated the state’s open meetings law, this district’s Court of Appeal ruled yesterday.
Los Angeles Superior Court Judge Dzintra Janavs erred, both legally and factually, in holding that Los Angeles Times Communications LLC and its co-plaintiff, California First Amendment Coalition President Richard McKee, had failed to establish a right to attorney fees under the Ralph M. Brown Act, Div. Eight ruled.
Janavs ruled last year that supervisors violated the act on Dec. 18, 2001; Jan. 4, 2002; and Jan. 8, 2002 by discussing matters in closed session that were not on the agenda.
The Brown Act, which begins at Government Code Sec. 54950, requires all deliberations of local public government bodies in California to be conducted in public, unless they concern litigation or personnel matters. It prohibits members of city councils, boards of supervisors, commissions, water district boards, and other public agencies from contacting each other by letter or telephone, or in person in a non-public forum, to get information about matters they are to vote on or to discuss how to vote.
Janavs agreed with the Times that the board violated the law on Dec. 18, when it went into closed session ostensibly to discuss “[i]nitiation of litigation.” The board, she found, violated the act “by discussing whether County Counsel Lloyd W. Pellman should withhold and by directing him to withhold” the title and summary which he was required to prepare for a proposed initiative, opposed by the board majority, which would increase compensation for the county’s home healthcare workers.
The county argued unsuccessfully that the board acted within the scope of the agenda item. Pellman, the county said, had explained to the board that he could withhold the title and summary and thus force proponents of the initiative to file suit—permitting the board to raise constitutional objections to the measure.
The board approved by a vote of 4-1, although Pellman decided the next day that he had an independent statutory duty to prepare the title and summary regardless of that vote.
Janavs also found that the board illegally deviated from its agenda during closed discussions on Jan. 4 and 8 by instructing Chief Administrative Officer David Janssen “to devise protocols for closed sessions and for taping meetings.” The protocols that were later adopted provided that minutes of actions taken be kept, but that there were to be no minutes or sound recordings of the actual board discussions.
The plaintiffs moved for attorney fees under Government Code Sec. 54960.5, which provides that the court “may award court costs and reasonable attorney fees.” But Janavs denied the motion, finding that the suit was unnecessary because Pellman had undone the effect of the Dec. 18 violation and because the county had adopted procedures to make sure the act was not violated in the future.
Justice Laurence Rubin, writing for the Court of Appeal, said the judge had abused her discretion.
In determining whether to award fees to a prevailing plaintiff in a Brown Act case, Rubin explained, the trial judge must follow the rule used in other types of public interest cases, such as civil rights actions.
Under that standard, the justice said, the plaintiff is presumably entitled to fees, and the defense can only overcome the presumption by showing “special circumstances.” None of the justifications offered by the trial judge for her ruling qualify as special circumstances in light of the statutory purpose for which fees are authorized to be awarded, the justice concluded.
Rubin criticized Janavs’ finding that Pellman’s actions of Dec. 19 vitiated the need to sue over the events of the previous day.
“...Pellman’s change of heart the day after the Board voted to have him violate state election laws was not based on his belief that a Brown Act violation occurred on December 18,” the justice wrote. “Neither was Supervisor [Gloria] Molina’s initiation of new Brown Act procedures on January 4 and 8. Instead, as the Board’s records show, it was prompted by Molina’s belief that the Brown Act had been violated on December 19 when Pellman phoned three Board members to discuss his decision to comply with the election laws.”
Nor did the new protocols, which required members to present their proposed closed-session items to the board chair, who would consult with the county counsel before deciding whether the items were exempt from the Brown Act, assure that the act would not be violated again, Rubin said. He noted that the protocols prohibit the taking of minutes at, or taping of, closed sessions.
Since the protocols made it impossible to learn what happened at a closed session, and the county was still insisting that no violation occurred on Dec. 18, it was reasonable for the plaintiffs to conclude they had to sue, the justice reasoned.
“Pellman...along with the district attorney, opined that no Brown Act violations occurred. Rather than acknowledge the violations and agree not to do so again, the Board and Pellman resisted appellants’ legal challenge, forcing the matter to trial and judgment. Protocols that gave Pellman a major voice in determining whether the Brown Act applied in any particular situation were not likely to prevent an immediate reoccurrence of Brown Act violations given Pellman’s insistence that the Board had committed no violation....The trial court was therefore wrong when it found that this action was unnecessary.”
Attorneys on appeal were Kelli L. Sager, Alonzo Wickers IV, and Susan E. Seager of Davis Wright Tremaine, along with Times in-house lawyer Karlene Goller, for the plaintiffs, and Thomas F. Winfield III, Tracy M. Noonan, and Michael H. Wallenstein of Brown, Winfield & Canzoneri, Inc. for the county.
Copyright 2003, Metropolitan News Company