Legal Alerts Jun 02, 2016

Court Clarifies the “Cease & Desist” Requirement Prior to Initiating Brown Act Litigation

City’s Loss Illustrates Risks of Litigating Open Meeting Law Violation Claims

Court Clarifies the “Cease & Desist” Requirement Prior to Initiating Brown Act Litigation

In 2012 the California Legislature amended the judicial remedies aspect of the Brown Act “Opening Meetings” Law. That amendment added section 54960.2 to the Government Code to require that a party seeking a judicial remedy for a past action of a legislative body alleged to be in violation of the Brown Act must first submit to that body a cease and desist letter. If the legislative body responds with an unconditional commitment to cease and desist from, and not repeat, the alleged violation, then a judicial remedy is foreclosed. In other words, the cease and desist letter is a pre-requisite to initiating a judicial action to stop or prevent past violations of the Act.

The City Council of San Diego regularly meets on Mondays and Tuesdays in a two-day regular meeting, which the City considered to be a single meeting. Pursuant to a city ordinance, only one non-agenda public comment period, required by the Brown Act, was afforded — on Tuesday mornings. Without providing a cease and desist letter, the Center for Local Government Accountability brought suit against the City asserting its single, non-agenda public comment practice violated the Brown Act. After the action was filed, the City changed course and adopted an ordinance providing for non-agenda public comment periods on both Mondays and Tuesdays.

The City demurred to the complaint, first asserting that the Center had failed to satisfy the cease and desist letter requirement of section 54960.2, and second that the complaint was moot, as the City had changed its ordinance to provide for two public comment periods — one each day. The trial court sustained the demurrer, dismissed the action and the Center appealed.

The Court of Appeal, in a decision issued in Center for Local Government Accountability v. City of San Diego on May 31, reversed the trial court order. First, the appellate court found that the cease and desist letter requirement applied only to actions seeking a remedy solely for a past action of a legislative body. (The trial court had concluded that it applied to both past actions and future threatened actions.) The appellate court found that the Center’s complaint was focused on the one non-agenda comment period ordinance and practice, which extended to all council meetings, including those in the future. Therefore, the complaint sought a remedy for future threatened actions and the cease and desist letter requirement did not apply.

Finally, the court rejected the City’s contention that the enactment of the new ordinance providing for a non-agenda public comment period on both days of the Council’s meetings rendered the lawsuit moot. The court noted that the City continued to insist that its two-day meeting regime was in fact one continuous meeting, rather than two separate meetings, and refused to concede that its prior practice of a single non-agenda public comment period violated the Brown Act. (One of the conditions of the “unconditional commitment” to cease and desist is a confession that the Act had been violated.) Reasoning that the City could easily resurrect its prior ordinance, the court allowed the Center to return to the trial court, amend its complaint, and seek a judicial determination that the one non-agenda comment period practice violated the Brown Act.

This case illustrates the risks of Brown Act litigation for legislative bodies. Indeed, the City here appears to have lost the battle and lost the war, and will most likely be tagged with the Center’s attorney’s fees, as well as costs, which the appellate court ordered it to pay.

If you have any questions about this opinion or how it may impact your local agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

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