In response to the petition, the City argued the Brown Act requires only the opportunity to address a special meeting of a legislative body before it takes action. Since Preven spoke before the special city council meeting at the PLUM committee meeting, the City asserted it could bar Preven from addressing the full council on the same topic. The trial court agreed, sustained the City's demurrer without leave to amend, and entered a judgment of dismissal.
For the reasons set forth below, we find Preven has stated a claim for a writ of mandate and declaratory relief with regard to the Brown Act. We accordingly reverse the judgment of dismissal as to that count. Given Preven's concession that he is not suing to enforce the CPRA, and did not make any request for records pursuant to it, we affirm the trial court's dismissal of the CPRA count as duplicative of his Brown Act claim.
BACKGROUND
When " 'reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we ... assume the truth of all facts properly pleaded' " in the operative petition, " 'as well as those
On December 15, 2015, the PLUM committee held an open meeting. That committee consists of five members of the fifteen-member city council. Agenda item 5 for the meeting concerned a recommendation to the full city council on a proposed real estate development near Preven's residence. The committee listened to comment from members of the public, including Preven, and voted unanimously to make a report and recommendation of approval to the full city council.
The following day, December 16, 2015, a special meeting of the city council was held to decide (among other things) whether to approve the recommendation of the PLUM committee on the real estate development. Preven knew this special meeting was scheduled to take place when he attended the December 15th PLUM committee meeting. Preven attended the
On September 14, 2016, Preven delivered a cease and desist demand letter to the City Clerk.
DISCUSSION
"[W]e review the [operative petition] de novo to determine whether it alleges facts stating a cause of action under any legal theory." ( Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013)
A. The Brown Act
"The purpose of the Brown Act is to facilitate public participation in local government decisions and to curb misuse of the democratic process by secret legislation." ( Boyle v. City of Redondo Beach (1999)
1. Regular Versus Special Meetings
The Brown Act distinguishes between regular and special meetings of a legislative body. Legislative bodies must determine a regular time and place for holding their meetings. (§ 54954, subd. (a).) Regular meetings must be
However, the legislative body does need not provide an opportunity for public comment at a regular meeting: "on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body." (§ 54953.3(a).)
The parties refer to this as the "committee exception," and we likewise use that terminology for ease of reference.
Special meetings, on the other hand, may be called at any time by the presiding officer or a majority of the members of a legislative body no less than 24 hours in advance of the meeting, and upon certain specified notice requirements including notice of "the business to be transacted or discussed." (§ 54956, subd. (a).) The agenda posting exceptions listed in section 54954.2, subdivision (b) do not apply to special meetings, and no business beyond that set forth in the notice "shall be considered" at a special meeting. (§ 54956, subd. (a).) The scope of public comment is similarly delimited to items noticed for the special meeting. Instead of being able to address any item of interest within the legislative body's subject matter jurisdiction, the public has a right to address a special meeting on "any item that has been described in the notice for the meeting." (§ 54954.3(a).) As with general meetings, the public must be given the opportunity to address the legislative body "before or during consideration" of the agenda item. (Ibid .)
2. The Trial Court's Ruling
In sustaining the City's demurrer, the trial court held that the Brown Act does not establish different public participation rules for special meetings and regular meetings, especially where an individual already had an opportunity to address a committee on the item in question. After granting leave to amend
3. The Committee Exception Does Not Apply to Special Meetings
The trial court's holding that the committee exception in section 54954.3(a) applies to special meetings was error. Indeed, before us, the City concedes the committee exception applies only to regular meetings. "Under general settled canons of statutory construction, we ascertain the Legislature's intent in order to effectuate the law's purpose." (
It is a general rule of statutory construction that modifying phrases are to be applied to the words immediately preceding them. ( People v. Corey (1978)
"Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body's consideration of the item, that is within the subject matter jurisdiction of the legislative body, provided that no action shall be taken on any item not appearing on the agenda unless the action is otherwise authorized by subdivision (b) of Section 54954.2.
"However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee's consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.
"Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any
The plain language of section 54954.3(a) specifies that the committee exception applies to only to regular meetings. " 'If the statutory language is clear and unambiguous, our inquiry ends.' " ( Kirby , supra ,
4. "Before" Cannot Be Read to Create a Committee Exception for Special Meetings
Instead of arguing section 54954.3(a)'s committee exception applies to special meetings, the City claims it complied with the Brown Act because section 54954.3(a) requires the opportunity for public comment "before ... consideration" of the special meeting agenda item, and Preven was given the opportunity to comment before the special city council meeting at the PLUM committee meeting the preceding day. We do not agree that section 54954.3(a)'s language requiring the opportunity for public comment "before ... consideration" by a legislative body at a special meeting can be construed so broadly.
A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect and not be treated as meaningless unless absolutely necessary. " '[A] construction that renders a word surplusage should be
As a fallback, the City tries to analogize the facts here to one continuous meeting over several days, citing
5. The Legislative History Indicates that the Word "Before" in Section 54954.3(a) Does Not Refer to Prior, Separate Committee Meetings
Given the potential ambiguity in section 54954.3(a) over whether the required opportunity for public comment "before" a legislative body takes action at a special meeting includes comment at a prior separate meeting, or is limited to the timing of public comment within the special meeting itself, we also consider the legislative history of section 54954.3(a). ( Nolan v. City of Anaheim (2004)
a. Regular Meeting Provisions: 1953-1991
As originally enacted in 1953, the Brown Act did not require the opportunity for public comment at either regular or special meetings. (Stats. 1953, ch. 1588, § 1.) In 1986, the Act was amended to include a public comment requirement for regular meetings. The Legislature also created an exception to such public comment at regular meetings of a city council or board of supervisors where the public had previously addressed a committee of the council or board on the agenda item. (Stats. 1986, ch. 641, § 6.)
In 1991-after the enactment of the committee exception for regular meetings-the Act was amended to require public comment at regular meetings of all legislative bodies (including city council and board of supervisor meetings) occur "before or during" consideration by the legislative body or committee of the item. (Stats. 1991, ch. 66, § 1.)
As shown by this chronology, the "before" language for regular meetings was
b. Special Meeting Provisions: 1993-1994
It was not until 1993 that the Legislature required an opportunity for public comment at special meetings of legislative bodies. (Stats. 1993, ch. 1136 (Assem. Bill No. 1426) § 9; ch. 1137 (Sen. Bill No. 36) § 9.) In that year, the Legislature added a sentence at the end of section 54954.3(a) stating "Every notice for a special meeting at which action is proposed to be taken on an item shall provide an opportunity for members of the public to directly address the legislative body concerning that item prior to action on the item." (Ibid .)
Preven submitted evidence below indicating one suggested amendment to the 1993 Senate Bill included a committee exception for special meetings, which the Legislature ultimately did not include. The available legislative history provides no indication as to why this proposed committee exception for special meetings was not included in the final bill. This draft amendment, however, does highlight the obvious point that if the Legislature wanted to create a committee-like exception for special meetings, it knew how to say so clearly. That fact that the Legislature chose not to do so is evidence of its intent not to create the type of exception urged by the City. ( People v. Tilbury (1991)
Finally, in 1994, the special meeting language in section 54954.3(a) was amended into its current form to parallel more closely the first sentence of that section requiring public comment at regular meetings occur "before or during" consideration by the legislative body. (Stats. 1994, ch. 32, § 9.)
This legislative history shows that section 54954.3(a)'s current requirement that the public be allowed to address a special meeting "before or during" consideration of an agenda item has the same meaning as similar "before or during" language did when it was enacted in 1991 for general meetings. The "before or during" language concerns the timing of comments within a particular meeting, and does operate to restrict comment based on a prior distinct meeting.
The City argues this construction would lead to absurd results by leading to different
Given the plain language of the statute, and its legislative history, we find the Brown Act does not permit limiting comment at special city council meetings based on comments at prior, distinct committee meetings. Preven adequately alleged a claim that he was improperly denied the opportunity to comment on the agenda item at a special meeting. Preven also adequately alleged a pattern of conduct by the City at special city council meetings in violation of the Brown Act. He therefore stated a claim in his amended petition for a writ of mandate and complaint for declaratory relief under the Brown Act.
B. Preven Failed to State a Claim Under the CPRA
In addition to his Brown Act claim, Preven brought a second cause of action for declaratory relief and a writ of mandate under the CPRA to enforce his right to address the city council. Preven concedes that he is not suing to enforce the CPRA, and did not make a request for records pursuant to the
When a demurrer is sustained without leave to amend, we look to see "whether there is a reasonable possibility that the defect can be cured by amendment." ( City of Dinuba v. County of Tulare (2007)
DISPOSITION
The judgment of dismissal is reversed. The matter is remanded for further proceedings consistent with this opinion. The parties are to bear their own costs on appeal.
We concur:
CHANEY, J., Acting P. J.
BENDIX, J.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All statutory references are to the Government Code.
The sending of such a demand letter is required prior to pursuing litigation under the Brown Act to permit the legislative body the opportunity to commit not to repeat the actions alleged to be in violation of the Act. (§ 54960.2.)
The changes from the 1993 language were as follows: Every notice for a special meeting at which action is proposed to be taken on an item shall provide an opportunity for members of the public to directly address the legislative body concerning any that item prior to action on the itemthat has been described in the notice for the meeting before or during consideration of that item.