Regents of University of California v. Superior Court

• Decision Date: 01 June 1999
• Docket Number: No. S069688,S069688
• Parties: , 976 P.2d 808, 99 Cal. Daily Op. Serv. 4146, 1999 Daily Journal D.A.R. 5223 The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; Tim Molloy et al., Real Parties in Interest
• Court: California Supreme Court

Page 257

85 Cal.Rptr.2d 257

20 Cal.4th 509, 976 P.2d 808, 99 Cal. Daily Op. Serv. 4146,

1999 Daily Journal D.A.R. 5223

The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent Tim Molloy et al., Real Parties in Interest.

No. S069688.

Supreme Court of California

June 1, 1999.

Orrick, Herrington & Sutcliffe, Cynthia J. Larsen, Sacramento, Adam Gutride and Lynn Trinka Ernce, Sacramento, for Petitioner Gray Davis, as Governor.

James E. Holst; John F. Lundberg; Gary Morrison; Jeffrey A. Blair; and Christopher M. Patti for Petitioner the Regents of the University of California.

No appearance for Respondent.

ACLU Foundation of Southern California, Mark D. Rosenbaum, Daniel P. Tokaji, Peter Eliasberg, Los Angeles; ACLU Foundation of Northern California, Edward Chen; Karl Manheim, Los Angeles; James E. Wheaton; Elizabeth Pritzker, Oakland; Beth H. Parker; Juhu Thukral; Eva J. Paterson, San Francisco; and Michael Harris for Real Parties in Interest.

Steinhart & Falconer, Roger R. Myers and Joshua Koltun, San Francisco, for California Community News Corporation, the Copley Press, Inc., Los Angeles Times, the McClatchy Company, Press-Enterprise Company, Pulitzer Community Newspapers, Inc., San Francisco Examiner, San Jose Mercury News, California First Amendment Coalition, California Newspaper Publishers Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists (Northern California Chapter) and San Francisco State Univeristy Journalism Department as Amici Curiae on behalf of Real Parties in Interest.

Rothner, Segall & Greenstone, Glenn Rothner, Pasadena and Julia Harumi Mass, for California Teachers Association, Calfiornia Faculty Association, American Federation of State, County and Municipal Employees and Service Employees International Union as Amici Curiae on behalf of Real Parties in Interest.

Roy Ulrich, Santa Monica, for Common Cause as Amicus Curiae on behalf of Real Parties in Interest.

MOSK, J.

The Bagley-Keene Open Meeting Act (hereafter sometimes the act), which is set out at section 11120 et seq. of the Government Code, ¹ governs the conduct of state bodies and imposes on such bodies various obligations, including that they must generally give prior notice of their meetings, pursuant to section 11125, and must generally cause such meetings to be open and public, pursuant to section 11123.

We granted review in this cause to address two important questions of first impression.

One question concerns the right of action granted by subdivision (a) of section 11130 (hereafter section 11130(a)): "[A]ny interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of" the act "or to determine the applicability of" the act "to actions or threatened future action by members of" a "state body...." Does this right of action extend only to present and future actions and violations and not past ones?

The other question concerns the right of action granted by subdivision (a) of section 11130.3 (hereafter section 11130.3(a)): "Any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of obtaining a judicial determination that an action taken by a state body in violation of" the act's notice or open-and-public-meeting requirement is "null and void.... Any action seeking such a judicial determination shall be commenced within 30 days from the date the action was taken." Is this right of action limited by the thirty-day statute of limitations contained therein?

As we shall explain, we conclude that the answer to each of these questions is affirmative.

I

The Regents of the University of California are a corporation with full powers of organization and government over the university, subject only to specified control by the Legislature. (Cal. Const., art. IX, § 9, subd. (a).) The corporation is in the form of a board composed of 25 members. (Ibid.) It numbers seven members ex officio, including the Governor, and eighteen members appointed by the Governor and approved by the Senate (ibid.) -- who may, in their discretion, appoint a faculty member or a student member or both (id., art. IX, § 9, subd. (c)).

On July 20, 1995, having given prior notice, the Regents held an open and public meeting in order to consider two items listed on their agenda. At that time, the board comprised 26 members, including Edward P. Gomez, a student who had been appointed by the other members. Of the 26 members, 25 were present. One of the items was SP-1, entitled, Adoption of Resolution: Policy Ensuring Equal Treatment--Admissions, which, among other things, would prohibit the university from "us[ing] race, religion, sex, color, ethnicity, or national origin as criteria for admission to the [u]niversity or to any program of study," effective January 1, 1997. The other of the items was SP-2, entitled, Adoption of Resolution: Policy Ensuring Equal Treatment--Business Practices and Employment (or Employment and Contracting), which, among other things, would similarly prohibit the university from "us[ing] race, religion, sex, color, ethnicity, or national origin as criteria in its employment and contracting practices," effective January 1, 1996. The meeting spanned 12 1/2 hours. Following deliberations, the Regents approved both SP-1 and SP-2, the former on a vote of 14 to 10 with 1 abstention, the latter on a vote of 15 to 10. ²

On February 16, 1996, almost seven months later, Tim Molloy and the Daily Nexus (hereafter collectively Molloy) filed a complaint in the Superior Court of the City and County of San Francisco against the Regents, including, specifically, Governor Pete Wilson in his capacity as a regent (hereafter collectively the Regents); Molloy identified himself as a taxpayer and a staff reporter and campus editor of the Daily Nexus, and the Daily Nexus identified itself as a student-run newspaper serving the students, faculty, and staff of the University of California, Santa Barbara.

Molloy asserted a first cause of action against the Regents, based on a violation of the Bagley-Keene Open Meeting Act--specifically, its notice and open-and-public-meeting requirements. He alleged, in substance, that, prior to the noticed and open and public meeting of July 20, 1995, the Regents made a collective commitment or promise to approve SP-1 and SP-2, at a "meeting" of at least a quorum ³ of the board's members conducted in secret through a series of one-to-one telephone and other communications each initiated by the Governor. For a right of action, he impliedly relied on what is now section 11130(a). To the same end, he also expressly relied on section 11130.3(a). In anticipation of an affirmative defense based on that provision's thirty-day statute of limitations, he undertook to invoke against the Regents the doctrine that a defendant who has fraudulently concealed a cause of action may be equitably estopped from raising such a defense, alleging, in pertinent part, to the following effect: On August 3, 1995, he placed a telephone call to the Governor's press office; he asked an unidentified person whether the Governor had telephone or other communications with other regents regarding SP-1 and SP-2 prior to July 20, 1995; the unidentified person responded with a denial; over the following months, he submitted 28 requests to the Governor under the California Public Records Act, which is set out at section 6250 et seq., seeking disclosure of public records relating to telephone communications by the Governor with other regents; in response, the Governor refused disclosure; on January 17, 1996, through the Governor's several responses refusing disclosure, he was given reason to believe that the Governor had contacted at least 10 other regents concerning the proposed resolutions.

Molloy asserted a second cause of action, against the Governor, based on a violation of the California Public Records Act. He alleged his 28 requests to the Governor seeking disclosure of public records relating to telephone communications by the Governor with other regents, and the Governor's refusal of such requests. For a right of action, he relied on section 6258: "Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records" under this act.

As for the Bagley-Keene Open Meeting Act cause of action, Molloy sought relief including: (1) a declaration that the Regents violated the act by making a collective commitment or promise to approve SP-1 and SP-2, prior to the noticed and open and public meeting of July 20, 1995, at the alleged secret serial "meeting" of at least a quorum of the board's members, including the Governor; (2) a declaration that the Regents' approval of the resolutions at the noticed and open and public meeting of July 20 was null and void; and (3) an injunction prohibiting the Regents from implementing either of the resolutions on the ground that each was null and void.

As for the California Public Records Act cause of action, Molloy sought relief including: (1) a declaration that the Governor violated the act by refusing his 28 requests seeking disclosure of public records relating to telephone communications by the Governor with other regents; and (2) an injunction requiring the Governor to disclose such public records.

The Regents demurred to the complaint, the board as an entity and the Governor as one of its members each doing so in separate but complementary submissions. They objected that the Bagley-Keene Open Meeting Act cause of action did not state sufficient facts. In pertinent part, they argued to the effect that, under the facts alleged, Molloy did not have any right of...