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In the case of "CVP/LC v ABAG," ABAG finally gives up: Guilty as charged

On May 31, 2019, Community Venture Partners (CVP) and Livable California (LC) filed a Petition for Writ of Mandate and Complaint for Injunctive Relief and Declaratory Relief against the Association of Bay Area Governments (ABAG) for violations of the Ralph M. Brown Act (California’s Open Meetings Law). After 2 ½ years of denial and obfuscation, ABAG surrendered to the inevitable. They had broken the law. That it took them all that time and likely hundreds of thousands of dollars in legal fees (paid for by taxpayers) to come to that point is astonishing. They could have avoided all of it with a simple mea culpa.

ABAG’s violation occurred at their January 2019 hearing when the Board of Directors met and voted to endorse the “Casa Compact,” a broad policy initiative driven by the Metropolitan Transportation Commission’s intention to standardize zoning across the region, strip cities and counties of local control, impose “regional” taxes, roll back environmental reviews, re-zone single-family neighborhoods for higher-density market-rate housing development, and more.

At that hearing, the Board voted their endorsement the but failed to “report out” the votes to the public; how each director had voted on the issue. The entire hearing was captured on video so there was no uncertainty about whether this reporting out occurred. Without question, this was a clear violation of the law. Full stop.

In 2013, the California State Legislature enacted SB 751, which amended and clarified the Brown Act in Government Code § 54953(c)(2), by adding,

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.

This was not a vague legal requirement nor is compliance a burden on an agency. SB 751 was needed because the absence of either a roll call vote or a tally of the votes made it impossible for the public to determine how their representatives had voted on a measure.

But, what was so unique about this in ABAG’s case was that the law ABAG violated was enacted specifically in response to these same violations by ABAG in 2012. So, the law that condemned ABAG’s illegal behavior was the result of ABAG’s past conduct!

In the end, we won a major victory in this case and for future petitioners demanding government transparency, but the road getting there was long and tortured.

Strong letter to follow

In April of 2019, CVP/LC sent ABAG a demand letter to “cure or correct” their violation. The ABAG Board responded through Deputy General Counsel Cynthia E. Segal, on the very last day they were legally required to do so.

In her letter, she adamantly denied ABAG had violated the Brown Act and said ABAG refused to cure the violation or to take any "remedial action,” whatsoever. She went on to suggest that agencies are allowed to violate the Brown Act so long as they can show that no one was "prejudiced" by their violation. Finally, she claimed that such violations don't count if it's not "willful" or "deliberate."

Not a single word of this was (or is) even remotely true. No wonder the legal profession is held in such low esteem. But no one would have guessed what transpired next.

Instead of simply admitting their violation at the start and re-scheduling a “do-over” for the hearing and the vote, (which would have “cured” the violation) ABAG embarked on a 2 ½ year scorched earth campaign to deny, deflect, object, motion, demurrer, distract and otherwise throw roadblocks in the path of a just resolution. And for no other reason than because they could. They were sure they could outspend, outlast, and ultimately bully their way to a “get out of jail free” card.

On May 31, 2019, CVP/LC filed a Petition for Writ of Mandate and Complaint for Injunctive Relief and Declaratory Relief in San Francisco Superior Court. CVP and LC were co-petitioners, but CVP managed the case for both parties, going forward.

Our day in court?

In anticipation of an August 12, 2019 hearing date, Hanson Bridgett LLP, ABAG’s high-powered lawyers, filed a Demurrer and Motion to Strike, on behalf of ABAG, asking the Court to dismiss the CVP/LC complaint. Hanson Bridgett made contorted arguments, mostly without legal citation or evidence, to allege that it doesn’t matter if they violated the Brown Act because in their opinion the overall outcomes would not have changed even if they had followed the law.

To read the ABAG Demurrer CLICK HERE.

Even though ABAG had now essentially admitted to their violation, instead of redoing the hearing, they had decided to cover it up by simply reading a notice at their next hearing that essentially said, ‘ABAG believes in following that Brown Act and will continue to do so.’ Their attorneys claimed this was sufficient as if it was up to ABAG to decide when and how a violation of California’s open meeting laws can be cured.

Unfortunately, the Brown Act, Government Code § 54960.2(c)(1), only 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]

The word “unconditional” means unconditional. It’s not vague. ABAG’s reading of their “notice,” which by the way was not agendized and therefore was yet another violation of the Brown Act (failure to give public notice on the meeting’s agenda) was not sufficient. The required unconditional commitment also had to be “approved by the legislative body,” meaning it had to be on the agenda as a “separate item of business, and not on its consent agenda” and the remedy needed to include an “actual vote” (an “action taken”) “upon a motion” by the body.

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

We objected to their nonsense, without any response from ABAG.

Hiring Hanson Bridgett was a predictable first step that big government agencies employ to attempt to intimidate plaintiffs to settle a case before it gets started. But that was child’s play compared to the antics to come from San Francisco Superior Court Judge Ethan Schulman at the trial.

Judge Schulman was supposedly the “go-to-guy” in the San Francisco court system for Brown Act cases. He ruled against CVP/LC on every count. His “logic” was incomprehensible. He misconstrued facts, illogically conflated issues, ignored black letter law, and bought ABAG’s creative legal “no harm, no foul” theory, without so much as a question.

Schulman even attacked the Brown Act, repeatedly disparaging it as a “hyper-technical” law as if to infer that it was somehow too burdensome on government and ultimately impossible to apply with any specificity. Questioning his conclusions pushed him over the edge, to the point that even after ABAG had agreed that they’d violate the law, he blurted out, “So what?!” [if the law was broken] “No one was harmed, the votes wouldn’t have changed the outcome, so what does it matter?”

As I noted at that time, Judge Schulman was hands down the worst jurist I’ve ever encountered. But his “no harm, no foul” theory spoke directly to what became the central issue in the case: Did the petitioners have to show that they were “prejudiced” by the violation by the agency? (ABAG) Schulman ruled that this mattered. We disagreed.

That ABAG held a vote without properly recording how members voted and who was present and who abstained, was an uncontested fact. That ABAG’s “cure” of that violation fell short of any definition of substantial compliance with the law, was unarguable. And, “So what?” was not a cogent legal theory upon which to make a reasonable decision.

We rolled our eyes and headed for the First District Court of Appeal.

Click here to read more about the Superior Court trial.

Changing horses

ABAG’s violation of the Brown Act was undisputed in this case. The argument ABAG’s legal counsel brought forward in the trial court was that the issue was “moot” because ABAG had “cured” the defect at their Board hearing, in May 2019, when its Vice President read casual remarks about ABAG’s adherence to the Brown Act. But ABAG’s attorneys pulled out all the stops in front of the Court of Appeal panel. They argued every hair-brained idea imaginable to try to confuse the judges and misdirect the blame. They filed every demurrer and motion they could think of.

In order to ensure the best outcome before the Court of Appeal, CVP brought on a seasoned Appeal Court litigator and specialist in the Brown Act, Paul Boylan. Mr. Boylan has had more than a dozen favorable decisions of record before the California Court of Appeal. He is also an Adjunct Professor at the McGeorge School of Law and a visiting professor around the world.

Mr. Boylan’s Opening Brief, filed on June 16, 2020, laid waste to ABAG’s voluminous nonsense. In it, he stated,

“It is shockingly ironic that ABAG’s historic penchant for holding secret votes by preventing the public from knowing how Board members voted prompted the Legislature to amend the Brown Act to include Section 54953(c)(2) thereby explicitly mandating public agencies to report the vote or abstention for “each member” of the executive body that voted in connection with any action. (AA 009:18-010:1-15.) Despite the complex legislative process for drafting, passing, and enacting Section 54953(c)(2), here we are again today, facing the same behavior on the part of the same public agency.”

The Court of Appeal speaks

The hearing before the Court of Appeal in the case of New Livable California and Community Venture Partners v. Superior Court in and for the County of San Francisco and Association of Bay Area Governments took about six months and resulted in a major win for co-petitioners Community Venture Partners and Livable California and for future petitioners in California. The Appeal Court said the Brown Act enforcement action brought by CVP/LC was improperly dismissed by trial court Judge Schulman and must proceed.

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

Further, on January 6, 2021, the First Appellate District Court of Appeal issued an Order Granting Publication of its opinion in the case of New Livable CA/Community Venture Partners v ABAG, stating that

“For good cause, the request for publication is granted. Pursuant to rule 8.1105(c) of the California Rules of Court, the opinion in the above-entitled matter is ordered certified for publication in the Official Reports.”

That meant their opinion was now case law. This opinion now has broad applicability and impacts throughout the state’s legal system. To put it plainly, this is a big deal.

The Appellate Opinion’s Analysis section addresses several primary issues. First, the trial court had found that Appellants had not and could not allege facts demonstrating legally cognizable prejudice as a consequence of any alleged violation of section 54953(c)(2). The Court of Appeal reversed this, holding that there is no requirement that a Brown Act complaint affirmatively allege prejudice. This was the fundamental argument that Hansen Bridgett brought and one that has been used (abused) by numerous government agencies for years.

Second, the trial court had found that the Appellant’s Brown Act violation complaint was moot because there wasn’t a live controversy between the parties. The Court of Appeal reversed this, holding (1) the trial court improperly took judicial notice of an ABAG statement; and (2) there was insufficient evidence to support a finding of mootness.

Third, and related to the second issue, the trial court had granted ABAG’s demurrer[1] to dismiss the LC/CVP case, claiming that the petitioners failed to make a viable claim. The Court of Appeal reversed this, saying that the trial court acted improperly.

Score so far: CVP/LC 3, Judge Schulman 0

This opinion was an important achievement in favor of transparent government. In issuing its opinion, the Court of Appeal allowed 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 affirms that California residents can file petitions to enforce the Brown Act without having to show they have personally been prejudiced by the agency’s violations.

The Final Stipulated Judgment

The First District Court of Appeal remanded the case back to the San Francisco Superior Court for a final ruling. The case was tried by a different judge because we objected to Schulman re-hearing the case. It dragged out for almost a year. Once again, ABAGs attorneys tried every tactic imaginable to delay a resolution and wear us out, hoping our side would settle for less than what was due.

But they were just putting off the inevitable. The Stipulated Settlement noted what everyone involved knew from day one.

The Court finds and declares, pursuant to Government Code sections 54960, subdivision (a) and 54960.2, that ABAG’s legislative body violated Government Code section 54953, subdivision (c)(2) when it failed to report out the individual votes of each member of the ABAG Board regarding the “substitute motion” described in Petitioners' petition.

What a colossal waste of time and money for Community Venture Partners, Livable California, and mostly for California taxpayers, just to get a bloated, over-staffed, over-funded, ‘what the heck do they do anyway?’ Government agency to follow the law.

Upon receiving the Appeal Court’s decision to publish, Paul Nicholas Boylan, CVP/LC’s appellate legal counsel, said,

“I am extremely happy with this result. By ordering that their opinion be published, the appellate court created new law that will help prevent government agencies throughout California from violating their duties to allow the public to participate in the conduct of the public's business.

“That's what this case is all about. The public cannot fully participate in governmental decisions if the public doesn't know how their elected or appointed representatives vote. This published appellate opinion makes sure that the public will receive information that is vital to the functioning of our democracy.”

As the founder and president of Community Venture Partners, I am extremely pleased with the outcome of this case, not just for setting a ground-breaking legal precedent, but also for its affirmation of our shared, common-sense understanding of justice and why we have laws like the Brown Act. As a result of diligently prosecuting this case through the courts, the final Court of Appeal opinion has changed state law in favor of all petitioners seeking justice.

I want to thank our original attorney, Jason Bezis, for taking up the challenge, and particularly our appellate counsel Paul Boylan, whose brilliance in arguing the intricate legal details in this case was nothing short of remarkable and proved to win the day.

I should also note that CVP itself received no compensatory, monetary damages, or awards. We were fortunate that our legal counsels worked on a contingency basis, so our costs were limited to filing fees, documents production, and miscellaneous court costs. If that had not been the case, we would never have been able to afford to prosecute it.

Throughout this ordeal, the arrogance and shameless imperiousness of ABAG was unbearable. This, by an agency that is supposed to democratically represent the public’s interests. After the years-long struggle ABAG put us through, I think of ABAG as I would any corrupt enterprise that has no regard, whatsoever, for the people of the San Francisco Bay Area or the cities and counties they reside in.

In my opinion, the only way to “cure” ABAG is for every single one of the city and county representatives who dutifully go to ABAG’s annual meetings and nod their heads obediently to whatever garbage they are fed, need to all get-together and quit the organization, en masse. That is the only way to expose ABAG for what it is; a hollowed-out front-man for MTC, perhaps the most rapacious, power-hungry state agency in California, which, like ABAG, enjoys nothing more than bathing in taxpayer funds.

As they say, ‘There oughta be a law.’

[1] A “demurrer” is defined as an objection that an opponent's point is irrelevant or invalid, while granting the factual basis of the point.

Bob Silvestri is a Marin County resident, the Editor of the Marin Post, and the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded by individuals and nonprofit donors. Please consider DONATING TO CVP to enable us to continue to work on behalf of California residents.