The California Court of Appeal has just published an opinion concluding that Proposition 59, the open government constitutional amendment enacted by voters in November 2004, did not eliminate a common law privilege insulating legislators from inquiry into their thought processes.  The issue was raised when a cardroom, suing the city of San Jose to invalidate an ordinance which the proprietor claimed created illegal burdens on its operation, alleged that the city council’s motive was to ruin its business. 

To try to prove this intent it made a discovery demand for a wide variety of documents in the paper trail of the ordinance’s adoption.  The city sought and obtained a protective order allowing it to withhold some of the documents, citing what the Sixth District Court of Appeal in its just published opinion in Sutter’s Place v. Superior Court (City of San Jose), called “the mental processes principle (precluding judicial inquiry into the motivation or mental processes of legislators in enacting legislation).” 

The cardroom’s appeal argued that Proposition 59 had in effect repealed this principle because it preserved in force only statutory and constitutional limits on access to information (not common law limits), and because there was an intent to abolish the deliberative process privilege, a related common law limit on access to information, as shown in the proposition’s ballot argument favoring public understanding of the deliberative process.

While there are a number of arguments to be made (and surely will be, on appeal to the California Supreme Court) why the opinion in Sutter’s Place is wrong, a central issue seems to be that this court, like several before it since passage of Prop 59, has read its positive access provisions narrowly—all but dismissively—and its allowance for limits on access broadly.  This interpretive approach is in flat contradiction to Prop 59’s own language, which states in part: “A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”

Is Proposition 59 a reflexive meta-rule that dictates how its own provisions are to be interpreted? If so, the opinion in Sutter’s Place is fatally defective.

Or is it just one more rhetorical sentiment that open government is desirable—a sentiment overlaid without effect on a hard ground riddled with secrecy? If so, the four out of five voters who approved adding it to the state constitution were wasting their time.