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CVP/LC v ABAG in San Francisco Superior Court - Round Two

On Labor Day weekend at the end of the summer in 1968, my girlfriend and I hitched a ride back to Manhattan from the beach in West Hampton, Long Island, with someone she knew from the City. The beaches were packed with college kids, that weekend.

Less than a mile into our trip, we were stopped by Suffolk County police, our car was searched from top to bottom, and we ended up being arrested because our driver had stashed a bag of weed in his glove compartment. At that time, possession of marijuana was a felony with a minimum sentence of 15 years and up to life in prison.

After spending a sleepless night in the County lock up, we were arraigned in front of a Justice of the Peace, who I think ran the local hardware store, and remanded into custody at Suffolk County State Prison. Several months after my brother posted my bail, I returned to Suffolk County to appear in front of the same Justice of the Peace in a Suffolk County Court Room, this time with legal representation.

When the proceedings began, my attorney filed a motion for dismissal of my case based on the illegal search of the car, which was done without cause or a warrant. The judge said we were stopped on suspicion of “poaching,” which gave the officers authority. When my attorney pointed out that the local police had stopped and arrested over 150 other college kids that same night (for suspicion of poaching?) and that the town had recently stated that they were intent on deterring college kids from descending on their small West Hampton towns in the summer, the judge’s eyes smoldered and he took a long beat.

Finally, he looked up at my legal counsel and then at me and said, “Well, the way I see it, if he wasn’t guilty, he wouldn’t be sitting in my courtroom.”

If you’d asked me a week ago what was the worst experience I’ve ever had with our justice system, I’d have told you that was it. But I was wrong.

Our day in court… sort of

On Monday, August 12th, I sat in the courtroom of Judge Ethan Schulman in San Francisco Superior Court, waiting for your case to be called. We were number “2” on the docket, but for reasons that remained unexplained, the Judge decided to call 5 other cases before ours. We were in court because ABAG had filed a “Demurrer,” which is a fancy word for saying they wanted the court to dismiss our case against them. We were there to make our verbal arguments as to why they were wrong to ask that.

When it was finally our turn, our legal counsel, Jason Bezis, rose to the podium to present our arguments. We knew going in that it was going to be an uphill battle. But just how uphill was a surprise.

Late in the afternoon, on Friday, August 9th, Judge Schulman had issued his Tentative Ruling. He ruled against us on every count. In my humble opinion, it reached conclusions that were incomprehensible. It misconstrued facts, illogically conflated issues, ignored clear, black letter law, and relied solely on ABAG’s creative legal theories.

In addition, before our counsel was allowed to speak, Judge Schulman laid into him saying ‘There is nothing you can possibly say that will change my mind and I’m really annoyed that I even have to sit here and listen to you but go ahead.’ [Paraphrasing]

I’ve never seen a judge do what Schulman did. At least that old Suffolk County justice of the peace was business-like about his prejudicial approach.

Schulman then went on to attack the Brown Act itself, and throughout the hearing repeatedly disparaged it as a “hyper-technical” law, inferring that it was somehow too burdensome on government and ultimately impossible to apply with any specificity.

Not to get to “hyper-technical” about it, but that’s just wrong.

What followed was, in my experience, quite remarkable.

As our counsel tried to make his points, he was interrupted and his points dismissed even before he could complete his sentences. He was repeatedly told, “Move on” and “I’ve heard enough on that.” When Mr. Bezis tried to present citations from the Brown Act, he was cut off by Schulman.

Thrown back on his heels but undeterred, Bezis struggled to at least get through his prepared remarks, but Schulman would have none of it. He continued to interrupt and started saying things like ‘I’ll give you one more sentence’ and ‘I’m stopping you.’[1] With each passing moment Schulman’s disinterest intensified. It appeared that Bezis’s citations of the law actually made Schulman even more impatient.

He seemed particularly annoyed when Bezis pointed out that the law clearly requires “recording of votes and abstentions,” regardless of a vote’s outcome, and that the prescription to remedy a violation required specific, publicly noticed actions – all of which ABAG failed to do. On that basis alone, Bezis stated, CVP and LC were entitled to Declaratory Relief.

This seemed to push Schulman over the edge. He looked down his nose at Bezis and said that his summation of this whole thing was simple. It was, “So what?!” (That’s an exact quote). ‘So what if everything you say happened, no one was harmed, the votes wouldn’t have changed the outcome,' he said, 'So what does it matter? So, who cares!?’ [Paraphrasing from my notes]

Wow.

So, let’s talk a moment about the facts in this case, and the law, and why I think it matters.

CVP / LC alleged that ABAG violated the Brown Act because they failed to “report (record) the votes and abstentions” on a substitute motion at their hearing.

SECTION 1. Section 54953 (c)(2) of the Government Code reads,

The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.

In their response to our Cease and Desist letter, ABAG had denied that they violated the Brown Act, even though they admitted that no record of the vote exists and the videotape of the hearing shows that no such recording took place of who voted for or again, or who abstained from voting on the motion in question. In addition, because they denied that a violation had occurred, in their response to us, they stated,

“[W]e have determined that no remedial action regarding the Board’s actions is required.”

However, on the 12th, ABAG came into court claiming that they had “remedied” this violation by having their Acting Vice President make a brief comment about how votes should proceed at the agency, based on conditions he set forth. But, in doing this, ABAG contradicted itself and had admitted that it had violated the Brown Act. After all, why would someone claim to have remedied a violation if they had not committed a violation?

So, that meant that at the time of the hearing on the 12th, there was no longer any disagreement among the parties as to whether there was a Brown Act violation. We both agreed there was.

Except for Judge Schulman, however, who disagreed.

That’s something you don’t see every day. The defendant admits they violated the law but the judge disagrees. Schulman didn’t see any violation because in his sole opinion and, I guess, ability to foresee all possible consequences to all possible parties, present and elsewhere, no harm came from it.

This is like me saying, “Your honor, okay, sure I ran the red light, but I didn’t run anyone over, so what’s the harm?” In other words, “So what?!”

Somehow I don’t think I’d get away with arguing that I should not be held accountable for the first infraction because I didn’t commit the second infraction. But putting that aside for the moment, since it was established that ABAG had violated the Brown Act, the question turned to whether or not their “remedy” was adequate.

CVP / LC alleged that ABAG’s attempt to remedy their Brown Act violation was inadequate because it failed to comply with the Brown Act requirement for an agency to make an “unconditional commitment” to cease and desist from future violations.

The Brown Act, Government Code § 54960.2(c)(1), permits a legislative body

to respond to a cease and desist letter with an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate this chapter. [Emphasis added]

and the law provides a form response. Section § 54960.2(c)(2) says that an

unconditional commitment … shall be approved by the legislative body in open session at a regular or special meeting as a separate item of business, and not on its consent agenda. [Emphasis added]

and that per Government Code 54952.6

action taken means … an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion. [Emphasis added]

I’m sorry if Judge Schulman considers these simple regulations too hyper-technical, but for the rest of us it means that the ABAG must make an “unconditional commitment” to adhere to the Brown Act, via a motion that was voted on by its members at a properly noticed public hearing.

My response to Judge Schulman’s complaints about the Brown Act being hyper-technical is this. Yes, it is. But aren’t all laws technical? Why is the speed limit 55 instead of 58? Why is the drinking age 21 and not 21 1/2? Why is the minimum, legal limit for your car’s tire tread 2/32nds of an inch? The answer is, no one knows, but it is still the law, regardless of how “technical” its compliance measures are.

ABAG’s “remedy” consisted of having Acting Executive Board Vice President Jesse Arreguin read a statement at the May 16, 2019, Executive Board meeting, stating the following:

“First I want to reiterate the process for voting on actions at our Executive Board meetings where support for, or against, a given action is less than unanimous. Under those circumstances, the Clerk will conduct a roll-call vote to report the vote or abstention of each member present and to determine whether there are a sufficient number of votes to approve an action. So, I just want to let everyone know, I will ask to see if there is unanimous consent to a particular item; if not, we will proceed to a roll-call vote on those items.” [Emphasis added]

So, why does this “remedy” fall short of the legal requirements?

First and most obviously because making a statement is not a “commitment” but, secondly, because the Government Code requires an “unconditional” commitment, not a commitment based on arbitrary, self-prescribed conditions.

Webster’s defines unconditional as being, “not subject to any conditions.” Synonyms include:

unquestioning, unqualified, unreserved, unlimited, unrestricted, wholesale, wholehearted; complete, total, entire, full, outright, absolute, downright, out-and-out, utter, all-out, thoroughgoing, unequivocal, positive, express, indubitable, categorical.

For an officer of an agency to state that the agency will adhere to the Brown Act’s requirement to “publicly report any action taken and the vote or abstention on that action of each member present for the action” only when “support for, or against, a given action is less than unanimous” is a condition!

A “conditional” commitment is categorically inadequate. But, there’s more.

As noted above, the unconditional commitment has to be “approved by the legislative body” (ABAG), meaning it has to be on the agenda and in the agenda packet as a “separate item of business, and not on its consent agenda” (and certainly not just in someone’s unagendized, casual remarks), and that the remedy must include an “actual vote” (an “action taken”) “upon a motion” by the body.

ABAG did none of the these. On this basis alone, CVP and LC were entitled to Declaratory Relief.

The inadequacies of ABAG’s legal arguments to the contrary are almost too long to list. The item was not a business item on the May 16th agenda, there was no public comment allowed (because it was not a separate item on the agenda)[2], there was no motion or vote on anything, and nothing about it even mentioned the Brown Act or our Cease and Desist letter as it was required to. And where is the "record" of the "vote" to make an "unconditional commitment?" Those are also Brown Act violations. The ultimate proof of all this is that nothing Arreguin said even showed up on the subsequent Minutes of the hearing.

Judge Shulman’s “So what?” legal theory

The Issue of Prejudice

Judge Schulman’s ruling rested on his claim that the CVP-LC case should be dismissed because we failed to show that we were “prejudiced” by the “alleged” Brown Act violations. He said that there was no harm because (a) a member of Livable California was in attendance at the hearing—so they saw what happened (which, of course, is why the lawsuit was filed), and (2) because they were in attendance, the burden of compliance with the Brown Act was removed.

I disagree.

First and foremost, the Brown Act is not a law that burdens the public, it's a statute about compliance by government agencies. Nothing the public does or fails to do (other than failing to file a complaint within the statute of limitations) effects the legal obligations of the agency. The Brown Act doesn’t prescribe public obligations, it prescribes government obligations.

Secondly, whether or not a complainant (CVP / Livable California) did or did not attend the hearing where the violation took place is completely irrelevant. The fact that someone was in a room when an illegal and unrecorded vote was taken is evidence against ABAG, not a get out of jail free card. That would be like saying, if someone attends a hearing, they are then somehow responsible for recording and providing evidence of who was present, who voted which way, and who abstained, and ABAG isn’t. In other words, under Schulman's theory, the requirements of the Brown Act can shift from the government to the public.

This begs the question, if the person attending was near-sighted and had forgotten their glasses that day, would Judge Schulman then say the Brown Act did apply to the agency?

Besides, CVP is also a complainant in this case and we were not in attendance, without any way to know how our elected representatives voted, so even if Schulman’s "prejudice" legal theory held, it could not be used to dismiss CVP’s claim.

Finally, much to Judge Shulman’s ire, Mr. Bezis pointed out that according to a recent California Court of Appeal ruling, Olson v. Hornbrook Community Services Dist. (2019) 33 Cal. App. 5th 502., it was decided that a petitioner is not required to allege (or defend) prejudice to state a cause of action under the Government Code (54960.1). The decision clearly states that petitioners do not need to allege facts demonstrating cognizable prejudice at the demurrer and motion to strike stage.

This and a host of other legal citations noted in Mr. Bezis’s Opposition to Demurrer and Motion to Strike, pages 6 - 8, meant that Schulman’s introduction of his “no prejudice – no foul” theory as his fundamental reason for disregarding all other facts, circumstances, and evidence, and dismissing our complaint was in contraction with the prevailing case law.

Schulman certainly must have known this, but apparently, didn’t care.

Conclusion

Judge Schulman cut the proceedings short and ruled in favor of the ABAG Demurrer and its motion to strike our complaint. His attitude was consistently biased throughout the hearing. So much so that ABAG’s counsel did not even present an argument. They just sat back and watched. It is an understatement to say they were pleased.

In my opinion, Judge Schulman’s bias clouded his reasoning. It seemed that he painted himself into a corner early on, then had no choice but to forge ahead.

In general, the policy of the prevailing law is for the courts to construe pleadings, such as the CVP- LC complaint, “liberally … with a view to substantial justice.” Code of Civil Procedure § 452. Further, a court cannot sustain a demurrer when the petitioner/plaintiff has stated a cause of action under any possible legal theory. Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 86. Where allegations are subject to different reasonable interpretations, the court must draw “inferences favorable to the plaintiff, not the defendant.” Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.

On to Round Three

Judge Schulman’s ruling leaves us no choice but to file an appeal. To do anything less would be to allow a decision to stand that eviscerates the Brown Act in a very fundamental way.

Judge Schulman clearly and incorrectly conflated all the arguments and complaints presented as if they needed to be decided as one single thing, when in fact, our complaint alleged several completely separate violations, which stood alone. Each one of them had to be decided on its own merits, and the failure of one did not impact the merits of the others.

That ABAG violated the Brown Act by entertaining a motion and holding a vote without properly recording how members voted and who was present and who abstained, is an uncontested fact. That ABAG’s “cure” of that violation fell far short of any definition of substantial compliance with the law, is unarguable.

And, “So what?” is not a cogent legal theory upon which to make a reasonable decision.


[1] I’m paraphrasing the judge’s comments since no actual transcript is available at this time.

[2] The greater irony here, particularly if ABAG is to claim that this was a legal remedy, is that this would then constitute yet another violation of the Brown Act for failing to put this item on the agenda.


If you support our position that we cannot allow public agencies to abuse their power and ignore the law at will, please donate to CVP to help fund legal costs.


Bob Silvestri is a Mill Valley resident and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area.