*1 June S069688. 1999.] [No. al., et CALIFORNIA OF THE UNIVERSITY OF
THE REGENTS Petitioners, v. COUNTY OF SAN OF THE CITY AND
THE SUPERIOR COURT FRANCISCO, Respondent; al., in Interest. et Real Parties
TIM MOLLOY *4 Counsel Larsen,
Orrick, Sutcliffe, Adam Outride and Herrington Cynthia Lynn & J. Davis, Trinka Emce for Petitioner as Governor. Gray Blair; Morrison; Holst; E. F. A. Gary Jeffrey James John Lundberg; University Patti for Petitioner the Regents and M. Christopher California.
No for appearance Respondent. California, Rosenbaum, Mark D. Daniel
ACLU Foundation of Southern California, ACLU Foundation Northern Eliasberg; P. Peter Tokaji, Wheaton; Pritzker; Chen; Manheim; Beth Elizabeth Karl James E. Edward Thukral; Paterson; Parker; Michael Harris for Real Eva J. and H. Juhu Parties in Interest. Falconer, Koltun for California & R. and Joshua Roger Myers
Steinhart Press, Inc., Times, Los Angeles News Community Corporation, Copley Pulitzer Community the McClatchy Press-Enterprise Company, Company, News, Inc., Examiner, Cali- San Jose Mercury San Francisco Newspapers, Coalition, Publishers Asso- fornia First Amendment California Newspaper Press, ciation, of Profes- Society Committee for Freedom Reporters Francisco State (Northern sional Journalists California San Chapter) behalf of Real Parties Journalism as Amici Curiae on University Department in Interest.
Rothner, Greenstone, for & Glenn Rothner and Julia Harumi Mass Segall Association, Association, California Teachers California American Faculty State, Federation of Service County Employ- Municipal Employees Real in Interest. ees International Union as Amici Curiae on behalf of Parties on behalf of Real Parties Ulrich Common Cause as Amicus Curiae Roy in Interest.
Opinion *5 MOSK, J. (hereafter Act sometimes the Bagley-Keene Open Meeting The Code,1 act), at which is set out section 11120 et of the Government seq. the conduct of state bodies and on such bodies various governs imposes notice of their obligations, must including generally give prior meet- to section and must cause such meetings, pursuant generally to be 11123. to section ings open pursuant public, of review in this cause to address two granted We important questions first impression. (a)
One concerns the subdivision of by action question right granted (hereafter 11130(a)): section 11130 section interested “[A]ny person may mandamus, or relief for the declaratory commence an action by injunction, or threatened violations of’ violations purpose stopping preventing act or threatened act “or to determine the of’ the “to actions applicability action future action members of’ a “state . . . .” Does this by body right extend and future actions and violations and not ones? present past noted, all references to sections are to the Government Code.
1Except (a) subdivision The other concerns the right granted by question 11130.3(a)): interested (hereafter of section 11130.3 “Any mandamus, action relief for declaratory commence an by injunction, that an action taken a by determination obtaining judicial purpose notice or state in violation of’ act’s open-and-public-meeting action such a judicial is “null and void .... Any seeking requirement from the date the action determination shall be commenced within 30 days statute of limitations taken.” Is this of action limited 30-day contained therein? to each of these
As we shall we conclude that answer explain, is affirmative. questions
I are a with full of California Regents University corporation over the organization government university, subject only powers Const., IX, 9, (a).) The (Cal. control art. subd. Legislature. specified § (Ibid.) of 25 members. It is in the form of a board composed corporation officio, Governor, and numbers seven members ex including eighteen (ibid.)— members the Governor and Senate approved by appointed discretion, member or a student member in their may, faculty who appoint IX, 9, (id., (c)). or both art. subd. notice, held an Regents
On July having given prior listed on their At that in order to consider two items agenda. public meeting members, Gomez, time, P. the board Edward including comprised members, Of the 26 had been the other members. student who appointed SP-1, entitled of Resolu- One of the items was “Adoption were present. Treatment—Admissions,” which, other among tion: Policy Ensuring Equal *6 race, sex, color, the from university “us[ing] religion, would things, prohibit or to [ujniversity as criteria for admission to the or national ethnicity, origin The other of the items was of effective 1997. study,” January any program SP-2, Treatment— Ensuring entitled of Resolution: Policy Equal “Adoption (or and Contracting),” Practices and Employment Business Employment which, the from university other would things, similarly prohibit among sex, color, race, as criteria in or national ethnicity, origin “us[ing] religion, effective 1996. January and contracting its employment practices,” deliberations, the Regents approved hours. Following Y2¥i meeting spanned abstention, SP-2, a of to 10 with 1 the both SP-1 and the former on vote a latter on vote of 15 to 10.2 later, 16, 1996, months Tim and the Molloy
On almost seven February the (hereafter Nexus filed a in Daily collectively Molloy) complaint Superior the includ- Court of the and of San Francisco City County against Regents, (hereafter Pete in as a regent Governor Wilson his ing, specifically, capacity a and a staff the identified himself as collectively Regents); Molloy taxpayer Nexus, and editor of the and the Nexus Daily Daily reporter campus students, a identified itself as student-run the serving faculty, newspaper California, staff of the of Santa Barbara. University asserted a cause of action the on a Molloy first based against Regents, the violation of its notice Bagley-Keene Open Act—specifically, substance, that, He in open-and-public-meeting requirements. alleged, 20, 1995, to the noticed and prior the public meeting July made a Regents collective commitment or to SP-1 and promise approve SP-2, at a of at least a the “meeting” board’s members conducted quorum3 communications, in secret a series of one-to-one and other through telephone action, each initiated the Governor. For a he relied on impliedly end, 11130(a). what now section To the same he on also relied expressly 11130.3(a). of an that affirmative defense based on anticipation limitations, statute of he undertook to provision’s 30-day invoke against Regents doctrine that a defendant who has a concealed fraudulently defense, cause of action be from such equitably estopped raising 3, 1995, to alleging, effect: On he pertinent part, following August office; call to the placed Governor’s he asked an uniden- telephone press tified whether the person Governor had or other communications telephone 20, 1995; with other regents SP-1 and SP-2 regarding July prior denial; months, unidentified with a over he responded following submitted 28 Governor under the California Public requests Records Act, which is set out at section et disclosure of seq., seeking public records communications relating Governor with other telephone disclosure; 17, 1996, regents; the Governor refused on response, January Election, 2Subsequently, at the November General approved voters an initiative designated constitutional Proposition amendment that was on the ballot as The measure 209. Constitution, (a) added section 31 to article I of the California which declares in subdivision State”—including University against, of California—“shall discriminate “[t]he to, race, sex, color, grant preferential group treatment individual or on the basis of education, ethnicity, origin operation public employment, or national in the public contracting.” quorum regular meeting Regents, (Bylaws 3Nine is a a special twelve for one. Cal., 16.3.) Regents bylaw of U. of No. *7 disclosure, the given Governor’s several he was through responses refusing at reason to believe that the Governor had contacted least 10 other regents the resolutions. concerning proposed action, Governor, of the on asserted a second cause based
Molloy against of Public He alleged a violation the California Records Act. his 28 requests the Governor disclosure records to to of seeking relating telephone public communications the Governor other the Governor’s regents, and action, refusal of such For a he relied 6258: right of on section requests. relief or institute declarative “Any person proceedings injunctive to her writ of mandate in court of enforce his or jurisdiction any competent to to receive a record or class of right of inspect copy any public public under records” this act. action,
As for the Act cause Molloy of Bagley-Keene Open Meeting (1) relief that the the act sought Regents declaration violated including: SP-2, commitment or to SP-1 and making promise prior collective approve the noticed and of at the July alleged to and open public meeting members, the secret serial of at least a board’s “meeting” quorum Governor; (2) a declaration that the including Regents’ approval at null resolutions the noticed and and 20 was meeting July public void; and and an (3) Regents from injunction prohibiting implementing either of resolutions on that each was null and void. ground action, sought As for the Public Records Act cause of Molloy California act (1) relief a declaration that the Governor violated the including: his 28 records seeking relating disclosure refusing requests public other an communications Governor with regents; telephone the Governor to such records. disclose injunction requiring the board as demurred to an Regents entity complaint, as one so in but complemen- Governor of its members each doing separate that Act submissions. tary They objected Bagley-Keene Open action part, they argued cause of did not state sufficient facts. pertinent that, did not right the effect under the facts have alleged, Molloy his action 11130.3(a) because he commenced action to section pursuant almost statute limitations had six after the provision’s thirty-day months run; that limitations the doctrine of fraudulent statute of precluded so, concealment; that, not do doctrine would even if the statute did however, mention, in this made no be available case. They nevertheless 11130(a). They he as to whether had any pursuant action did California Records Act cause of that the Public similarly objected *8 that, to the effect argued not state sufficient facts. In pertinent part, they to communica- under the facts record alleged, any relating telephone public from disclosure under tions the Governor with other regents exempt official-information, and Governor’s legislative, deliberative-process, correspondence privileges.
The court issued an order the demurrers. It overruling rejected superior Act cause of action that the Regents’ objection Bagley-Keene Open Meeting did not state sufficient facts. In it concluded to the effect that pertinent part, 11130.3(a)’s section statute of limitations did not 30-day preclude concealment, doctrine of fraudulent and that the whether the doc- question trine was available in this case facts beyond implicated complaint, hence could not be resolved on demurrer. It also their that objection rejected the California Public Records Act cause of action did not state sufficient facts. In it concluded to the effect that the whether pertinent part, question record communications the Governor any public relating telephone with other regents was from disclosure under the deliberative- exempt official-information, legislative, or Governor’s process, correspondence facts privilege implicated beyond review of complaint, perhaps entailing camera, such records in and hence could not be resolved on demurrer. demurrers, court’s order Challenging their superior overruling the Court Regents for the First District for a petitioned Appeal Appellate mandate, writ of the board as an and the Governor as one of its entity therewith, members so in a doing submission. In joint conjunction they of all requested stay below lite. proceedings pendente District, Division Three of the Court of for the First Appeal Appellate which the matter was assigned, denied the It summarily Regents’ petition. also refused their stay request.
The Regents us for review in a submission the board petitioned joint and the Governor. We denied their application. then Regents answered the but complaint separate complementary
submissions the board and the Governor. other as for the Among things, action, Act Bagley-Keene cause of denied that Open Meeting they impliedly addition, had Molloy any right 11130.3(a); to section pursuant raised, defense, as an affirmative action that they expressly any right he had may have thereunder he had no because he commenced his longer action almost six months after the statute of limita- provision’s thirty-day run; tions had but did not make mention of they any pertinent any 11130(a). action that he have had As for the pursuant action, that California Public Records Act cause of asserted *9 to communications the Governor with other record relating telephone the was from disclosure under deliberative- regents exempt (apparently) official-information, and Governor’s legislative, correspondence process, privileges. to the
The moved for as Regents summary adjudication Bagley-Keene the and the Act cause of action in a submission board Meeting joint Open Governor. the court issued an order the motion. denying Evidently, superior
After the taking Regents summary judg- moved Molloy’s deposition, ment, the board and the Governor. On the in submission again joint action, claimed that there Act cause of Bagley-Keene Open Meeting they fact and that entitled to judgment was no triable issue of material were they facts, that, as a matter of law. In under they argued undisputed support, 11130(a) action to section did not have Molloy any right pursuant because, effect, and future actions extends to provision present that, and violations and not ones. also under the argued past They undisputed facts, 11130.3(a) action to section he did not have any right pursuant action six months after the because he commenced his almost provision’s run; had that that statute of limitations statute of limitations thirty-day concealment; that, the doctrine of fraudulent even if precluded so, in this case. statute did not do the doctrine was nevertheless available included the derived following, The facts referred to above undisputed Both before and after July from directly indirectly Molloy’s deposition: obtained information on the existence or nonex- bearing Molloy to istence of a collective commitment or Regents approve promise SP-2, 20, the noticed and meeting July SP-1 and to prior public at the of at least a of the board’s secret serial alleged “meeting” quorum members, Governor; and after he July both before including pub- authored contributed to. Among lished such information in articles that he vote, to Gomez told Regent such information was this: On July prior for a admitted: set. been set “They’re They’ve himself Molloy, Molloy vote, Gomez told Molloy, Also on July following Regent while.” Ten-fifteen “Staged. every to own admission: again according Molloy’s [sic] Public On the California time. Old versus new single boys progressives.” action, claimed that there was no triable Records Act cause of they similarly entitled as a matter of of material fact and that were they judgment issue relating record argued telephone law. In they support, from the Governor with other regents exempt communications by text, they on a vote of 15 to although Regents approved SP-2 4As noted in the approved on a vote of 14 to 10 with 1 abstention. SP-1 official-information, legislative, under the deliberative-process, disclosure and Governor’s correspondence privileges. the Regents’ summary judg- court issued an order denying superior entitled to as a matter judgment
ment motion. It concluded that were not Act cause of action. of law on Molloy’s Bagley-Keene Open 11130(a), it of action to section Without considering any right pursuant determined, substance, of material fact that there was a triable issue 11130.3(a). It recognized he had a whether pursuant *10 months after the that he commenced his action almost six provision’s Nevertheless, it that that statute of limitations had run. believed thirty-day of limitations did not the doctrine of fraudulent conceal- statute preclude in this case to toll ment. It also believed that the doctrine be available might later. the statute the of the almost six months through filing complaint Act Meeting Because its conclusion on Molloy’s Bagley-Keene Open action, cause of it did not reach his California Public Records Act cause of action. their court’s order
Challenging superior denying summary judgment motion, the the Court of for the First Regents petitioned Appeal Appellate District for a the board and the writ of mandate in submission joint Governor. mandate, Three of the advance of writ of Division any peremptory District,
Court of for this matter too the First to which Appeal Appellate caused issuance of an alternative writ. in an assigned, Subsequently, opinion not certified the alternative it rendered publication, judgment discharging as At the writ insofar it writ. denying petition sought peremptory threshold, order denying it concluded that the court’s superior impliedly motion, and its resolution of the Regents’ underlying summary judgment issues, On the were review. statutory-construction subject independent merits, It concluded that the Regents it court’s order. superior upheld a matter of on Molloy’s Bagley-Keene were not entitled as law judgment determined, substance, that, It under Act cause of action. Open Meeting facts, 11130(a). had a of action to section It he undisputed right pursuant that that action extends to actions and violations as believed past substance, that, determined, ones. But it also well as future present facts, action under the he did not have any right pursuant undisputed 11130.3(a). that that provi- section It assumed for purpose analysis of fraudu- sion’s statute of limitations did not doctrine 30-day preclude But, court, concealment. unlike the it believed that the doctrine lent superior almost was not available to toll the statute through filing complaint six months later. Because of its conclusion on Molloy’s Bagley-Keene Open action, Act cause of it did not reach his California Public Records Meeting Act cause of action. us for in a submission the board review Regents petitioned joint
and the their Governor. We We now reverse. granted application.
II Before address the under the arising Bagley-Keene we questions Open 11130(a) Act to the section relating rights granted by 11130.3(a), of the act that bear on the we must review provisions answers.
A Legislature Bagley-Keene Open Meeting Act, Tn enacted the subsequently entitled, govern it was in order to the conduct of state bodies impose obligations, including and to on such bodies various must generally give prior meetings generally *11 notice of their and must cause such meetings open public. (Stats. 1967, 1656, 122, p. § to be and ch. 4026 et seq.)5 11120, In the act has declared since its enactment as follows: “It is section of this state that exist to aid in the conduct agencies public policy public and the be conducted agencies business people’s proceedings public HQ so that the remain informed. . . . is the intent of may openly public [I]t be taken and that their delib- the law that actions of state agencies openly 1967, 1656, 122, 4026.) (Stats. eration be conducted ch. In p. openly.” § 1981, declare in addition: “The of this state do not it was amended to people to the which serve them. The their yield sovereignty agencies people, not their servants the to decide do delegating authority, give them to for the to know and what is not know. good good what people informed so that retain control over they may The insist on remaining people 1981, 968, 4, 3683.) (Stats. created.” ch. p. instruments have they § “ 11122, act, enacted, ‘[Ajction In as originally provided: of a state agency, taken’ means a collective decision made members by 1953, Act, Bagley-Keene Legislature had enacted the prior Open 5 In to the entitled, Act), (hereafter subsequently as it was which is set Ralph M. Brown Act Brown govern legislative bodies of local seq., et in order to the conduct out at section 54950 including generally obligations, must agencies impose and to on such bodies various generally meetings open to be give meetings and must cause such prior notice of their 1953, 1588, 1, (Stats. seq.) et statutes are similar in some public. p. ch. two § respects and dissimilar in others. the members of the state agency a collective commitment or promise by the members of or decision or an actual vote negative make positive motion, as a or entity proposal, state when agency sitting upon 1656, 122, 1967, resolution, 4026.) (Stats. action.” ch. p. order or similar § 1981, (ibid.) “agency” In it amended into its form to replace was present 968, 7.3, 1981, (Stats. 3685). ch. with “body” p. § enactment, bodies to give its the act has state generally Since required 1967, (Stats. ch. notice of their to section 11125 meetings, prior pursuant 122, 1656, 4026), to cause such to be meetings p. public, § 1967, 1656, 122, 4026). (Stats. to section 11123 ch. pursuant p. § act, 11130, enacted, interested In section as originally provided: “Any commence an action either mandamus or for the injunction person may or violations or threatened violations of’ the purpose stopping preventing 1967, 1656, 122, (Stats. act members of’ a “state ch. “by agency.” p. § 1969, 4028.) In it was amended: interested commence an “Any mandamus, action relief for the injunction, declaratory purpose violations or threatened violations of’ the act “or to stopping preventing determine of’ the act “to actions or threatened future action applicability 1969, 494, 1, (Stats. 1106.) members of’ a “state ch. In agency.” p. § 1981, (ibid.) (Stats. it further was amended replace “agency” “body” 1981, 1997, 3693). ch. substantial change without p. § it amended into form under was its its pertinent part, present present 1997, 949, 11130(a). (Stats. as section designation ch. § Section 11130.3 of the act enacted. In it part originally (Stats. was added ch. et and has never been seq.), amended. It provides: *12 mandamus,
“(a) interested commence an action Any may person or relief for the a injunction, declaratory obtaining judicial purpose determination that an action taken a state in violation of’ the act’s body notice or is “null and void .... open-and-public-meeting Any requirement action such a be seeking determination shall commenced within 30 judicial from date the action was taken. in this section shall be days Nothing construed to a state from or an action prevent body curing correcting to this section. challenged pursuant
“(b) An action shall not be determined to be null and if any void conditions exist: following notes,
“(1) The action taken was in connection with the sale or issuance of bonds, contract, instrument, or other evidences of or indebtedness any related thereto. agreement
“(2) The action taken rise to a contractual which gave obligation upon faith, has, relied. party good detrimentally notice The action taken in substantial with act’s “(3) was compliance [the and open-and-public-meeting requirements].
“(4) The action taken in connection with the collection of tax.” any section was not of the act as enacted. In originally 11130.7 Similarly, part 1980, it was added to “Each member of a state who attends agency provide; act, of such of’ the “with violation meeting agency provision thereof, of the fact that the is in violation is knowledge meeting guilty 1980, 1284, 16, 1981, (Stats. 4341.) misdemeanor.” ch. it was p. § 968, 22, {ibid.) (Stats. amended to ch. “agency” “body” replace § “Each of a 3693). In it was amended into its form: member present state who attends a of that in violation of meeting body any provision act, of’ the “and where the member intends to public deprive information to which the member knows or has reason to know the is act, (Stats. of a misdemeanor.” ch. guilty entitled under” “is
B The first before us is whether the right granted question 11130(a) under the Act extends Bagley-Keene only Open and not ones. and future actions violations present past itself, 11130(a) on section we are of the that the answer Focusing opinion of action does indeed extend affirmative: provision’s and future actions and violations and not ones. present past 11130(a) commence an Section states that interested “any threatened action ... violations or purpose stopping preventing act members of’ a “state or “to determine” body,” violations of’ the “by future action” such act’s ... to actions or threatened “applicability persons. *13 for its on whether it 11130(a)’s
Section of action extent right depends future actions and violations. refers to and/or and/or past present the 11130(a)’s “[A]ny section toward right points Plainly, future: . . . action ... for the interested commence an may purpose person of’ a “state of’ the act members “by . . . threatened violations preventing determine” . threatened or “to the act’s . . . to . . body,” “applicability added.) In it (Italics action” such this covers regard, persons. future that are occur. yet violations actions to 11130(a)’s of action also toward
Almost as section right points plainly, an action for the the interested commence ... “[A]ny present: of the act members of’ a “state . . . violations” stopping “by purpose the ... to actions” such or “to determine” act’s body,” “applicability (Italics added.). In this it covers violations and actions that regard, persons are both discrete instances and or occurring, including continuing patterns practices. contrast, 11130(a)’s section of action does not toward the
By point or past, otherwise. plainly
The 11130(a) of section Insofar as it language argues against past. deals with threatened violations” of the act and “preventing “determining” action,” its to threatened future its focus is “applicability on explicitly future. Insofar as it deals with violations” of the act and “deter- “stopping actions,” its to its focus is on the mining” “applicability implicitly present. violations,” it shows its orientation phrase “stopping by usage. present “violations,” One speaks but not ones. In the “stopping” present past actions,” to it phrase “determining shows its orientation applicability present modification, context. Without the noun express adjectival “actions” may indeed be to modification. Its textual subject are the implied surroundings future, allusion, and the without reference or present express implied, Had the meant Legislature to include the it would have past. past, taken,” which, made itself in the plain, likely through “actions phrase singular, (See time and the act. appears, again, throughout §§ 11125.2, 11125.5, 11125.6, (c) (d), (d), (a)(2) subds. & subd. subds. 11126.3, sure, (f)(8), & (f), 11130.3.) subd. It did not do so. To be it might have used “actions” without modification to refer to the as well as past But that it than any evidence did is no more present. actually conjecture speculation. 11130(a) operation brings argument against past conclusion. Insofar as it concerns itself with the persuasive present of the act and its violations”
“stopping “determining” “applicability actions,” it relief. The same true insofar as it concerns offers effective itself with the future threatened violations” of the act and by “preventing be its to threatened future action.” It would “determining” “applicability if it concerned itself cannot otherwise One past. “stop” “prevent” *14 act, relief and hence cannot whatsoever provide any “violations” past can, however, “determine” or ineffective. One whether effective thereby, “action”—but to end? There is no act to a what past was “applicable” 11130(a) under section is a indication that such a determination prerequisite and voidance of an action taken a state to an action nullification seeking the act’s notice or require- in violation of body open-and-public-meeting be Neither ment: an action of this sort may evidently brought independently. 11130(a) determination under section is there indication that such indi- criminal under section 11130.7 against to a prosecution prerequisite of this sort of the state a criminal body: prosecution may vidual members An action a bare “determina- seeking be instituted evidently independently. characterized, to a “action” be might tion” that the act was “applicable” past the state in and its as a means to “educate” question positively, or, for them to subjecting members as a device negatively, individual characterized, however, it be No matter how it is would “harassment.” to inutile. The could choose Legislature conceivably provide substantially all that relief this kind—relief in but not From we reality. appearance discern, so here. can it did not do 11130(a) itself to its we find legislative history, section
Looking beyond that the of action extends confirmation for our conclusion provision’s right and not ones. to and future actions violations past present 1967, that, 11130, act, enacted in Recall in section as originally either interested commence an action man- may “Any person provided: or violations or damus or for the injunction purpose stopping preventing (Stats. of’ a agency.” of’ the act members “state “by threatened violations 1967, ch. p. § 1969, William T. one of the authors
In Member of the Assembly Bagley, 2297, act, Regular authored Bill No. Assembly of the eponymous 2297). (hereafter sometimes Bill No. Assembly Session introduced, have Bill No. would pertinent part, As Assembly an interested commence to “Any added provide: mandamus, for the or or relief declaratory purpose action by injunction act to threatened violations of’ the “or violations or stopping preventing future action of’ the act “to the or threatened past determine the applicability (1969 Sess.) (Assem. Reg. Bill No. 2297 actions of’ a “legislative body.” actions, 8, 1969, 1, added.) although It referred to italics past Apr. addition, have added section which it would violations. past actions, pertinent violations as well past provide, referred past
525 (1) commence that: General an “action in part, Attorney may quo warranto ... for the removal from office” of member of a state “any who attended at which was “taken in violation agency” “meeting action” act, thereof; of’ the “with that the was “in knowledge meeting” violation” the “court set aside action taken at a in may any violation meeting 8, 1969, 2, (Assem. (1969 of’ the act. Bill Sess.) No. 2297 Reg. Apr. pp. § 1-2.) 2297,
As amended in the subsequently Bill No. in Assembly, Assembly would have amended pertinent section 11130 to inter- part, provide: “Any mandamus, ested commence an action person may or declara- injunction, relief for the tory or purpose violations or threatened stopping preventing violations of’ the act “or to determine the of’ the act “to the applicability or threatened past future action or actions members of’ a “state agency.” Amend, (Assem. 21, 1969, (1969 to Assem. Bill Sess.) No. 2297 Reg. May 1, 2, added.) addition, italics p. It continued to refer to § actions. it past 11131, would have added section which was section 11132 renumbered— but without reference any whatsoever to the suffered deletion of having past, its provisions warranto actions and the quo aside of action taken setting in violation of the act. time, 2297,
As amended in the Senate for the first Bill No. in Assembly now in section pertinent part, provided 11130: interested “Any mandamus, commence an action or injunction, relief for the declaratory purpose stopping violations or threatened violations of’ the preventing act “or to determine the of’ the act “to actions or threatened applicability Amend, future action (Sen. members of’ “state agency.” Assem. Bill 6, 1969, 1, (1969 Sess.) No. 1.) 2297 June It Reg. no referred to p. longer § actions, lost the deletion. past having adjective “past” through time, As amended in the Senate for the second and final Bill Assembly 2297, No. continued to in section as it had pertinent part, 11130 provide without provided previously, reference to actions or even to the any past past Amend, (Sen. 13, at all. (1969 to Assem. Bill Sess.) No. 2297 June Reg. 1969, 1, p. § twice,
In the years following 11130 was amended once in (Stats. ch. 3693) and into again its present § form under its 11130(a) (Stats. as section ch. present designation 13). violations, Neither time was it modified to refer to actions or past indeed to the itself in That it was not orientation past any way. given past cannot be attributed to a belief on the reasonably Legislature part has because such a belief That is
it one. already possessed left trace of its existence.6 never above, is set out 11130(a)’s which history,
Section legislative of action extends *16 the right our conclusion that provision’s confirms not ones. only and and past and future actions violations present reference not enacted. No such the existed in what was reference to past exists in what was. (1) or a sum, action: to 11130(a) prevent a of grants right stop section one; back to a act—but not to reach past future violation of the
present a or future act is (2) present determine applicable whether one. action—but not a past
C action of right granted before us is whether The second question Act is limited 11130.3(a) under the Bagley-Keene Open section by limitations contained therein. statute of 30-day itself, that the are of the 11130.3(a) we opinion on section Focusing of action is indeed limited by answer is affirmative: provision’s contained therein. statute of limitations 30-day 54960(a)), (a) (hereafter Act states that section the Brown of section 54960 6In subdivision mandamus, declaratory injunction or an action “any person interested commence of’ the act or threatened violations stopping preventing of violations purpose relief for the of’ the agency applicability or to determine the legislative body of a local “by members of of legislative body . . . .” Some Court future action of the act actions or threatened “to actions and violations as past extends to provision assume or assert that the Appeal decisions ones—albeit, and violations that only past as to actions apparently, future present well as Utility (See, etc. Education v. e.g., Alliance present or future ones. are related for California 1024, 1029,1030,1031 833]; Cal.Rptr.2d (1997) City Diego Cal.App.4th [65 56 Frazer San 784-785, 641]; 781, (1993) Cal.Rptr.2d Cal.App.4th 798 [22 School Dist. 18 v. Dixon Unified 95, (1985) Cal.App.3d 171 99-100 Redevelopment Agency [214 Newspapers, Inc. v. Stockton 518, (1983) Cal.Rptr. 561]; Cal.App.3d 520-521 Stirling [195 147 Common Cause v. Cal.Rptr. 813, (1981) Cal.App.3d 823 163]; Supervisors 122 Planning, Inc. v. Board Sutter Sensible 658, (1981) 342]; Stirling Cal.App.3d v. 119 Cal.Rptr. Common Cause & fn. 6 [176 -824 (1979) 200]; Cal.App.3d 661-662, 89 v. Board Commissioners Cal.Rptr. Torres 665 [174 None, 54960(a)].) citing or section section 54960 Cal.Rptr. 506] [not 547-551 [152 decision, course, authority not however, it does so. “A actually considers whether (1998) 348 Cal.4th (Mercury Group Superior v. Court Ins. it does not consider.” what 1178].) indication that may, it there is no Be that as P.2d Cal.Rptr.2d [79 54960(a) possesses past orientation that section in these decisions assumption or assertion 11130(a) one as well. possesses Legislature that section part a belief on the gave rise to Section 11130.3 authorizes the nullification and voidance of an action taken a state in violation of the act’s notice or body open-and-public- (1) but if: an interested an meeting commences requirement, only action nullification and voidance within 30 from the date the seeking days taken; (2) action in was the action not in substantial question was compli- ance with the and did not involve either the sale or issuance of requirements, an evidence of indebtedness or related aor contractual agreement, obligation faith, on which has relied in or the party detrimentally good collection of tax; the violation cured or corrected. follows, therefore, that, 11130.3, It had enacting Legislature as its to authorize the nullification and voidance of an purpose action taken a state violation of act’s notice or open-and-public-meeting but under strict requirement, conditions. Its arose as purpose evidently *17 two, it struck a balance between at least potentially conflicting, objec- actions, tives—to the nullification and permit voidance of certain but not to the of even imperil finality such actions It unduly. chose to craft accordingly a but to restrict powerful weapon, its range.7
Section 11130.3(a)’s statute of limitations does not 30-day allow any extension of time It is as it to be: expressly. “Any action appears seeking . . . a judicial determination” that “an action taken a state in body violation of’ the act’s notice or is open-and-public-meeting requirement “null and void” “shall be commenced within 30 the date days the action from (Italics was taken.” added.)
Neither does section 11130.3(a)’s statute of limitations 30-day allow any extension of time by implication.
Had it fixed the of its limitations inception not as of the date of the period the taking by state of the action to be but challenged, instead by (1995) 912, 288, 7Compare Paxson v. Board III.App.3d 276 III.Dec. 923-924 [213 of Educ. 1309, 658 N.E.2d (Dealing open meeting authorizing similar act in 1316] Illinois the nullification and voidance by public body meeting of an action taken at a in violation of the act’s requirements, but if a days commences an action therefor within 45 from the meeting date of the question; . . . note” that the nullification and voidance of “[W]e “governmental powerful remedy actions is indeed a that drastic carries with it the potential enormous for upsetting stability government. the of Consequently, we find that the placed remedy” restriction “very on in the form of a period short and definite time bring” reasonable.”); City which to an “action” is “more than Prescott v. Town Chino 608, Valley (1989) 263], 163 Ariz. 614 P.2d entirety opinion decision affirmed in its [790 part pertinent vacated in here 166 Ariz. (characterizing 480 P.2d as a [803 891] “heavy penalty” the nullification and voidance public body of an action taken at a meeting in requirements Arizona). violation of the of a open meeting similar act in date, reference, cause of underlying such accrual any without thereof, 11130.3(a)’s statute 30-day action or to the discovery extension of time be deemed to allow some might implication. limitations rule” one for defining begin The so-called “accrual general Proc., 312; see (Code for a cause of action Civ. of a limitations § ning period 459, Actions, Witkin, 1996) (4th ed. pp. Cal. Procedure § generally, law, “when, time under the substantive 580-581), setting opening Witkin, (3 arises” Cal. act is done and the . . . liability the wrongful Procedure, Actions, omitted). italics The so-called p. supra, § thereto, rule” is the “most exception” postponing “discovery important (Id., of action until thereof. discovery for certain causes opening can extend the begin the accrual rule effectively If tolerantly applied, (1996) 47 (See, Garver v. Brace e.g., of a limitations ning period. 220].) Even if strictly applied, Cal.Rptr.2d 999-1001 Cal.App.4th [55 same, is to trigger rule can do the inasmuch as its very purpose the discovery Procedure, Actions, Witkin, (See supra, an extension. Cal. generally, such 463-466, 583-590.) pp. §§ does 11130.3(a)’s statute of limitation 30-day simply
But section date, reference, of its limitations without period by not fix inception so, rather, It as of the date of taking or even accrual. does discovery Indeed, controlling. fact is it is the action in This significant. question. been actions have *18 11130.3 concerns itself exclusively Section the act’s notice or require- taken in violation of open-and-public-meeting Which in day. outside of the of occurring light ment. Which means actions fraud in intent. Because fraud in effect if not turn means actions implicating itself, been to allow concerns it would have expected section 11130.3 so means. An extension of time some kind of by example presents some kind of Procedure, of the Code of Civil which (d) in subdivision of section 338 itself fraud for an action for of its limitations three-year period fixes the inception reference, date, 11130.3(a) thereof. That section any discovery without by means in of time by any type express not allow of extension any does type that it does so by implication.8 bars the conclusion terms practically nullification 60-day requirements officials” period of fraudulently attempt To of a such time as 8Compare accept [public] statute might sixty days": Kennedy and voidance of an body . . . did not allow premise of limitations “frustrate” aggrieved party to circumvent v. Powell “We that the outweighed any danger the act’s think the any of a similar right an (La. extension has action to sue “purpose Ct. legislature felt the need to create knowledge rights App. taken open meeting act in Louisiana afforded time, 1981) ... [nullification by by concealing action taken the action taken could even 401 So.2d public public against and voidance] officials would body in 453, [under the possibility certainty in the affairs violation the (concluding that the lead to a state of act], intentionally, suspended authorizing the in of the act’s that [1] secret . . . “public for a until [H] 11130.3(a) itself to its Looking beyond we find legislative history, confirmation for our conclusion that the of action right is indeed provision’s limited statute of 30-day limitations contained therein. 1984,
In at the of Member G. request Assembly Lloyd Connelly, concluded, General here, issued an in Attorney which he opinion pertinent that, bodies, in order not to of actions taken state imperil finality act, in Legislature, originally had not intended that enacting violation any of its any would result in the requirements nullification and voidance of such action. any (“SpecificAgenda” Requirements Bagley-Keene Open Act, 84, (1984).) Ops.Cal.Atty.Gen. 88-93 Member of the authored Assembly Connelly Bill No. Assembly (hereafter 1985-1986 Session Regular sometimes Bill No. Assembly 214) in order to add section 11130.3. introduced,
As Bill Assembly 11130.3, No. 214 in section provided in fashion, that an positive action taken a state body violation of the act’s notice or void, open-and-public-meeting would be null requirement unless one or more satisfied, of certain conditions were those specifically, relating substantial (as it compliance would be ultimately phrased) contractual (Assem. obligation. (1985-1986 Bill No. 214 Sess.) Jan. Reg. 3.) It granted § interested person to seek nullification and (Ibid.) voidance. But it demanded that such a had to commence an action within 60 from the days date the action in question (Id., taken. 3-4.) pp.
As amended in the subsequently Bill No. 214 con- Assembly, Assembly tinued 11130.3, fashion, in section provide that an action taken positive a state in violation of the act’s notice or open-and-public-meeting void, requirement would be null and unless one or more of certain conditions satisfied, were those specifically, (as to substantial relating it compliance *19 would be ultimately contractual phrased), obligation, now also evidence Amend, (Assem. indebtedness. (1985-1986 to Assem. Bill No. 214 Reg. 7, 1985, Sess.) 1, Mar. 3-4.) It continued to pp. grant § interested person a right 2, of action to seek nullification and (Id., 4.) voidance. And it p. § continued to demand that such a had to commence an action person within 60 from days the date the action in (Ibid.) was taken. question uncertainty extreme in the administration affairs. It should be noted that [the act] ‘any person . . .’to permits eligibility This unlimited prospective plaintiffs [sue]. would lead greater degree to an even uncertainty difficulty in the determination a of when complainant should knowledge have had begin of the action to period].” limitations [the original.]). in [Italics 530 time, 214 now first Bill No. Assembly amended in the Senate for the
As 11130.3, an action taken a that negative fashion, in section in provided re- of the act’s notice or open-and-public-meeting state in violation body of certain conditions be null and void if or more would not one quirement satisfied, (as it those to substantial relating compliance were specifically, indebtedness, and coniractual be evidence of would ultimately phrased), Amend, Sess.) (1985-1986 214 (Sen. Reg. to Assem. Bill No. obligation. 1985, 1, interested a right It continued to grant any person May p. § (Ibid) And it continued to and voidance. of action to seek nullification from days had to commence an action within 60 demand that such a person (Ibid) date action in was taken. question time, Bill No. Assembly amended in the Senate for the second As 11130.3, fashion, that an action negative in section in continued provide notice or a in violation of act’s body open-and-public- taken state of certain null and void if one or more would not be meeting requirement satisfied, to substantial relating compli- conditions those were specifically, indebtedness, and contractual (as it evidence of ance was now phrased), Amend, Sess.) (1985-1986 Bill No. 214 (Sen. Reg. to Assem. obligation. 1985, 1, that an action could be cured 2-3.) It now made June pp. plain § corrected, (Id., 2.) It be null and void if it were. p. and would not § nullification of action to seek right continued to interested grant any person demanded that (Ibid) concern here—it now and voidance. But—of particular from the date had to commence an action within days such a person taken, the original that one-half of fully action in was period question (Ibid) one of 60 days. time, final Bill No. Assembly in the Senate for the third and
As amended fashion, 11130.3, that an in negative 214 continued to provide notice or of the act’s open-and- action taken a state violation be null and void if one or more would not requirement public-meeting satisfied, those to substantial relating certain conditions were specifically, indebtedness, and now also contractual obligation, evidence of compliance, Amend, (1985-1986 Bill No. 214 (Sen. tax. to Assem. the collection of a an to make 2.) It continued Sess.) plain June Reg. corrected, if it not be null and void were. be cured or and would action could of action to interested (Ibid) It continued to grant any also concern—it (Ibid) And—again particular nullification and voidance. seek action within had to commence an demand that such a person continued to (Ibid) was taken. the date the action in from days question above, confirms our *20 is set out which legislative history, Section 11130.3’s the 30-day limited by of action is indeed that the right conclusion provision’s
531 statute of limitations contained therein. That the does not allow provision extension of time shows itself on the surface. That it does not expressly do so beneath. Its defined strict legislative history implication appears conditions for the nullification and voidance of an action taken a state notice violation act’s or open-and-public-meeting require- Moreover, definition, ment. in its it moved from strict conditions to even stricter ones. such strict conditions was its limitations It Among period. reduced it half from 60 30 Its reduction was days days. explicit. It some precludes any expansion by extension implication—as by allowing doubt, of time. Without a limitations is indeed short. provision’s period fact, is, Witkin, Procedure, In there (See none shorter. 3 Cal. apparently, Actions, 441, But, evident, as is supra, it was the result of surely that, stated, deliberate choice—a deliberate choice made in face of the fact as concerns itself actions that provision exclusively with have been taken in violation of the act’s notice or outside open-and-public-meeting requirement, of the full fraud in if light day, effect not in intent. Had the implicating meant to allow some Legislature extension of time of the limitations period itself, at the same time at which it was the limitations it shortening period would likely have made itself clear in the It did not. What it did premises. we should not claim to speak hear. sum, 11130.3(a)’s action is indeed limited statute of 30-day limitations contained therein.
III We now turn to the decision of the Court of Appeal denying Regents’ for writ of mandate insofar as it petition sought writ peremptory against court in superior to its order challenge their denying summary judgment motion. threshold,
At the the Court of concluded that the Appeal impliedly motion, court’s superior on the ruling summary and its resolution judgment issues, of the underlying statutory-construction were subject independent here, review. It was on right. such “Rulings as deni- motions”—including, (Buss als—“are examined (1997) de novo.” v. Court 16 Cal.4th Superior 766].) 939 P.2d The same is true of the Cal.Rptr.2d resolution of [65 issues, such inasmuch are (See 20th Century law. pure questions Ins. Co. v. Garamendi 8 Cal.4th Cal.Rptr.2d [32 566].) P.2d
A We first consider whether Court of determined correctly Appeal that, facts, under did not have undisputed Molloy any right *21 Act 11130.3(a) Open for his Bagley-Keene to section
pursuant cause of action. That is indeed to the act. all that the are Regents subject
It is accepted in its terms. Code so declares of the Education it must be. Section 92030 as itself Constitution article IX of the California of section 9 of (g) Subdivision to be meetings cause their must Regents generally states that latter, “with . . . as for the for the former and expressly as public, impliedly statute,” the act. including bemay provided notice requirements in fact determination was that the Court of Appeal’s We are of view 11130.3(a) an interested person grants correct. Section taken a state body of an action the nullification and voidance seek if requirement the act’s notice or open-and-public-meeting violation of the action was from the date an action “within 30 days he commences nullification and action seeking did not commence his taken.” Molloy at the noticed and open of SP-1 and SP-2 of the Regents’ approval voiding almost 7 but waited days, within July meeting months, until 1996. February conclusion, be that the should Regents equita- Molloy argues our
Against of limitations 11130.3(a)’s statute 30-day section raising from bly estopped because, concealed they fraudulently defense assertedly, as an affirmative his cause of action. 11130.3(a)’s statute 30-day section have already explained,
As we matter. time at least as a general extension of does not allow any limitations 11130.3(a)’s 30-day He claims that section the contrary. Molloy argues We disagree. an extension of time. does in fact allow of limitations statute is without express that the itself has demonstrated provision Our analysis stands in that legislative history its in this regard, warrant implied confirmation. 11130.3(a)’s statute 30-day
As we shall presently explain, through operation of time even not allow extension limitations does concealment. the doctrine offraudulent . . . commonly ap “collective term limitations” is the
“Statute of acts, acts,” the periods “prescribe number of parts to a great plied Procedure, Witkin, (3 Cal. be brought.” actions “may which” beyond Actions, has as its purpose one typical supra, ” “ dilatory claims of a plaintiff.’ from stale of the defendant ‘protection *22 (Bernson 926, (1994) v. Browning-Ferris Industries 7 Cal.4th 936 [30 440, 613], Witkin, 873 P.2d Cal.Rptr.2d (3d 3 Cal. Procedure quoting ed. Actions, 529, 558, 1985) Witkin, which is continued in 3 Cal. Proce p. § dure, Actions, 691, 882; accord, supra, (1857) Kane v. Cook 8 Cal. p. e.g., 449, 458; see, (1944) v. e.g., Pashley Ry. Elec. Co. 25 Cal.2d Pacific 325]-229.) 228 P.2d [153 concealment,
The doctrine of fraudulent (see, which is created judicially Industries, Bernson e.g., 931; v. Browning-Ferris 7 Cal.4th at supra, p. Kimball v. Gas Elec. (1934) & Co. 220 Cal. 210-213 P.2d [30 Pacific Cook, curiam)', (per Kane v. supra, 458-461), 39] 8 Cal. at limits pp. statute of typical limitations. defendant’s fraud in a cause concealing “[T]he him tolls the against statute of applicable limitations . . . .” (Sanchez v. South Hoover Hospital 18 Cal.3d 99 Cal.Rptr. [132 accord, 1129]; 553 P.2d Industries, Bernson v. e.g., Browning-Ferris 931; 7 Cal.4th at supra, Co., Kimball p. v. Gas & Elec. 220 supra, Pacific 210; Cook, 458-461; Cal. at Kane see, v. p. supra, 8 Cal. at pp. e.g., Pashley Co., v. 229-230, Elec. Ry. 25 supra, 231-232.) Cal.2d at In pp. Pacific doctrine, articulating the courts have had as their to disarm a purpose who, defendant his own by has caused a claim deception, to become stale and a Industries, plaintiff dilatory. (E.g., Bernson v. Browning-Ferris supra, 931; 7 Cal.4th at p. v. South Hoover Hospital, supra, 18 Cal.3d at Sanchez p. 100; see, Co., e.g., Pashley v. Elec. Ry. 25 Cal.2d at supra, pp. Pacific 229-230, 231-232; Cook, Kane v. supra, 458.) 8 Cal. at The doctrine arose p. in courts of and not (See, in courts of equity law. e.g., Kimball v. Gas Pacific Co., & Elec. 210-212; Cook, 220 supra, Cal. at Kane v. pp. 8 Cal. at supra, 458; Industries, see also Bernson p. v. Browning-Ferris 7 Cal.4th at supra, p. that the [noting doctrine is an “equitable Its principle”].) genesis, however, did not to be its prove confines. It was extended to be early Cook, available “in all (Kane 461; accord, cases” v. 8 Cal. at supra, p. e.g., Co., Kimball v. Gas & Elec. 211), 220 Cal. at supra, that is to p. say, Pacific Cook, actions at law as (Kane well as suits in v. equity supra, 8 Cal. at pp. 458-461). It limitations, all, without, enters into a statute of if at from being judicially. (Kimball Co., supra, “read into” it v. Pacific Gas & Elec. at Cal. mind,
To our 11130.3(a)’s section statute of 30-day limitations the doctrine of precludes fraudulent concealment. statute of typical limitations admits of the of the doctrine of application fraudulent conceal- ment. The of each are consistent the purposes one with the other. That of the statute is to a defendant from a typical protect stale claim of a dilatory who, That of the doctrine is to disarm plaintiff. a defendant his own claim Not so dilatory. become stale and a has caused plaintiff deception, 11130.3(a)’s 30-day and section fraudulent concealment the doctrine of limitations, of each are one. The purposes which is not typical statute stated, doctrine, is the other. That of inconsistent one with who, has caused a claim his own deception, disarm a defendant contrast, 11130.3(a) dilatory. become stale and plaintiff of an action taken a state nullification and voidance to authorize the but requirement, of the act’s notice or in violation open-and-public-meeting absence, conditions—which, their entails the protection under strict *23 the freshest claim of the most defendant from of even most deceptive diligent plaintiff. not statute of limitations would 11130.3(a)’s true that section 30-day
It is contained the fraudulent concealment if the statute the doctrine of preclude do so. The statute at least But it does not doctrine in terms or by implication. allusion to the doctrine. pertinent devoid of reference or even is altogether more, less, seeking than that an interested person it states no and no part, in nullification taken a state violation body and voidance of an action . . . com- “shall the act’s notice or requirement open-and-public-meeting action taken.” from the date the was an action “within 30 days menced” 11130.3(a)’s statute of limitations would 30-day true that section It is also be concealment if the doctrine could the doctrine of fraudulent not preclude Co., (Kimball supra, v. Gas & Elec. into” the statute judicially. “read Pacific had in 212.) Legislature it cannot be. The Cal. at But purpose 220 p. and voidance of authorize the nullification section 11130.3 was to enacting the act’s notice or open-and- in violation of body an action taken state of those under strict conditions. One but only requirement, public-meeting choice—is that an interested result of its deliberate strict conditions—the the date the action an action days must commence within person of fraudulent to read the doctrine taken. For us judicially question statute of limitations would 11130.3(a)’s 30-day concealment into section When, here, that balance is not as balance. legislative upset offensive, v. (See do so. Scheas Robertson we constitutionally 982]; Muller v. Muller 125-126 P.2d (1951) 38 Cal.2d [238 419].) 819 Cal.Rptr. Cal.App.2d [4 11130.3(a)’s that section to the contrary, Molloy argues
Again the doctrine does not in fact preclude of limitations statute 30-day fraudulent concealment. stating implying decisions cites various language
Broadly, Molloy (Kane Cook, at 8 Cal. supra, cases.” v. is available “in all that the doctrine meant that the doctrine could be such Originally, language only 458-461.) In at as as suits in at invoked in actions law well equity. pp. (Id. not, that it be It did generally. current it means can invoked usage, only not, mean that it must be available here. asserts that never Molloy does But before has before has decision held the doctrine unavailable. never any decision addressed the in this context. To arrive at an unprec- question edented conclusion is not to arrive at an erroneous one. act, which,
More focuses on the ends of the as narrowly, Molloy general stated in section are to cause “actions” of state bodies to be “taken and to cause their “deliberation” to be “conducted in order openly,” openly,” . . . informed so that retain control over the keep people they may “[t]he instruments have created.” He claims that the doctrine preclusion of fraudulent concealment is inconsistent on the that it restricts the ground nullification and of an voidance action taken a state in violation of the act’s notice or But in on open-and-public-meeting requirement. focusing ends, means, which, the act’s he its general ignores specific pertinent, authorize nullification and voidance of such an action under strict conditions, that an interested must commence an action including *24 within the date days of the action in was taken. The issue question whether ends over in of general means case conflict need not prevail specific be resolved here. That is because there is no conflict. The act’s ends general stated in the act were enacted before it amended to originally Hence, authorize the nullification and voidance of actions any whatsoever. can be deemed in conflict the hardly means specific authorizing voidance, conditions, such nullification and albeit under strict only including a limitations of 30 period days.9
B determined We next consider whether the Court of Appeal correctly that, facts, under the indeed a action did have of undisputed Molloy right 11130(a) to section for his Act cause pursuant Bagley-Keene Open of action. reach, not, not, presented 9Because of the result that we we need and do resolve other issues example,
herein. For pass we over whether the doctrine of fraudulent concealment would be 11130.3(a)’s 30-day in this precluded available case if it were not statute of limitations. We do the same as for whether the earlier asserted commitment or collective promise by Regents approve alleged “meeting” the to and at at SP-1 SP-2 secret serial of members, Governor, quorum including alleged least a of the board’s which was to be in subject violation of the open-and-public-meeting requirements act’s notice and and to be to basis, approval nullification and voidance on that could “taint” the board’s later 20, 1995, meeting July resolutions at the and public noticed and of which was not alleged open-and-public-meeting requirement to be in violation of the act’s notice or or to be subject to nullification and voidance on that basis. Here, that the Court of determination was we are of view Appeal’s did not of action to section any incorrect. have Molloy right pursuant that 11130(a), at least not to obtain the relief that he seeks. That is because that to an interested a of action extends grants right provision person it and future actions and and not ones. past Specifically, violations present (1) a or future violation of a of action: to grants right stop prevent present one; to reach back to a and to determine whether the the act—but not past Hence, it act to a or future action—but not a one. past is applicable present did not of action to void grant Molloy any right nullify Regents’ past of of SP-1 and SP-2 at the noticed and open public meeting approval of the resolutions as null or to July implementation prohibit it him of action to determine whether and void. Neither did grant any right the act to collective commitment or was applicable any past promise resolutions, to the noticed and open Regents approve proposed prior 20, 1995, at the secret serial meeting July alleged “meeting” members, And, at a of the board’s the Governor. on including least quorum face, determine its it did not him of action to whether grant any right very their commitment or the act was violated such collective making promise. he indeed to the that did have
Molloy argues contrary, right 11130(a) the relief that he He that to section to obtain seeks. says pursuant that extends to that an interested action grants person right provision But, and future actions and violations as well as ones. as we past present shows, itself and its con- legislative history have explained, provision firms, that He then that should deem the is not so. we says provision action, of a such a lest we tolerate absence such grant of the act’s notice an action taken a state violation against remedy means, deem actuality, So to open-and-public-meeting requirement. *25 event, alone. In a remedy amend—which to the belongs Legislature exist, does, fact, the means of the threat of in in form of prevention by under 11130.7 individual members of the against criminal section liability that, the of action for which he state He without right body. complains contends, cloaked of the most immunity” such “would be with persons in direct and absolute That is false. Section 11130.7 stands altogether sort. contradiction.10 complete
C of the it follows that the Court Appeal In view foregoing, denial of the Regents’ summary the court’s erred by upholding superior Appeal certain decisions that he claims argument, Molloy cites Court support 10In of Ms 54960(a) under the Brown Act grants interested of action hold that section an ante, (See, ones. at present and violations as well as future past that extends to actions (Ibid.) most, they merely assume or assert that it does. He does in At fn. so vain. motion on Act cause of Bagley-Keene Meeting judgment Molloy’s Open either action. For did not have Molloy any right pursuant Hence, 11130(a) 11130.3(a). there was no triable issue of material or section fact and were entitled to as a matter of law. judgment Act cause
Because of its error on Molloy’s Bagley-Keene Open Meeting action, Public Records the Court of did not reach his California Appeal former, Act the too cause of action. Because its error on the court superior had not reached the latter. The court should be allowed an superior oppor- to address issue the first instance. so The tunity Molloy argues. have no Regents objection.
IV above, For the reasons stated we conclude that we must reverse of the Court of judgment for writ of Appeal denying Regents’ petition writ, mandate insofar as it and must sought remand cause peremptory to that court with directions to remand it in turn to the court with superior directions to conduct not inconsistent proceedings views expressed herein.11
It is so ordered. J., Kennard, J., Baxter, J., J., Chin, J., Brown, C.
George, Werdegar, J., concurred.
BROWN, J., Concurring.—I agree with and result of the reasoning majority which resolves the statute of opinion correctly limitations ques- I tions. write to address another separately significant question directly here. Tim action on presented by parties rests Molloy’s allegations Governor, an ex officio member of the Board of of the Regents Univer- of California conducted sity (Regents), conferences premeeting telephone awith and secured their quorum Regents to vote for the agreement resolutions at that presented meeting. issue this case is underlying whether substantive discussions of official matters—whether conducted by letter, mail, electronic telephone, members of face-to-face—among (Gov. state to the government Act body subject Bagley-Keene Open *26 Code, 11120 et hereafter all references are to the Govern- seq.; statutory Code) ment the violate statute’s of a state injunction meetings “[a]ll 11 outset, At the superior denying Regents’ summary court must vacate its order Then, judgment motion. if it concludes that there triable of material and that is no issue fact judgment Molloy’s are entitled to aas matter of law on California Public Records Act action, conclude, grant summary cause of it must their motion. If it does not so it must order adjudication Bagley-Keene Meeting in their on Open favor his Act cause of action.
538 (§ 11123.) The Bagley-Keene Open shall be . . . open public however, not, define (the Act) “meeting.” Act does that, held at least as the Courts of have
In a handful of opinions, Appeal (§ et law meeting used in the M. Brown Act 54950 seq. open Ralph [the Act)), (hereafter the term “meeting” local Brown governing agencies] itself at which a commits legislative body informal sessions “comprehends business.” to a future decision concerning public collectively particular (Stockton (1985) 171 Agency Cal.App.3d Inc. v. Newspapers, Redevelopment The seminal case is Justice Fried- (Stockton).) Cal.Rptr. [214 561] Bd. County Guild v. Sacramento man’s in Sacramento opinion Newspaper (Guild), a Brown 47-51 Suprs. Cal.App.2d Cal.Rptr. [69 480] of California’s modem meeting Act decision that is grandfather There, board county sued journalists enjoin jurisprudence. newspaper en masse and in the midst of strike by public from attending, supervisors Club where counsel county informal luncheons at Elks employees, (and from labor union also the officers of the appeared public employees barred). which were plaintiffs central its Brown Act open meeting provision] unequivocal
“[The business, but official sessions for the transaction of official thrust upon or conversations gatherings as it encounters ambiguous peripheral somewhat business is a court wrote. board members where among topic,” relief (Guild, against at Affirming injunctive supra, Cal.App.2d p. lunches, was “a the court held that the statute’s openness requirement and com- of the act’s intended impact,” deliberate and expression palpable dual of the collective both “deliberation and action as components prehends cannot be off and confined . . . . . . split decision-making process [which] (Ibid.) and either.” but rather both to one only, comprehends component ruled, the court extends to committee meetings, ban on “secret” deliberations the Brown of committees and their meetings, since “the inclusion specific collective investigatory its general Act demonstrates application (Id. at fn. of official action.” consideration short activity stopping omitted.) law, the court a shibboleth in the case Guild
In a that has become passage others, a statute may push area of as well as regulation, wrote that this “[i]n An informal block evasive debatable limits in order to techniques. beyond of secret decisions to crystallization point conference or caucus permits There is rarely purpose short of ceremonial acceptance. just deci some to conduct part conference except nonpublic premeeting the collective inquiry Only by embracing behind closed doors. sional process
539 action, the ultimate of official can an and discussion as well as stage, step frustrate these evasive devices. . . . Construed in open meeting regulation the term extends to ‘meeting’ of the Brown Act’s light objective, members for the designed informal sessions or conferences of the board luncheon, The Elks Club attended discussion of business. (Guild, a Board of was such meeting.” Sacramento County Supervisors, 50-51, omitted; Stockton, at fn. see also supra, 263 supra, Cal.App.2d pp. at conversations board among 171 100-102 Cal.App.3d pp. telephone [serial Act]; members constituted a and violated Brown Rowen v. Santa “meeting” (1981) 231 Clara School Dist. 121 Cal.App.3d Cal.Rptr. 292] [175 Unified session contractor absence “meeting” prospective despite [closed commitment]; (1993) of v. Dixon School Dist. 18 Cal.App.4th Frazer Unified 781, school board to 791-794 of Cal.Rptr.2d [quorum present [22 641] discuss district business was in “collective and ex engaged acquisition of facts” and was thus a v. Palmdale change “meeting”]; City Roberts of (1993) 5 Cal.4th 853 P.2d Cal.Rptr.2d [20 496] [“concerted to in collective deliberation” would violate the engage serially plan open (dictum); meeting see also 216 Sutter Associates v. requirement] Bay County Sutter 876-878 Cal.App.4th Cal.Rptr.2d [68 492] [meet of between incumbent and elected were not “meet ings newly supervisors within Brown Act since Act did not to ing[s]” apply supervisors-elect].) it, Without the result in Guild or cases on this formulation faulting relying overbroad, be later to overlook the to encouraging analyses degree such broad which restrictions formidable constitutional difficul- may present ties, and the fine but critical distinctions reach between of proper and the meeting legislation values that make the foundation contending up for the common law’s “deliberative For process” privilege. example, Stockton, court, at on the supra, Cal.App.3d page relying analysis Guild, held in substance that “a of series conversa- nonpublic telephone tions, each a between member of the of a local governing body agency for the its a collective attorney, commonly agreed obtaining purpose commitment or a of that promise by majority body concerning public business, Act],” constitutes a within the Brown ‘meeting’ purview [the thus statute. violating definition intended a
Whether such broad Legislature meeting unclear. The Act Brown defines include meeting “any congregation of the members of a at the same time and majority legislative body place hear, discuss, or deliberate item that matter is within upon any subject or the local it jurisdiction legislative body which agency pertains.” 54952.2, communication, (§ (a).) subd. It the use of “direct prohibits per- intermediaries, sonal devices” technological by majority employed *28 540 a concurrence as to action to be taken on an
members “to collective develop 54952.2, (§ (b).) item.” The Act defines “action taken” as “a subd. Brown collective decision made a of the members of a by majority legislative body, a of the members of a a collective commitment or promise by majority decision, or an actual vote to make a or a legislative body positive negative of the members of a when as a legislative body sitting by majority resolution, motion, (§ 54952.6.) ordinance.” order or entity, proposal, upon The of the Act are more ambigu- provisions Bagley-Keene Open intent that the deliberations of state ous. Act declares legislative (§ 11120), be “conducted notice and agencies agenda openly” specifies and authorizes a action to determine an action whether requirements, judicial (§§ null and taken in violation of these is void. provisions 11125, 11130.3.) (§ 11122) taken” is identical to The definition of “action Act, defined and a use Brown but is not “meeting” provision prohibiting communication, of direct intermediaries or devices to technological personal Nevertheless, in the Act. a collective concurrence is not included develop intended these to be with Brown Legislature arguably congruent provisions Act and here are. assumed requirements plaintiffs
However, re- it is not clear the commitment to Legislature’s openness an of the executive so intrusion into deliberative deep process quires Indeed, function of a branch. substantial essential impairment coequal branch of would be Under the deliberative government process prohibited. senior officials of all three branches of enjoy privilege, government or to be examined concerning limited not to disclose privilege qualified, reached, the mental which a decision was but the given processes by conversations, discussions, debates, deliberations and like ma- substance of advice, terials and recommendations which reflecting govern- opinions, The case of what origins ment is formulated. law processed policy “the Miller and Marcus call or “deliberative Wright, governmental” process” 2019, al., (8 (1994) et & Procedure Federal Practice Wright pp. privilege § 296-312; al., (1992) et Federal Practice & Procedure pp. 26A Wright § Act 125-157) been codified in the federal Freedom of Information have (5 et 5 of which from disclosure (FOIA) U.S.C. 552 seq.), exempts memoranda” not discoverable. ordinarily civilly “intra- and inter-agency (1991) Mirror Co. v. Court 53 Cal.3d Superior Times [283 (Times Mirror), this court held that the “legis- 813 P.2d Cal.Rptr. 240] ‘serve to illuminate construction of FOIA . . . lative history judicial ” Act the Public Records of its California counterpart,’ interpretation (§ 6250 et seq.). evidentiary records statutes is an antecedent privi both
Underlying recommendations, from disclosure opinions, lege protecting compelled advice of makers and their aides. The government policy justification limitation is the a need for claims of “recognition evidentiary of] when to ensure frank and discus confidentiality privilege necessary (United sion . . . .” States v. Weber 465 U.S. Corp. Aircraft *29 1488, 1494, 814].) S.Ct. L.Ed.2d As the court wrote in NLRB v. 79 [104 Sears, (1975) Roebuck & S.Ct. Co. U.S. 150 [95 29], L.Ed.2d cases rest on the of “uniformly privilege policy protect [citations]; the ‘decision of and ing making processes government agencies’ focus on documents recommendations ‘reflecting advisory opinions, deliberations of a which decisions governmental comprising part process are formulated.’ “The the Sears court went policies point,” [Citation.]” note, on to “is that the ‘frank discussion of or matters’ in legal writing policy be inhibited if the discussion were made and that the ‘deci might public; sions’ and formulated’ would be the as a result. ‘policies poorer [Citation.] out, As a lower court has ‘there are incentives as it is for pointed enough wind,’ it safe and (Ibid.) . . . playing listing [citation] Zeiss, In Carl Zeiss (D.C. 1966) v. V. E. B. Carl Stiftung Jena 40 F.R.D. 318, a district court widely quoted Robinson “No opinion, Judge wrote: where is the interest more involved than in the public vitally fidelity decision- and sovereign’s resources. . . . policy-making To extent ffl] [^] others, that such communications later be scrutinized communi cative itself becomes embarrassed .... process Freedom of communica tion vital to fulfillment aims of wholesome is obtained relationships only by [Government, disclosure .... removing specter compelled citizen, no less than the needs but channels for the kind of open protected talk that is plain (Id. essential to the of its at fn. quality functioning.” p. omitted.) considerations,
These
fundamental to the
operations
government, jus-
tify
for executive
presumptive privilege
communications. As this court put
it in Times Mirror. “The deliberative
in the
process privilege
grounded
unromantic reality of
it rests on the
politics;
that if the
understanding
public
information,
and the Governor were entitled to
the same
neither
precisely
1345;
(53
would
it.”
likely receive
Cal.3d at
see also
ex
Atty.
State
rel.
(1981)
333-334];
Gen. v. First Judicial
The has a to know what decisions officials make public right government and to have officials articulate the basis on which act. To the fully to avoid scrutiny altogether, public
extent officials seek to evade public issue, discussion, on an in advance of majority hearings forge public interest, influences such as pecuniary public to hide improper personal the indirect is whether is appropriate. question opprobrium activities rules justifies engage- to information about government function is decisionmaking unreasonably ment so that the executive stringent which meeting requirements may There is a point beyond impaired. decisionmaking. informed and efficient effectively paralyze statutes meeting suggesting Judicial construction of the state’s open (and thus subject “serial” discussions board members are among “meetings” sanction) runs counter to a substantial directly long-standing to statutory and federal case law privilege of state supporting qualified *30 makers short among government for discussions confidentiality policy action. Case law a common law privilege and official agreement upholding extend discussions that do not confidentiality premeeting, prevote vital, commonsense are founded on even collective commitment important, value of notions of effective government. They recognize indispensable unrestrained, discussion, candid, debate and where final collective nonpublic and in and action on official matters occurs publicly compliance agreement “sunshine” statutory provisions. with intent, informa- need for access to
Whatever the Legislature’s public to the efficient administra- tion must be balanced against public’s right that “the Most sunshine laws recognize tion of bodies. public explicitly (FCC cannot be conducted in the entirely eye.” administrative public process Communications, Inc. 466 U.S. 469 S.Ct. v. ITT World [104 (5 the Sunshine Act U.S.C. L.Ed.2d [discussing 480] “ and issues 552b(b))].) clarify discussions background [that] ‘[I]nformal are a of an work. necessary agency’s views’ varying part [Citation.] expose such discus- would effectively prevent The Act’s requirements procedural without achieving sig- normal agency operations sions thereby impair 1940], S.Ct. at fns. (466 benefit.” U.S. at nificant 469-470 public pp. [104 omitted.) decisions is the to make rational duty
“Inherent in an executive position should decisions to take for the consequences. Important responsibility informal information be as may important not be made but casually, result, the decision needs the correct whether in reaching formal procedure rational, Educ. Com. v. Houston or efficient.” (Hispanic be representative, 606, 610.) is the 1994) duty (S.D.Tex. 886 F.Supp. “[I]t Ind. Sch. Dist. issues, and it in an to resolve each other attempt officials to persuade public makes little sense to that listen to a of nonmembers suggest they may group on matters but not to their who be more on colleagues, may important expert than other Sch. Dist. No. v. subject any persons.” (Moberg Independent Yet, (Minn. 1983) 336 N.W.2d that is acknowledged effect of so as to members of multimem- defining meeting broadly preclude ber bodies from collective related to an issue within engaging any inquiry their jurisdiction.
Such a militant view of access comes at a The normal high price. kind of between that give-and-take members is the essence of agency is deemed collegial decisionmaking illegal. Investigating, factfinding, combination of members that could brainstorming among any constitute when those contacts occur seriatim—is considered a quorum—even viola- short, tion of the laws. In bodies are open meeting from collegial prohibited behaving their members be collegially may for con- publicly pilloried in a ducting themselves manner that—in other contex—would be con- sidered rational. supremely
It thus seems evident the demand for in the conduct of openness government decisionmaking sometimes be at odds perceived deliberations, value of to effective confidentiality and that fine lines policy must sometimes be drawn courts in order to values promote signal *31 of both. It may well be that the course of construction of the judicial Act and Bagley-Keene Act has failed Open Meeting Brown that keep line true by glossing statutes in that open meeting intrude too ways into areas where confidential deeply deliberations have their value. greatest made, short, A case can be in that neither of California’s acts open meeting meant to the established trump from disclosure for privilege opinions, recommendations, advice and like materials that form part predeci- sional policymaking among senior officials. process government to reconcile these
Arguably, only way values would be to contending i.e., take a more of objective view open meeting requirements, by concluding that the of these acts are met if the requirements members of an agency board act at a noticed and their are properly public meeting votes publicly recorded. Almost the cases and commentaries on the unanimously, open informal, acts meeting functional distinguish “meetings,” composed board, of a from whether face-to-face or quorum gatherings, constructively, of less than a That distinction is because it quorum. helpful attempts between distinguish discussions less than a predecisional among quorum informal, board members and the “functional at which secret meeting” decisions are “to a short of crystallized just ceremonial point acceptance.” the distinction is so
(Guild, Unfortunately, at supra, Cal.App.2d inferential, matter how fact-bound that no any allegation, speculative resolution, and intrusive for its creates the for contentious litigation potential in debatable limits beyond be worse than contingency “pushing] short, {Ibid.) if government policy order to block evasive techniques.” as the themselves to lawsuits and onerous discovery makers must subject statutes, their with open meeting means of only establishing compliance at the of effective then is achieved government expense openness an construction of these laws The real decisionmaking. impact expansive is to on ignorance. put premium on behalf of
At oral counsel for the spoke eloquently argument, plaintiffs he and the to know. When asked why openness government public’s declaration that the Act had been violated even to obtain a sought judicial counsel said long time for the board’s action was rescinding past, though the determination that he the embarrassment of such a would candidly thought view, to the be In his officials subjecting discipline public salutary. humiliation the statute of sufficient justification extending provides But, in these if are to be they limitations cases. public pilloried, officials serious malfeasance or As things to be of some ought guilty impropriety. stand, of conversation—the kind of conversation we can be convicted want to encourage. would ordinarily acts jibes political rhetoric of the ringing open meeting poorly extreme, diminish the to its logical openness may actually Taken
reality. divisiveness, and limit the increase exchanges, number and quality scrutiny. information and the of critical collective flow of relevant depth Decision Between (Note, Making: Distinguishing Government Facilitating the Federal Act 66 Tex. Under Sunshine Meetings Nonmeetings meet- 1211.) The was not an L.Rev. Constitutional Convention notes, them took he would permit Madison voluminous ing, although “ *32 can sort of consti- his lifetime. what ‘Nobody say to be published during had been to pub- tution have if the convention emerged open would the states held [But, Madison’s notes been before lic. . . . published had] conventions, have been the Constitution would never adopted. their ratifying that been seized upon by The contained far too much would have dialogue ” Public’s to (O’Brien, “Right The First Amendment and the demagogues.’ Brant, (O’Brien), (1980) Const.L.Q. quoting 592-593 Hastings Know” Know, Media and the Law to Mass Right The Constitution and “ the citizen be familiar does not that ‘The case for democracy require case, be, He cannot in any knowledge. with all the bits pieces expert and the no credit if we and we do Mm individually people collectively claims can be maintained oMy by believe that political democracy that of the citizen. . . . Vindicating lies telling exaggerate ability does not that all know” “public’s right require specialized, private, rather, demands, inaccessible information be “made It relatively public.” about have access to those facts necessary public judgment public (O’Brien, ConstX.Q. ....’” at things supra, Hastings public McWilliams, & Political and the Bathory Theory People’s Right quoting Know, (GaMoor 1977) 3-21.) ed. Government Democracies Secrecy pp.
Neither the nor the has been Legislature judiciary every required level of its deliberations to the has had Traditionally, public. public access to information accountable deci- governmental tMough politically Thus, courts continue to consult their sionmaking. colleagues appellate conferences; in confidential in the caucus legislators may freely speak without to disclose their The being comments. executive branch required case, should a similar In this did hold a enjoy Regents flexibility. public that lasted more than 12 meeting—one hours. had full public oppor- votes, them, to voice its and the and the tunity basis for opinions Regents’ were Media record. was extensive. It is difficult part coverage to see more would be needed to to “retain why openness permit people (§ 11120.) control over the instruments have created.” Baxter, L, concurred.