Ribakoff v. City of Long Beach

• Decision Date: 13 September 2018
• Docket Number: B279462
• Citation: 238 Cal.Rptr.3d 81,27 Cal.App.5th 150
• Court: California Court of Appeals Court of Appeals
• Parties: Joe RIBAKOFF, Plaintiff and Appellant, v. CITY OF LONG BEACH et al., Defendants and Respondents.

27 Cal.App.5th 150

238 Cal.Rptr.3d 81

Joe RIBAKOFF, Plaintiff and Appellant,

v.CITY OF LONG BEACH et al., Defendants and Respondents.

B279462

Court of Appeal, Second District, Division 8, California.

Filed August 24, 2018

September 13, 2018

Certified for Partial Publication.^*

Joe Ribakoff, in pro. per., for Plaintiff and Appellant.

Alvarez-Glasman & Colvin, Roger A. Colvin, Vincent C. Ewing, City of Industry, and Araceli Almazan for Defendants and Respondents.

GOODMAN, J.^**

Joe Ribakoff, a frequent attendee at meetings of the Long Beach Transit Company Board of Directors, filled out a public speaker's card and spoke on agenda item 10 at the board's August 24, 2015 meeting for the three minutes allowed each public speaker on an agenda item. When he rose to speak a second time on the same agenda item, it was during the board's deliberation and voting period. He was not permitted to speak, and, after a short exchange with the chair of the board, left the speaker's podium with the verbal assistance of a Long Beach Police Officer who routinely provided security for meetings. Later, Ribakoff filed this action, asking that we reverse the trial court and determine that the board's three-minute limit on public speakers is contrary to state statutes and federal and state free speech principles.

In the published portions of this opinion we address the standard of review to be applied and Ribakoff's claims under the Ralph M. Brown Act (the Brown Act; Gov. Code, § 54950, et seq. ) and the First Amendment, concluding that his claims lack merit. In the unpublished portions of the opinion, we conclude that Ribakoff correctly asserted his claim under the Government Claims Act ( Gov. Code, § 900 et seq. ) but that that claim, his Tom Bane Civil Rights Act (the Bane Act; Civ. Code, § 52.1 ) claim and his assertion of a claim under article I, section 3, subdivision (b)(2) of the California Constitution, lack merit.

FACTUAL BACKGROUND

The cause was tried to the court on August 5 and 8, 2015.

I. Plaintiff's Case-in-chief

Debra Anne Johnson (Johnson), the Deputy Chief Executive Officer of the Long Beach Public Transportation Company (LBTC), has worked for the LBTC since May 2014. She is familiar with its bylaws and has attended every board meeting while an employee of LBTC. The LBTC is managed by a board of directors (Board). At the beginning of the public comment section of each meeting of the Board, the Board chair "generally describes the process in which public comment will be accepted," including the rules to be followed. Johnson is not aware of any criminal laws being "enforced" at a meeting of the Board; nor does she recall being present at a meeting at which the Board voted on amending its rules on comments from the public. Typically, there are one or two members of the public who address the Board, either on an item on the agenda, or in the section of its meetings reserved for general comments by members of the public. The greatest number of members of the public who have spoken at a meeting is five. In only two instances that she recalls has there been "disturbing speech," which she described as a member of the public speaking for more than the allotted three minutes. On these occasions, the Board concluded its business notwithstanding the interruptions.

The Board held its regular monthly meeting on August 24, 2015, in the Long Beach City Council Council Chamber. Item 10 on the agenda that day concerned coordinating transit fares with other providers of transit services in Los Angeles County by adoption of the transit access program (utilizing "TAP cards") for patrons of the Long Beach Transit System buses to coordinate with bus service offered to patrons of other public transit services in Los Angeles County.

Ribakoff was in attendance, as had been his practice during the preceding two-and-a-half years. Prior to speaking that afternoon, Ribakoff had filled out the card required of all members of the public who wished to address the Board. The card contained a statement that the speaker would have three minutes in which to address the Board. Also, prior to Ribakoff speaking, the Board secretary advised him that he would have three minutes to address the Board on item 10. Staff members of the Board, and others invited to speak on item 10, addressed the Board concerning the item before and after Ribakoff; they were not limited to three minutes each. Thereafter, the Board began consideration of the matter, with the chair of the Board asking for "further discussion" among members of the Board, to be followed by the Board voting on the matter. Although this statement by the chair was directed to members of the Board, Ribakoff approached the podium in the meeting room and asked for permission to speak a second time regarding item 10. The chair declined Ribakoff's request and asked Ribakoff to leave the podium and return to his seat. Counsel for the Board advised that Ribakoff had used all of the time allocated to him to address the Board on this agenda item, but that the Board could allow him additional time if it wished to do so. Although he was not granted additional time, Ribakoff insisted that he be allowed to speak. There followed a verbal exchange between him and the chair, with each talking over the other. Either at the beginning or during this exchange with the Board chair, Ribakoff moved from behind the podium and appeared to approach the dais. To Johnson, the chair became uncomfortable. Another Board member went to get a City of Long Beach police officer, who appeared and approached Ribakoff. The officer and Ribakoff had a conversation, which Johnson did not hear. Following that conversation, the officer and Ribakoff left the podium area.¹ Johnson recalled considering Ribakoff's actions to be disturbing because the rules for public speakers, which he violated, had been clearly stated.

II. Ribakoff's Testimony

Ribakoff had been attending meetings of the Board for over two-and-a-half years as an interested citizen. In his view, public transportation is "poor transportation for poor people" and there is considerable need to improve it. During the years he has been attending meetings, all of the public speakers have respected the three-minute rule. There has never been a meeting delayed by a disturbance created by a member of the public who speaks at a meeting.

Ribakoff signed up to speak at the August 24, 2015 Board meeting. He had read the agenda for the meeting online prior to the meeting and decided to attend as, in his view, most members of the public in Long Beach did not have access to locations where TAP cards could be purchased. His intent was to bring to the attention of the Board what he believed to be the difficulty in purchasing TAP cards.

He recalled the meeting that day lasted approximately two hours. With respect to item 10, staff members and representatives of the Los Angeles County Metropolitan Transit Authority, who had been invited by the Board to do so, testified. When it was time for public comment on item 10, Ribakoff spoke for three minutes, but had not finished what he wanted to say when his time expired. He was the only speaker to criticize the program. After he spoke and had returned to his seat, another speaker disagreed with his statement on lack of availability of TAP cards. Ribakoff rose to speak a second time because he wanted to dispute the facts as presented by that speaker. However, he was not permitted to speak; his microphone was cut off; and he was invited to speak with the Board's staff after the meeting. When he got to his seat, he was approached by a police officer who ordered him out of the room under threat of arrest. A few minutes later, he returned to the meeting; moments thereafter the Board voted on item 10.

At the conclusion of the meeting, Ribakoff left the meeting room and was approached by the same police officer, who told him that if he spoke out of turn again he would certainly be arrested. The officer cited Long Beach Municipal Code (LBMC) 2.03.140, also writing that code section on the back of one of his business cards which he handed to Ribakoff. Ribakoff has not returned to Board meetings since then because he does not want to be arrested on what he considers to be a "really vague and improper law."

He later attempted to meet with individual Board members, but was denied contact information for them. He sent a letter to the Board secretary for distribution to members. Following that, he met with one Board member who told him she had never received his letter. In his view, it is pointless to speak with staff.

In September 2015, Ribakoff spoke by telephone with the general counsel of the Board, who had been present at the August meeting, following up on that conversation with a letter in which Ribakoff made several requests, including that, as an "interim rule," "if there are no more than [two] public speakers, ... each of them [would have] up to [five] minutes to speak." He also described the extant rule for public speakers as "unconstitutional."

The Board's general counsel responded by letter on September 22, 2015, advising Ribakoff that the Board's rules for public speakers were available online, would be printed on the card that persons wishing to speak would fill out when requesting time to speak at a Board meeting, and were available with the Board agenda for its meetings; the general counsel also forwarded a copy of the revised speakers policy, entitled "Information and Procedures Concerning Conduct at Board of Directors' Meetings." The three-minute limit for each speaker was not changed.

On cross-examination, Ribakoff acknowledged he had filled out a speaker's card, containing the following notice: "Comments shall be limited to three (3) minutes for all comments, unless different time limits are set by the Chairperson, subject to the approval of the Board."

Ribakoff also acknowledged having spoken for three minutes on item 10. When he approached the podium later and asked to...