Can a city council hold closed-session meetings to discuss bringing a quo warranto action against an elected official?

Answer

The Brown Act governs each meeting of a “legislative body” of a “local agency” in California, such as a city council. Govt. Code §§ 54951, 54952. Such meetings must generally be open to the public, with opportunity for public comment, based on an agenda made available to the public in advance, except to the extent the Brown Act specifically allows certain matters to be discussed in closed session.

The Brown Act allows a legislative body to hold “a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” Govt. Code § 54956.9(a).

For example, litigation is considered “pending” when “based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.” Govt. Code § 54956.9(d)(4).

According to Code of Civil Procedure section 803, a quo warranto action to remove a person from office “may be brought by the attorney general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise, or against any corporation, either de jure or de facto, which usurps, intrudes into, or unlawfully holds or exercises any franchise, within this state. And the attorney general must bring the action, whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor.”

As the Court of Appeal said, “Although the Attorney General occasionally brings a quo warranto action on the initiative of that office, or at the direction of the Governor, usually the action is filed and prosecuted by a private party who has obtained the consent of the Attorney General, for ‘leave to sue in quo warranto.’ The private party who obtains leave to sue is termed the ‘relator.’ The action is brought in the name of the People of the State of California ‘on the relation of’ the private party who has been granted permission to bring the action.” Nicolopulos v. City of Lawndale, 91 Cal. App. 4th 1221, 1228 (2001).

The Court of Appeal held that the term “private party” does not “exclude public officers and agencies from qualifying as relators” in quo warranto actions. People ex rel. Lacey v. Robles, 44 Cal. App. 5th 804, 817 (2020).

Accordingly, although the Attorney General must give permission to bring a quo warranto action, it is possible that a city serving as the relator could be considered a “party” to such a case for purposes of the Brown Act. If so, then perhaps a city council may meet in closed session to consider filing a quo warranto lawsuit with the Attorney General’s permission.