Roberts v. City of Palmdale, No. S028100

• Decision Date: 24 June 1993
• Docket Number: No. S028100
• Citation: 5 Cal.4th 363,853 P.2d 496,20 Cal.Rptr.2d 330
• Parties: , 853 P.2d 496 Charmaine ROBERTS, Plaintiff and Appellant, v. CITY OF PALMDALE, et al., Defendants and Respondents.
• Court: California Supreme Court

Page 330

20 Cal.Rptr.2d 330

5 Cal.4th 363, 853 P.2d 496

Charmaine ROBERTS, Plaintiff and Appellant, v. CITY OF PALMDALE, et al., Defendants and Respondents.

No. S028100.

Supreme Court of California In Bank.

June 24, 1993.

Barbara S. Blinderman, Jonathan L. Blinderman and Jeffrey S. Cohen, Beverly Hills, for plaintiff and appellant.

Quentin Kopp, San Francisco, Jonathan M. Coupal, Sacramento, and Mark Rosenbaum, Los Angeles, as amici curiae, on behalf of plaintiff and appellant.

Richards, Watson & Gershon, Pamela A. Albers, Marsha Jones Moutrie and Glenn R. Watson, Los Angeles, for defendants and respondents.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Jan S. Stevens, Asst. Atty. Gen. and Richard M. Frank, Deputy Atty. Gen., and Ariel Pierre Calonne, City Atty. (Palo Alto), as amici curiae on behalf of defendants and respondents.

MOSK, Justice.

In this case we answer three questions. Does the California Public Records Act (Gov.Code, § 6250 et seq.) require public disclosure of a letter from the city attorney distributed to members of the city council, expressing the legal opinion of the city attorney regarding a matter pending before the council? ¹ Is the transmission of the written legal opinion at issue in this case a "meeting" within the terms of the Brown Act (§ 54950 et seq.)? Was a 1987 amendment to the Ralph M. Brown Act intended to abrogate the attorney-client privilege as it applies to the communication of written legal advice by a city attorney to a city council? We answer all three questions in the negative and reverse the decision of the Court of Appeal. Because we reach this result, we need not consider the question whether the remedy ordered by the Court of Appeal was appropriate under the Brown Act.

I

The planning commission of the City of Palmdale approved a parcel map application, and appellant Charmaine Roberts, a resident and taxpayer of the city affected by the proposed development, appealed to the Palmdale City Council. The city council took up the appeal at a public meeting. Appellant's attorney wrote an eight-page letter to the city council, arguing that the approval of the parcel map was subject to legal challenge in several respects and concluding that unless it reversed the approval of the parcel map, the city council was "a willing party to this flagrant effort to undermine its own laws and will be vulnerable to a court action to overturn its decision."

The city council referred the letter to the city attorney and continued the hearing on the matter. The city attorney prepared a confidential written response that was distributed to the members of the city council. A public meeting ensued, at which the issues raised in the letter by appellant's counsel were discussed. At the hearing, appellant did not ask to see the letter from the city attorney to the city council, though the letter was referred to at that hearing. The city council denied the appeal and approved the map. Five days later, appellant's counsel demanded a copy of the city attorney's letter, arguing that the denial of the appeal and approval of the map were void if the city council had acted on the basis of secret communications. The city council refused to provide appellant with a copy of the letter from the city attorney.

Appellant petitioned for administrative mandamus, seeking injunctive and declaratory relief to void the action of the city council and require the city council to make the disputed letter public. She contended that the action of the city council in denying her appeal and approving the map application should be overturned because the council had violated the Public Records Act and the Brown Act when it failed to make public the letter it had received from the city attorney.

The superior court denied appellant's motion for summary judgment on her writ petition, concluding that even if appellant were correct that the document at issue was not privileged, there was no ground for voiding the city council's action. Appellant then moved for summary adjudication of the issue of privilege alone, contending that even if the city council's action was not void, she was entitled to a copy of the letter from the city attorney because the letter was a public document. The motion was denied on the ground of privilege. The court also held that the question of remedy was moot because the challenged parcel map had expired, and it denied the petition for administrative mandamus on that ground. This appeal followed.

The Court of Appeal reversed, holding that the city council had violated provisions of the Brown Act in receiving a confidential letter from its attorney about the legal points raised by appellant's attorney. The Court of Appeal made the crucial assumption that the receipt of a letter from the city attorney is a "meeting" within the terms of the Brown Act. Its conclusion followed naturally from that assumption, but, as we shall demonstrate, the assumption was mistaken.

The Court of Appeal accepted the determination of the trial court that the letter fell within the definition of the attorney-client privilege in that it was a confidential communication between lawyer and client within the meaning of section 952 of the Evidence Code. It noted that the Brown Act permits a city council to meet in closed session with its attorney only when the issue under discussion is "pending litigation." Again assuming for the purpose of discussion that the letter related to pending litigation, the court explained that section 54956.9 requires any such closed session to be announced publicly before the session may commence.

The Court of Appeal rejected the city's contention that the receipt of a letter from counsel is not the equivalent of a "meeting" within the terms of the Brown Act. The court explained that such an interpretation would allow public agencies to do indirectly what they cannot do directly, and relied on decisions holding the Brown Act applicable to informal meetings of local governing bodies. (See, e.g., Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 102-105, 214 Cal.Rptr. 561.) The Court of Appeal also turned to a recent amendment of section 54956.9 to support its conclusion that the attorney-client privilege available to local agencies is limited by the requirements of the Brown Act. The court concluded that the Brown Act adequately protects the interest of public agencies in maintaining the confidentiality of communications from counsel, because unless pending litigation justifies the assertion of the privilege, the public is not the adversary of the public agency and there is no need for secrecy between them. It determined that the city's failure to announce the "closed session" as required by section 54956.9 constituted a waiver of any attorney-client privilege, and ordered public disclosure of the letter in controversy.

II

A. The Public Records Act

The first question we must answer is whether the city council may assert the attorney-client privilege as to the letter at issue in this case under the authority of the Public Records Act, though the letter did not relate to pending litigation. ²

The Public Records Act, section 6250 et seq., was enacted in 1968 and provides that "every person has a right to inspect any public record, except as hereafter provided." (§ 6253, subd. (a).) We have explained that the act was adopted "for the explicit purpose of 'increasing freedom of information' by giving the public 'access to information in possession of public agencies.' " (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651, 230 Cal.Rptr. 362, 725 P.2d 470.) As the Legislature declared in enacting the measure, "the Legislature ... finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (§ 6250.)

A "public record" is defined as a "writing containing information relating to the conduct of the public's business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics." (§ 6252, subd. (d).) It is uncontroverted that the letter at issue in this case falls into this definition.

The act exempts certain public records from disclosure (see, e.g., §§ 6253.5, 6254, subds. (a)-(w), 6254.1, 6254.3, 6254.4, 6254.7, 6254.10, 6254.11, 6254.25), including "[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." (§ 6254, subd. (k).) By its reference to the privileges contained in the Evidence Code, therefore, the Public Records Act has made the attorney-client privilege applicable to public records.

Evidence Code sections 950 et seq. define the attorney-client privilege. Evidence Code section 951 defines a client for the purpose of the privilege as a "person" and Evidence Code section 175 defines "person" to include a "public entity." Ample authority acknowledges the right of public entities to assert the attorney-client privilege. (Vela v. Superior Court (1989) 208 Cal.App.3d 141, 150, 255 Cal.Rptr. 921; Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 824, 176 Cal.Rptr. 342 (Sutter Sensible Planning ); Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968) 263 Cal.App.2d 41, 53, 69 Cal.Rptr. 480 (Sacramento Newspaper Guild ); Cal.Law Revision Com. com., West's Ann.Evid.Code, § 951, p. 527; 2 Witkin, Cal.Evidence (3d ed. 1986) Witnesses, § 1114, p. 1054; 71 Ops.Cal.Atty.Gen. 5, 9 (1988); see also Holm v. Superior Court (1954) 42 Cal.2d 500, 508-509, 267 P.2d 1025; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 237, 175 Cal.Rptr. 292; Note, The California Public Records Act: The Public's Right of Access to Governmental Information (1976) 7 Pacific L.J. 105, 122, and fn. 96 (Public Records...