Daly v. Board of Supervisors of San Bernardino County, No. S260209
Read the amicus brief filed by the First Amendment Coalition
Update: On Aug. 9, 2021, the California Supreme Court reversed the Fourth District Court of Appeal (opinion).
Court: California Supreme Court
About the case: The San Bernardino Board of Supervisors filled a vacant board seat through a secretive process, ignored judicial orders to correct the violation and kept the unlawfully appointed member in place until she appeared as the “incumbent” on the ballot. Both the trial court and court of appeal found the secretive action ran afoul of the Brown Act’s open-meeting requirements. A key enforcement mechanism, on the books since 1986, says that a court can declare the body’s action null and void, thereby maintaining the status quo. The trial court ruled that “[t]he appointment of Dawn Rowe as Third District Supervisor is null and void.” However, the board of supervisors “sought to portray the status quo as Supervisor Rowe’s remaining in the Board seat,” FAC’s lawyers wrote in the brief. Board members also argue that the adverse court rulings should remain on hold while the case is litigated in the appellate courts.
This is a case of first impression: It appears to be the first time that litigation has arisen from a local legislative body’s violation of the Brown Act while filling the vacant seat of a board member ahead of an election.
FAC’s Position: The California Supreme Court should affirm the Fourth District Court of Appeal and do so in a manner that upholds the core transparency provisions of California’s Brown Act. Specifically, the court should recognize the legislative amendment made to the Brown Act in 1986 to give “teeth” to the act is inconsistent with the board of supervisors’ argument that the trial court’s order should have been automatically stayed upon the filing of a notice of appeal.
From the Brief: FAC takes no position on who should hold office in San Bernardino County or anywhere else. But FAC lawyers argue that “in a representative democracy, there can be no greater moment for transparency than when there is a vacancy to be filled on a publicly elected legislative body. Simply ignoring the Brown Act violation that occurred here — recognized by both the trial court and the Court of Appeal — will subvert the meaning and intent of the 1986 amendment and drain the Brown Act of its effectiveness going forward.”
FAC is represented by Thomas R. Burke of Davis Wright Tremaine and FAC Executive Director David Snyder and Litigation Director Glen A. Smith.
Date Filed: Oct. 15, 2020
More on open-meetings in California
For decades, as a public advocacy organization, FAC has advised and trained citizens, government officials, public interest groups, journalists and and a wide array of residents of California on the open meeting requirements of the Brown Act – procedures that ensure that citizens are able to provide meaningful oversight of decisions made by their local legislative bodies. Use our guide to public meetings in California and our Brown Act primer.