Fee Order in Brown Act Suit Against County Supervisors Left Standing

Thursday, February 5, 2004

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Fee Order in Brown Act Suit Against County Supervisors Left Standing

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Supreme Court yesterday left standing a Court of Appeal ruling that 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.

The justices, in an order emanating from their weekly conference, declined the county’s request to review the ruling by this district’s Div. Eight in Los Angeles Times Communications LLC v. Los Angeles County Board of Supervisors (2003) 112 Cal. App. 4th 1313. The court also denied the county’s request for depublication of the opinion.

No justice voted to review or depublish. Chief Justice Ronald M. George was absent and did not participate.

The Court of Appeal ruled Oct. 29 that the Times and its co-plaintiff, California First Amendment Coalition President Richard McKee, had established a right to attorney fees under the Ralph M. Brown Act. Los Angeles Superior Court Judge Dzintra Janavs erred, both legally and factually, in holding otherwise, the court said.

Janavs ruled in 2002 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, but said the plaintiffs were not entitled to fees because the county would have cured the violations without being sued.

The Brown Act requires all deliberations of local public government bodies in California to be conducted in public, unless they concern litigation or personnel matters. It also prohibits members of local 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.

Janavs, in denying the motion for attorney fees, found 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.

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.

In another conference action, the justices voted 6-0 to depublish the opinion of this district’s Div. Seven in Dixon v. Regents of University of California (2003) 112 Cal. App. 4th 1062. The panel held that a former UCLA medical resident who had spent more than two years in an unresolved internal grievance process after being denied a second year of residency was not barred by the exhaustion doctrine from suing the university.

It would have been would have been “idle, futile and practically useless” for Dixon to continue to press his appeal in the university process, Los Angeles Superior Court Judge Aurelio Munoz, sitting on assignment, wrote. The process, Munoz said, had gone forward “in fits and starts” through no fault of Dixon, with only 11 partial out of 26 days of scheduled hearings taking place before Dixon filed suit and declared that he would no longer participate.

While the court agreed to remove the precedential value of the opinion, no justice voted to grant the university’s request for review.

Attorneys on appeal were Melanie Lomax for the plaintiff and Lewis Brisbois Bisgaard & Smith’s Alan R. Zuckerman and Keri Lynn Bush for the university.