Open meetings act not retrospective, only prospective

CALIFORNIA–In early June, the California Supreme Court in San Francisco unanimously held that a right of action under the state Open Meetings Act extends only to “present and future actions and violations and not past ones.”

The court held that a college newspaper was barred from bringing a suit against California Gov. Pete Wilson and the Regents of the University of California under the Open Meetings Act. However, the court did remand the case for consideration of alleged open records law violations.

The court also held that suits to void actions taken in violation of the act must be brought within 30 days of the date the action was taken, regardless of when the public learns of the event.

In late July 1995, the Regents held an open meeting and voted to bar affirmative action in admissions or contracting at the university. The Daily Nexus, a student-run newspaper at the University of California, Santa Barbara, and its campus editor, Tim Molloy, sued the university and governor in February 1996. In the complaint, they alleged that the 26-member board of the Regents violated the Open Meetings Act in a series of one-on-one communications initiated by the governor prior to the July vote.

The court rejected the newspaper’s argument that the 30-day window to file suit should be extended where government officials fraudulently concealed meetings. The act’s 30-day statute of limitations differs from traditional statutes of limitations which allow for the application of the doctrine of fraudulent concealment, the court wrote.

Molloy and the newspaper also argued that the governor improperly denied requests for records relating to the serial telephone communications. Because both the trial and appellate courts did not address the issue, the high court ordered the case remanded to the trial court for consideration.

Attorney Daniel Tokaji of the American Civil Liberties Union of Southern California, which represented the paper, told The Los Angeles Times that the ruling “strikes a blow right in the gut of the open meeting act.”

“It provides a virtual recipe for public officials to act in secret and then get away with it,” Tokaji told The Los Angeles Times. “All they need to do is conduct a secret meeting, conceal it for at least 30 days, and they get off scot-free.”

The Reporters Committee for Freedom of the Press joined other media organizations in filing a friend-of-the-court brief, arguing that relief for past violations of the Open Meetings Act was both available and proper. The media group also unsuccessfully argued that the doctrine of fraudulent concealment should apply, thus extending the 30-day filing period.

In a concurring opinion, Justice Janice Brown wrote that executive branch officials should be permitted to discuss ideas serially outside the purview of open meetings laws. “[I]f public officials are to be pilloried, they ought to be guilty of some serious malfeasance or impropriety,” Brown wrote. “As things stand, they can be convicted of conversation — the kind of conversation we would ordinarily want to encourage.” Brown was joined by Justice Marvin Baxter. (Regents of the University of California v. Superior Court; Media Counsel: Daniel Tokaji)