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Late yesterday afternoon, Marin County Superior Court Judge, Roy O. Chernus, issued a tentative ruling in the case of Community Venture Partners vs. the County of Marin, on our Petition alleging that the Marin Board of Supervisors made a conscious decision to not place a public notice on its agenda, about a planned hearing on the Marin Housing Element, in the summer of 2014.
The tentative ruling, clearly and unequivocally ruled in favor of CVP and against the County. The ruling is replete with citations of case law and relevant facts substantiating our cause of action and the truth of our allegations. The ruling was in fact so clear that it was a bit of a surprise to be notified that the County had requested yet another hearing to argue against the ruling, which was scheduled for 8:30 am, this morning.
What transpired at that hearing was unusual to say the least.
On December 16, 2014, CVP filed a Petition for Writ of Mandate; Injunctive and Declaratory Relief, in the Superior Court of California, County of Marin, for a violation of the Ralph H. Brown Act, by the Marin County Board of Supervisors (for an exhaustive list of documents and filings in this case, please go to the Community Venture Partners web site).
In its meeting of August 19, 2014, the Marin County Board of Supervisors engaged in an extensive discussion and formal presentation about the Marin County 2015-2023 Housing Element, an item that was not on the agenda and for which no public notice was given. Public notice is required by State Law.
Unfortunately, this was not an isolated incident. The Marin Board of Supervisors have repeatedly been abusing the requirements of our open meeting laws under a unique interpretation of the law that they believe allows them to hold impromptu hearings on any subject so long as the topic is introduced by the County Administrator in his report of his own activities. According to County Counsel, this allows the BOS to hold discussions about any subjects they please, at any time, without public notice.
CVP’s legal position is that their interpretation is both incorrect and illegal. That is the basis and the legal importance of CVP's case and the reason for the filing of its Petition.
In response to the County's unnoticed hearing, CVP filed a "Cease and Desist" letter. The County chose to ignore that request, and in fact alleged publicly that they had done "nothing wrong" and that CVP's claim was "all bark and no bite."
Pursuant to that, CVP filed its Petition, which resulted in extensive back and forth arguments between CVP legal counsel, Edward Yates, and Deputy County Counsel, David Zaltzman. For a complete summary of events and a list of documents and filings in this case, please go to our web site.
In the spring of 2015, Marin Superior Court Judge Roy Chernus ruled in favor of CVP on all points of law, allowing the case to move forward.
Subsequently, CVP asked the Court to be allowed to conduct discovery in order to examine all documents and internal communications regarding the August 19, 2014 hearing. This was important because Supervisors Rice and Arnold, in their sworn affidavits, claimed that the August hearing was “impromptu,” and not premeditated. However, that contradicted the statements made at the hearing (on videotape), which indicated that the hearing was decided up upon and scheduled well in advance to ensure that Director Brian Crawford would be there to make his presentation. In fact, Brian Crawford had no other reason to attend the August hearing except to make his planned presentation, which he did by reading from a formal, prepared document. County Administrator, Hymel, had even introduced Crawford by saying the Director was “asked to make a presentation” today. These facts suggested that the County knew that this report and discussion was going to happen, but they made a conscious choice not to give any public notice of it.
So this hearing on the Housing Element was not accidental on the County’s part. Making the conscious decision not to place this discussion item on the agenda is another clear violation of both the Brown Act and the State Constitution, in addition to the holding of the hearing itself. Therefore, proving that the hearing was planned, and that the exclusion of its notice from the agenda was de facto premeditated was and is critical to our case.
However, CVP's extensive citation to the Evidence Code and relevant case law were rejected by the Court, without citation or reasoning. CVP then suggested that the Court narrow the discovery to documents that were used by the County and shown on the meeting video, and allow CVP a deposition of Mr. Crawford who read from those documents. The court also rejected that request, essentially denying CVP any and all discovery.
Since CVP's request for production of documents was unilaterally rejected by the County, and the Court allowed the County to do so, depositions would have been the best way for CVP to find out what really took place behind closed doors, and to clarify the glaring inconsistencies between what Supervisors Rice and Arnold declared to be true in their affidavits, and what they actually said on the record the day of the hearing. While CVP believes it had a right to this discovery and that the discovery would have more clearly revealed the County's scheming to avoid providing public notice, the exhibits introduced by CVP still provided the Court a glimpse into the County's machinations.
In any event, the case then moved into final arguments and rebuttals, based on the “facts and circumstances” that will determine the Court’s final decision.
On December 8, 2015, Judge Chernus issued his tentative ruling. He ruled overwhelmingly in favor of CVP. In his tentative ruling, Judge Chernus states,
The undisputed evidence shows that the Board was well aware of the public's continuing interest in the status and content of the Draft Housing Element, based on numerous letters to the Board of Supervisors and the vocal opposition received at previously held public hearings and information sessions throughout the County.
Construing the statute to give the fullest effect to its purpose - e.g., to ensure the public's right to be informed of the transactions and discussions undertaken by their elected officials, and to attend open meetings of the Board of Supervisors, the court concludes that notice of Director Crawford's planned report on the status of the Draft Housing Element should have been posted in a timely fashion on the meeting's agenda as required by § 54954.2(a)(I). The failure to do so violated the agenda rules of the Brown
And he further states that
Statements by the County Counsel and Supervisor Rice demonstrate they believe that the Board's past conduct was consistent with the Brown Act, from which the court concludes the County is not likely to change its practices if not directed to do so by this court.
And he concludes by saying
On this basis, Petitioner is entitled to a judicial declaration finding that
Respondent's decision not to post Director Crawford's report on the Draft Housing Element or the Board's discussion of that matter as an agenda item for this meeting, violated § 54954.2(a)(1) of the Brown Act.
For a complete transcript of his tentative ruling, please see the document attached below.
Needless to say, we were delighted with the judge’s ruling. It was fair, just, and extremely well-reasoned and filled with legal citations to back up its conclusions. However, this did not stop the County. The following day, the County requested yet another hearing, at which they asked the judge to reconsider his ruling.
This time the County was represented by County Counsel, Steve Woodside, and David Zaltzman, and they even brought Community Planning Director, Brian Crawford, with them as an “expert” in housing law. It was a show of political pressure and a blatant attempt to intimidate the Court that made no secret of the fact that the County would be very put out if the judge’s tentative ruling were to stand.
To put it simply, the County essentially tried to retry the case but without citing legal authority or presenting legal arguments. They pleaded hardship. They introduced strange new arguments, comparing their need to talk about the Housing Element that day as being analogous to the urgency surrounding the Sandy Hook shootings and the crisis of children dying for lack of being inoculated. They tried to confuse the judge by misstating the sequence of events, claiming that the whole thing was a normal reaction to public open time, when in fact, open time occurred after the hearing in question. They even argued that the Brown Act, itself, was just some "hyper-technical" statute that shouldn't be applied because it's such a "hardship" for the County to actually comply with the simple mandate to notice all discussion items: something state agencies, cities and counties have been doing for more than 40 years.
Even worse, the County argued that a “mistake” on their part shouldn’t be penalized (even though the tentative ruling is filled with evidence that this wasn’t a mistake but was clearly intentional).
I am not a lawyer, but all I can say, as a layman, is that the County’s arguments were one of the most bizarre things I’ve ever witnessed, anywhere. It was almost as if they were attempting to prevent the two Board Supervisors (Rice and Arnold), who had concocted this illegal scheme, from being exposed. And the County's attorneys continued disregard for the law and their disrespect for the Court is astonishing.
Yet, at the end of the day, Judge Roy Chernus said that he would not be able to issue his final ruling now and would have to take time to reconsider his tentative ruling.
CVP will now wait on the wisdom of the Court and pray that the Court sees fit to uphold its own tentative ruling and find the County guilty of its violations of the Brown Act.
The date of the Court’s final ruling is presently unknown.