Judge Tosses Out Suit to Halt Late Night City Council Meetings

By Jorge Casuso

July 16 -- A Superior Court judge on Wednesday threw out a lawsuit filed by two City Council members that claimed late-night meetings limit the public’s right to address their elected officials.

Judge David Yaffe ruled in favor of the City’s anti-SLAPP motion, saying the complaint filed by Council members Bob Holbrook and Herb Katz did not allege that the council "intentionally" placed public discussion items at the end of meetings to stifle the public’s right to free speech.

The judge also ruled that Holbrook and Katz did not have the legal standing to sue, because they are on the same government body they are suing. In addition, the judge upheld the City’s demurrer, and did not allow the plaintiffs to amend and resubmit the case.

Despite the rulings, the plaintiffs haven’t given up on their case, which argues that late night meetings bring “irreparable harm” to the plaintiffs and deprive the public in general of the right to “address their local legislative representatives” during “reasonable hours.”

Rosario Perry, the attorney representing Holbrook and Katz, said he will appeal the case. In addition, Perry is contemplating filing a new case with different plaintiffs.

“I’m thinking about asking members of the community to step forward and become plaintiffs,” Perry said. “The new lawsuit would go back to Superior Court.”

City officials were confident that Yaffe’s ruling will stand.

“Anybody can appeal,” said Assistant City Attorney Joe Lawrence. “I think it’s a waste of time, because I’m quite confident in the judge’s ruling.

“As for other people filing, they too will likely have the same result,” Lawrence said. “I’m just surprised they would appeal.”

Perry disagrees, arguing that California’s anti-SLAPP legislation was recently amended to protect against abuses by defendants, such as the City, that undermine freedom of speech.

The amendment, which took effect January 1, “says that the traditional statutory SLAPP defenses don’t apply to plaintiffs who file lawsuits for the public good,” as was the case with Holbrook and Katz, Perry said.

“Clearly this lawsuit is on behalf of the people for the public benefit,” Perry said. “I just don’t think the judge understands.

“We believe the amendment applies to us, and that the City council people Holbrook and Katz filed the lawsuit on behalf of the public.”

Katz is confident an appeals court will overturn Wednesday’s ruling, which was based on “terrible logic.”

“I think (Yaffe) was entirely wrong and his premise was wrong,” Katz said. “His premise was that council members benefit” by making meetings shorter.

Katz said the lawsuit not only seeks to protect the public’s right to participate, it also protects staff.

“Staff stays there, and what happens the next day?” he said. “The public suffers.”

The suit lists the start and end times of all council meetings held between January and August 2003; four of the 18 meetings lasted until after 1 a.m.

Eight of the remaining meetings ran until after midnight, and the last recorded meeting on August 12 ran from 5:55 p.m. until 2:55 a.m. -- the equivalent of a nine-hour workday.

The suit recommends that “the City Council rearrange their agenda item 14 (public comment) so that it is called first between 6:00 p.m. and 8:00 p.m. to allow the public to attend and address the council.”

The suit also alleges that continuing meetings past 11 p.m. is a violation of the Brown Act. The City argued that the allegation was not true, and the judge agreed.

By granting the anti-SLAPP motion, the court can order the plaintiffs to pay attorney’s fees and costs.