In an unpublished ruling, the California Court of Appeal for the Fifth District has decided that a court has no power to declare that a local public board or council’s past meeting practice, no matter how often repeated, violated the Brown Act so long as the body now says the practice has been “suspended.” The decision, while not representing case law precedent, represents a particularly keen frustration for the plaintiffs, but could lead to a quick legislative correction.

The late Richard McKee, co-founder of Californians Aware and the single most active Brown Act enforcer in the state’s history, filed the case in his own name last year to challenge the lawfulness of 30 or so unannounced but official luncheon meetings of the Tulare County Board of Supervisors, held in 2009 but “suspended” after the suit was filed. McKee’s initiative also led the California Newspaper Publishers Association (CNPA) and two local daily newspapers, the Tulare Advance-Register and the Visalia Times-Delta, to join him as co-plaintiffs. After McKee suddenly died last April, more than 100 other California newspapers joined in a friend of the court brief supporting the challenge.

The lawsuit was found wanting by the local superior court, which without any recourse to legal authority or serious analysis concluded that the taxpayer-billed gatherings, often held on the same day but prior to the regular open meetings of the board, involved discussions of office management issues not important enough to merit the public scrutiny required by the Brown Act.

The appellate court let that decision stand without reaching its rationale, holding instead that the remedy sought by the plaintiffs—a court declaration that these unannounced and private luncheon gatherings violated the Brown Act—was not available since the practice had been “suspended” by a supervisorial resolution.

Although seeking review in the California Supreme Court is a theoretical possibility, the high court seldom takes up unpublished cases, and even if it did, it would likely agree that declaratory relief is not available for past actions of a body where there is no evidence of a likelihood of repetition.  That’s how it disposed of a case involving a challenge to an action by the UC Board of Regents in 1999 under the Bagley-Keene Open Meeting Act.  Following that decision, CNPA quickly got an amendment to that law expressly allowing courts to rule on past actions, and that is probably what will have to happen with respect to the Brown Act now.