Sacramento Newspaper Guild v. Sacramento County Bd. of Sup'rs

• Decision Date: 12 June 1968
• Docket Number: AFL-CIO
• Citation: 69 Cal.Rptr. 480,263 Cal.App.2d 41
• Parties: The SACRAMENTO NEWSPAPER GUILD, Local 92 of the American Newspaper Guild,, etc., Plaintiffs and Respondents, v. The SACRAMENTO COUNTY BOARD OF SUPERVISORS, Eugene T. Gualco, James Phelan, Leslie E. Wood, Henry Kloss, and Frank O'Brien, Individually and as Members of the Sacramento County Board of Supervisors, Defendants and Appellants. Civ. 11685.
• Court: California Court of Appeals Court of Appeals

Page 480

69 Cal.Rptr. 480

263 Cal.App.2d 41

The SACRAMENTO NEWSPAPER GUILD, Local 92 of the American Newspaper Guild, AFL-CIO, etc., Plaintiffs and Respondents, v. The SACRAMENTO COUNTY BOARD OF SUPERVISORS, Eugene T. Gualco, James Phelan, Leslie E. Wood, Henry Kloss, and Frank O'Brien, Individually and as Members of the Sacramento County Board of Supervisors, Defendants and Appellants.

Civ. 11685.

Court of Appeal, Third District, California.

June 12, 1968.

As Modified June 20, 1968.

William P. Smith, Jr., and Richard A. Case, Sacramento, for plaintiffs-respondents.

Edward L. Compton of Flint & MacKay, Los Angeles, amicus curiae, Calif. Newspaper Publication-Association.

John B. Heinrich, County Counsel of Sacramento, Sacramento, for defendants and appellants.

Harold W. Kennedy and John D. Maharg, Los Angeles County Counsel, Los Angeles, amicus curiae.

FRIEDMAN, Associate Justice.

At the behest of plaintiff Newspaper Guild the trial court issued a preliminary injunction restraining the Sacramento County board of supervisors and its committees from holding any closed meeting at which three or more members were present except under the statutory exceptions for personnel and national security matters. The lawsuit was premised upon asserted violations of California's public meeting law, known as the Brown Act. (Gov.Code, §§ 54950--54960. ¹ ) The board of supervisors and its members appeal from the order granting the preliminary injunction.

Immediate occasion for the lawsuit was a luncheon gathering at the Elks Club in Sacramento on February 8, 1967. Participants were the five county supervisors, the county counsel, county executive, county director of welfare and several members of the Central Labor Council, AFL--CIO. The subject of discussion was a strike of the Social Workers Union against the county and the county's effort to enforce an injunction secured in connection with the strike. Newspaper reporters sought but were denied admission to the gathering. In their amended complaint the plaintiffs described not only the February 8 occurrence but alleged threatened future meetings of the supervisors, the county counsel and county executive with third persons selected by them.

Pending the appeal this court issued a limited writ of supersedeas permitting the supervisors to confer with the county counsel under conditions in which the lawyerclient privilege would obtain, but otherwise maintaining enforceability of the trial court decree. (Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 255 A.C.A. 71, 62 Cal.Rptr. 819.)

The Brown Act opens with section 54950, which states the law's intent that the 'actions (of local legislative bodies) be taken openly and that their deliberations be conducted openly.' ² At its core is section 54953, which declares: 'All meetings of the legislative body of a local agency shall be open and public * * *.' Both these declarations were in the original version of the Brown Act adopted in 1953. As the legislative body of a local agency, a county board of supervisors is subject to the act. (Secs. 54951, 54952.) One feature of the act is section 54957, which permits executive sessions to consider (a) matters affecting the national security and (b) employment and dismissal of personnel. The 1961 legislature made several additions to the Brown Act (Stats.1961, ch. 1671), among them a definition of the phrase 'action taken' in section 54952.6 and a new misdemeanor penalty provision in section 54959. ³

A provision of the Brown Act, section 54960, authorizes any 'interested person' to seek legal restraint against violations or threatened violations. Defendants do not question the Newspaper Guild's standing to sue. The complaint alleges that the Newspaper Guild is a labor organization composed of professional working newspaper men and women. Whether that allegation makes out adequate standing to sue is at least questionable. (See United States ex rel. Stowell v. Deming (1927) 19 F.2d 697, 698, cert. den. 275 U.S. 531, 48 S.Ct. 28, 72 L.Ed. 410; Adler v. City Council of Culver City (1960) 184 Cal.App.2d 763, 775, 7 Cal.Rptr. 805; Associated Boat Industries of Northern California v. Marshall (1951) 104 Cal.App.2d 21, 22, 230 P.2d 379.) The right to disclosure is an attribute of citizenship, not possessed in any increased degree by persons or groups whose interest in access to news is economic. (See Oxnard Publishing Co. v. Superior Court (1968) 261 A.C.A. 505, 513, 68 Cal.Rptr. 83.) Section 54950's broad declaration of the public's right to disclosure should logically extend standing to any county elector. Had the county raised the issue in the trial court, amendment of the complaint to add appropriate parties and allegations would have been little more than a matter of mechanics. Under the circumstances, there is substantial compliance with section 54960.

Although all five of the county supervisors were present at the Elks Club luncheon of February 8, 1967, and although the subject or discussion was a matter of county governmental interest, defendants contend that the trial court erred in viewing it as a meeting within the scope of the Brown Act. They rely upon Adler v. City Council of Culver City, supra, 184 Cal.App.2d at pp. 770--774, 7 Cal.Rptr. 805, which held the statute applicable only to formal meetings for the transaction of official business, inapplicable to informal sessions. The Newspapers Guild, on the other hand, argues that the 1961 amendments of the Brown Act were designed to nullify the Adler decision. (See 42 Ops.Cal.Atty.Gen. 61 (1963); Comment, Access to Governmental Information in California, 54 Cal.L.Rev. 1650, 1653--1655 (1966); cf. Herlick, California's Secret Meeting Law, 37 St.Bar J. 540 (1962).

Section 54953 is unequivocal in its central thrust upon official sessions for the transaction of official business, but somewhat ambiguous as it encounters peripheral gatherings or conversations among board members where public business is a topic. Interpretation to accomplish legislative intent is a truism of the law. Instead of appraising the accuracy of Adler as an interpretation of the pre-1961 law and analyzing the 1961 amendments so far as they bear upon Adler, we prefer to interpret the public meeting provision by examining the current enactment of which it forms a part. Attempts to define 'meeting' by synonyms or by coupling it with modifying adjectives involve a degree of question-begging. Interpretation requires inquiry into the Brown Act's objective and into the functional character of the gatherings or sessions to which the legislature intended it to apply.

There is nothing in the Brown Act to demarcate a narrower application than the range of governmental functions performed by the agency. Although the Brown Act artificially classifies it as a legislative body, a board of supervisors actually performs legislative, executive and even quasi-judicial functions. (Chinn v. Superior Court (1909) 156 Cal. 478, 481, 105 P. 580; Fraser v. Alexander (1888) 75 Cal. 147, 152, 16 P. 757.) Section 54950 is a deliberate and palpable expression of the act's intended impact. It declares the law's intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either. To 'deliberate' is to examine, weigh and reflect upon the reasons for or against the choice. (See Webster's New International Dictionary, 3d ed.) Public choices are shaped by reasons of fact, reasons of policy or both. Any of the agency's functions may include or depend upon the ascertainment of facts. (Walker v. County of Los Angeles (1961) 55 Cal.2d 626, 635, 12 Cal.Rptr. 671, 361 P.2d 247.) Deliberation thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.

The act supplies additional internal evidence that deliberative gatherings are 'meetings,' however confined to investigation and discussion. Section 54952.6 defines the phrase 'action taken.' (Fn. 3, supra.) This definition leads to two other provisions where this phrase, or an approximation of it, appears: the declaration of legislative intent in section 54950 and the misdemeanor declaration in section 54959 (fns. 2 and 3, supra). In section 54950 the notion of action-taking is juxtaposed to that of deliberation, indicating that deliberation and action, however they may coalesce, are functionally discernible steps, both of which must be taken in public view. The misdemeanor penalty in section 54959, in contrast, is limited to a meeting 'where action is taken.' Critics of open meeting laws have been troubled by the prospect of criminal prosecutions against public officials who make the wrong guess when confronted with an ambiguous situation. (See Comment, Open Meeting Legislation, 75 Harv.L.Rev. 1199, 1211 (1962); Comment, 54 Cal.L.Rev. supra, at p. 1662.) Apparently sharing this concern, the legislature has made the criminal sanction narrower than the law's declaration of intended coverage. Not every violation of the Brown Act is a violation of section 54959. The misdemeanor penalty is focused on the meeting where action is taken, not on the meeting confined to deliberation. The narrow, carefully designed criminal penalty evidences the act's broader scope when no crime is involved, that is, when deliberation is unaccompanied by 'action taken.'

Section 54952 defines the 'legislative body' of a local agency to include its committees. ⁴ Boards of supervisors have investigatory powers which they may delegate to committees, which in turn may 'send for persons and papers.' (Gov.Code, §§ 25170--25171.) Without troubling the lexicographers, one recognizes a committee as a subordinate body charged with...