A&A: What can be done about the California Legislature keeping the public out of the Capitol during COVID-19 pandemic?

SUBMITTED | MAY 5, 2020

Q: The Legislature reopened May 4 and bills are being discussed, amended, and voted on with zero public allowed in the Capitol or to meet with their representatives. I want to put them on notice that they cannot do this. I also want to discuss whether using 18USC S242; 18USC S245; and 42USC S1983 is possible to tell them they are acting outside the scope of law and will be personally liable for damages. California’s governor has abused his power for seven weeks and now the Legislature is helping it continue. The people were never meant to be excluded from the decision-making process like this.

A: Meetings of the California state legislature are governed by the Grunsky-Burton Open Meetings Act, Cal. Gov. Code §§ 9027-9033. Unfortunately, unlike the Brown Act, Cal. Gov. Code § 54950 et seq. (governing local agency meetings) or the Bagley-Keene Act, Cal. Gov. Code § 11120 et seq. (governing state agency meetings), the Grunsky-Burton Open Meetings Act does not have specific provisions granting members of the public the affirmative right to speak at meetings. If you wish to communicate your concerns about state legislative actions, you may wish to reach out directly to members of the Legislature to ensure your concerns are heard.

Additionally, as the U.S. Supreme Court has held, members of the state legislature generally enjoy immunity from suit for actions or decisions taken during the course of their legislative duties. See Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (“Legislators are immune from deterrents to the uninhibited discharge of their legislative duty…”). As such, a suit for damages against individual state legislators under federal civil rights laws is unlikely to bear fruit.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.

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