McKee v. Orange Unified School Dist.

• Decision Date: 29 July 2003
• Docket Number: No. G030931.,G030931.
• Citation: 2 Cal.Rptr.3d 774,110 Cal.App.4th 1310
• Court: California Court of Appeals Court of Appeals
• Parties: Richard P. McKEE, Plaintiff and Appellant, v. ORANGE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

2 Cal.Rptr.3d 774

110 Cal.App.4th 1310

Richard P. McKEE, Plaintiff and Appellant, v. ORANGE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. G030931.

Court of Appeal, Fourth District, Division 3.

July 29, 2003.

Review Denied November 12, 2003.

Moskowitz, Brestoff, Winston & Blinderman, Dennis A. Winston and Barbara S. Blinderman, Los Angeles, for Plaintiff and Appellant.

Parker & Covert, Spencer E. Covert and Jonathan J. Mottm Tustin, for Defendant and Respondent.

OPINION

FYBEL, J.

Richard P. McKee appeals from the trial court's order denying his petition for entry of a writ of mandate based on the Orange Unified School District's (OUSD) alleged violations of the Ralph M. Brown Act (Brown Act), Government Code section 54950 et seq. (All further statutory references are to the Government Code.) The trial court denied McKee's petition because he "lacks standing to maintain this action as he is not a resident of the County of Orange and therefore, is not an `interested person,' within the meaning of Government Code Sections 54960 or 54960.1."

We conclude a citizen of the State of California is an "interested person" within the meaning of sections 54960 and 54960.1 and may sue a legislative body of a local agency as provided in those sections for violations of the Brown Act. We therefore reverse and remand the matter to the trial court for a determination on the merits of McKee's petition.

BACKGROUND

OUSD owned Barham Ranch in Orange County (County). Barham Ranch, which consisted of over 500 acres of undeveloped land, was bordered by County parklands on the north, south, and west. OUSD hoped to acquire an easement over County parklands to provide a means of access to Barham Ranch. OUSD learned the County was considering the adoption of an ordinance which would impose deed restrictions on County parklands and would make it more difficult for OUSD to obtain the easement. OUSD was concerned the County's proposed ordinance was directed at Barham Ranch "in order to reduce the value of that property, in the event of future acquisition of it by the County."

OUSD is governed by an elected seven-member board of education (the board). On June 14, June 28, and July 19, 2001, the board held closed sessions of regular meetings it described as "`CONFERENCE WITH LEGAL COUNSEL—POTENTIAL LITIGATION,' ... [¶] ... County of Orange Ordinance Adding Article 10 of Title II, Sections 2-5-300 and 2-5-501 on Park Use Restrictions on County Regional Harbors, Beaches, and Park Lands." OUSD explained the purpose of these closed session meetings was to discuss whether there were grounds for legal action against the County concerning the proposed ordinance. Special legal counsel for OUSD sent a letter to the County expressing OUSD's concerns about the proposed ordinance relating to Barham Ranch and OUSD's desire to acquire an access easement over the County's parkland property. The County responded, informing OUSD that OUSD would need to submit a written proposal for an access easement, including the location, size, and proposed use.

The board scheduled a special meeting for August 27, 2001. The agenda for that meeting included a closed session item 7A described as: "Conference with Real Property Negotiator [¶] Government Code 54956.8[¶] Property: Barham Ranch [¶] Negotiating Parties: County of Orange, Orange Unified School District [¶] Under negotiation: Price and terms of payment."

McKee is a resident and taxpayer of the City of La Verne, the County of Los Angeles, and the State of California. McKee describes himself as "active in pursuing claims for open government against legislative bodies in Southern California under the Ralph M. Brown Act ... in the past" and "President of the Board of Directors of the California First Amendment Coalition (`CFAC'), a group which advocates and defends the principles of the First Amendment and open government throughout California."

McKee was aware of the controversy over Barham Ranch. He also knew that residents living in the Barham Ranch area regularly reviewed OUSD's agendas because they were concerned about OUSD's intentions regarding the land and "want[ed] to preserve its character." McKee reviewed the agenda for the meeting scheduled for August 27, 2001. McKee believed the agenda was confusing because he thought it indicated a decision had already been made by OUSD to sell or transfer Barham Ranch. McKee attended the August 27 meeting and addressed his confusion about the agenda entry. McKee informed the board that during the closed session, "according to the agenda as worded, all the Board could discuss was the sale, exchange, or lease of all of Barham Ranch to the County." McKee explained "the agenda entry did not identify the identity of the OUSD's real property negotiator." The board then identified its negotiators, "but went into closed session without providing any other clarifying information."

After the closed session on August 27, the board made the following announcement: "In response to the County considering deed restrictions on all park property, the Orange Unified School District previously notified the County that it was interested in acquiring an access easement for use in connection with our Barham Ranch property. The County requested a written proposal, including location and size of the easement requested. [¶] The Board met in Closed Session tonight to discuss this matter and requested legal counsel to continue negotiations on this matter."

On August 30, 2001, McKee served upon OUSD a written demand for cure or correction of various Brown Act violations that he contended occurred on August 27. McKee alleged OUSD was "not authorized by agenda item 7A to hold a closed session to discuss the location and size of a potential easement that lies somewhere unidentified, within property owned by the County of Orange instead of the sale of Barham Ranch property."

McKee reviewed the board's agendas from March through July 2001. McKee concluded the board had improperly adjourned to closed sessions on June 14, June 28, and July 19, 2001 in violation of the Brown Act. McKee believed the agendas for those three meetings did not state whether the authority for the closed sessions was under subdivision (b) or (c) of section 54956.9, and no "existing facts and circumstances" justified those closed sessions.

On September 28, 2001, McKee received a response from OUSD, stating that on September 20 the board "took no action with respect to [McKee's] request to cure and correct."

On October 11, 2001, McKee filed a verified petition for a writ of mandate for an injunction and declaratory relief based on allegations that OUSD violated sections 54953, 54954.3, 54954.5, 54956, 54956.9, and 54962, part of the Brown Act. OUSD answered the petition and McKee responded to the answer.

McKee filed a motion in support of his petition for entry of a writ of mandate based on OUSD's violations of the Brown Act alleged in the verified petition. McKee sought an order requiring the board to: (1) rescind OUSD's closed session action of August 27, 2001; (2) tape-record all future closed sessions for a period of three years, and maintain these recordings according to law; (3) take discussion and action only on those items of business adequately described on a regular meeting agenda or a special meeting notice; (4) consider only the items of business, and no others, described on the posted notice of a special meeting; (5) announce the subdivision authorizing any closed session on anticipated litigation and make available to the public the "existing facts and circumstances," when required, upon which an anticipated litigation closed session is based; (6) consider and act upon in closed session only items of business properly "agendized" or noticed; (7) discuss and act upon in closed session only those items expressly authorized to be discussed and acted upon in closed session; and (8) report the vote or abstention of each board member present on each action taken in closed session.

McKee also sought a declaration that OUSD and the board were required to (1) take discussion and action only on those items of business adequately described on a regular meeting agenda or a special meeting notice; (2) consider only the items of business listed on the posted notice for a special meeting; (3) announce prior to the closed session the subdivision authorizing a closed session pursuant to section 54956.9 on anticipated litigation; (4) consider and act upon in closed session only the items of business properly agendized or noticed; (5) discuss and act upon in closed session only those items expressly authorized to be discussed and acted upon in closed session; and (6) report the vote or abstention of each board member present on each action taken in closed session.

A hearing on McKee's petition was held in June 2002. The trial court denied the petition on the basis that McKee "lacks standing to maintain this action as he is not a resident of the County of Orange and therefore, is not an `interested person,' within the meaning of Government Code Sections 54960 or 54960.1." McKee appealed.

DISCUSSION

A. OUSD's Motion to Dismiss Appeal Based on Mootness

Three months after McKee filed his notice of appeal, the board voted to sell Barham Ranch and entered into an acquisition agreement with the County. OUSD filed a motion to dismiss this appeal on the ground McKee's claims of Brown Act violations are moot because of the sale of Barham Ranch. OUSD contends any complaint about the sufficiency of agenda descriptions for discussion relating to OUSD obtaining an access easement for Barham Ranch over County property is moot because the sale eliminated the need for an access easement. This court ordered the motion to dismiss be considered in conjunction with the decision on appeal.

"A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief." (Woodward Park...