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The First District Court of Appeal sends CVP/LC v ABAG back to the Trial Court

In a significant win for co-petitioners Community Venture Partners and Livable California (“CVP/LC”), the First District Court of Appeal has ruled that the Brown Act enforcement action brought by CVP/LC against the Association of Bay Area Governments (ABAG), for their violations of the state’s open meetings law, was improperly dismissed by trial court judge Schulman, and must proceed.

This is an important achievement in favor of transparent government. In issuing its opinion, the Court of Appeal is allowing CVP/LC to enforce the requirement in the Brown Act requiring public agencies to inform the public of how elected and appointed officials vote on matters important to the conduct of the public’s business. This case also involves legal issues that could ultimately lead to seminal changes in how the courts can and cannot interpret the law regarding standing of petitioners in the future.

To read the opinion of the First District Court of Appeal, CLICK HERE.

“The rule requiring that votes be reported out was put into the Brown Act to protect the public’s right to know how their elected and appointed officials vote on the matters that concern them,” said Paul Nicholas Boylan, the appellate attorney representing Community Venture Partners and Livable California. “The rule allows the public to hold elected and appointed officials accountable for their actions,” Boylan said.

For the complete background on the appeal brought by CVP/LC CLICK HERE.

The California Open Meetings Act (commonly referred to as the Brown Act) requires all votes on motions to be reported out to the public to show which public official votes yes, which voted no, and which abstained. However, during a public meeting held on September 17, 2019, the ABAG governing board voted on three motions that affected a regional housing and transportation development plan known as the CASA Compact. But the vote on two motions connected to the CASA Compact was held by a showing of hands. ABAG did not report the vote out showing which board members voted yes, no, or abstained.

In other words, there was no way members of the public, even those seated in the room, could reasonably record who had voted or how. The failure to report out votes is a tactic ABAG and other Bay Area agencies have used before to undercut the public’s right to participate in the conduct of the public’s business.

The great irony, in this case, is that ABAG’s historic penchant for holding secret votes and preventing the public from knowing how Board members voted prompted the State Legislature to amend the Brown Act to include Section 54953(c)(2), which explicitly mandates that public agencies report the vote or abstention for “each member” of the executive body that voted in connection with any action. Despite this, ABAG has continued to operate outside the law.

The bottom line is that the First District Court of Appeal has reversed Judge Schulman’s misguided ruling that dismissed the CVP/LC lawsuit--a decision that I have characterized in the past as one of the worst displays of judicial dereliction I’ve ever seen—and held that the CVP/LC complaint stated enough facts to support the lawsuit going forward.

The importance of this appeal outcome cannot be overstated. It strips ABAG of the erroneous arguments it made to secure its demurrer in the trial court and it potentially brings into play precedent-setting legal issues regarding the standing of plaintiffs in such cases, by addressing a gray area of the law about whether a plaintiff must prove that it was “prejudiced” by the agency’s violation. This legal issue has, in our opinion, been misconstrued by the courts for years in ways that unfairly favor government agencies.

We remain grateful to the Court of Appeal for allowing this case to proceed and look forward to resuming our arguments in San Francisco Superior Court.

Bob Silvestri is a Marin County 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. Please consider DONATING TO CVP to enable us to continue to work on behalf of Marin residents.