ROBERTS v. CITY OF PALMDALE (1992)

At the request of the Palmdale City Council, the City's attorney prepared a memorandum discussing an appeal from a decision of the City's Planning Commission.   Without first stating publicly its intent to do so, the City Council considered its attorney's memorandum in a “closed session” and refused to disclose it to an interested party.   Under the Ralph M. Brown Act (Gov.Code, § 54950 et seq.),¹ the City Council's failure to follow prescribed procedures for closed sessions defeats the City's claim of privilege and it is required to turn over the memorandum.   We therefore reverse the trial court's judgment denying a petition for writ of mandate filed to compel disclosure of the memorandum.

FACTS

The Planning Commission of the City of Palmdale approved a parcel map application in conjunction with a project to develop property under a previously issued conditional use permit (CUP).   Charmaine Roberts, an affected property owner opposed to the project, appealed to the City Council.   Roberts appeared at a public hearing scheduled to consider her appeal and, as part of her presentation, submitted a letter from her attorney, Barbara S. Blinderman, discussing the project and concluding with an admonition that approval of the application would leave the City “vulnerable to a court action to overturn its decision.”

The City Council gave the letter to its attorney, William B. Rudell, and continued the hearing to give Rudell time to prepare a written response.   When the public hearing resumed, the City Council discussed Blinderman's letter and a responsive memorandum prepared by Rudell—a memorandum made available only to the members of the City Council and not shared with Roberts or Blinderman.   After a lengthy discussion about Roberts' appeal and ancillary legal issues, the City Council voted unanimously to deny Roberts' appeal and to approve the parcel map.

A few days later, Blinderman wrote to the City Council demanding a copy of Rudell's memorandum ² and complaining that the Council's efforts to keep the memorandum confidential violated both the Brown Act and the California Public Records Act (§ 6250 et seq.).   Rudell responded for the City Council, rejecting Blinderman's demand on the ground the memorandum was exempt from disclosure as a confidential communication between attorney and client.

Roberts filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief against the City, the City Council and Rudell, alleging “secret deliberations” by the City Council and attacking both the approval of the parcel map and the refusal to disclose Rudell's memo.   While Roberts' action was pending, the CUP lapsed, the parcel map approval expired, and the project was abandoned.   Roberts, in turn, abandoned those portions of her petition attacking the parcel map approval.   She persisted, however, with her demand for disclosure of Rudell's memorandum and moved for judgment on her petition.   The trial court found the memorandum was privileged and this appeal is from the judgment thereafter entered.

DISCUSSION

 Roberts contends the City Council's failure to comply with the letter and the spirit of the Brown Act is fatal to the City's claim of privilege.   We agree.

 The Brown Act compels public agencies to conduct their business openly.  “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.   The people insist on remaining informed so that they may retain control over the instruments they have created.”  (§ 54950.)   To this end, all meetings of a local agency's legislative body “shall be open and public” except as otherwise provided in the Brown Act.  (§ 54953, subd. (a).)  And public disclosure cannot be avoided by resort to written communications in lieu of open meetings.   Agendas of public meetings and other writings distributed to the members of a city council by an employee or agent of the council for discussion or consideration at a public meeting are public records under the Public Records Act unless the writing is exempt from public disclosure under sections 6253.5, 6254, or 6254.7.  (§ 54957.5, subd. (a).) ³

Of the three statutory exemptions, only one could apply to this case.⁴  Under subdivision (k) of section 6254, disclosure is not required of records, “the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.”   The issues in this case involve the attorney-client privilege (Evid.Code, § 950 et seq.) and the work product privilege (Code Civ.Proc., § 2018) and, to simplify our analysis, we assume Rudell's memorandum qualifies as a confidential communication between lawyer and client within the meaning of section 952 of the Evidence Code (attorney-client privilege) and as a reflection of Rudell's impressions, conclusions, opinions, legal research and theories within the meaning of subdivision (c) of section 2018 of the Code of Civil Procedure (work product).   The parties do not contend otherwise.

 Characterization of Rudell's memorandum as privileged or work product is not, however, the end of the analysis.   Section 54956.9 authorizes the City Council, based on its attorney's advice, to confer with or receive advice from legal counsel in “a closed session” only when the issue under discussion concerns “pending litigation.”   As relevant to this case, litigation is “pending” within the meaning of section 54956.9 when, in the opinion of the City Council based upon the advice of its attorney, considering existing facts and circumstances, there is a significant exposure to litigation against the local agency.   We again assume the existence of the predicate facts and treat Blinderman's letter to the City Council as a “fact and circumstance” suggesting a “significant exposure to litigation.”   But—and this is the dispositive point—the fact that the issue under discussion concerns pending litigation is not enough.   The decision to address the issue in a closed session on the ground it relates to pending litigation and is therefore privileged must be made and announced publicly prior to the closed session.  (§ 54956.9.) ⁵

 This procedure was not followed.   To avoid the otherwise inevitable result of disclosure, the City contends, first, that writings are not covered by section 54956.9 because a “closed session” contemplates a meeting and not a communication in writing.   We disagree.   Adoption of the City's position would allow public agencies to do indirectly that which they cannot do directly, to avoid the requirements of section 54956.9 by routinely receiving legal advice in writing rather than orally at a formal closed session.   The Brown Act has been broadly construed to cover informal communications between members of public agencies (see, e.g., Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 102–104, 214 Cal.Rptr. 561) and nothing in the statutory scheme suggests a legislative intent to permit the use of writings to avoid the limitations otherwise imposed by section 54956.9.  (People v. Hull (1991) 1 Cal.4th 266, 272, 2 Cal.Rptr.2d 526, 820 P.2d 1036 [a statute must be construed in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts].) ⁶

 The City next contends the Rudell memorandum is exempt not as a privileged communication from lawyer to client about pending litigation but rather as the attorney's work product unrelated to litigation.   The City is wrong.   Communications between the City Council and its attorney unrelated to “pending litigation” within the meaning of section 54956.9 must be disclosed (unless exempted for some other unrelated reason) and cannot be withheld in reliance upon some perceived permeation of the attorney-client relationship.   Section 54956.9 leaves no room for debate:  “[A]ll expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated.   This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to [the Brown Act].”  (Emphasis added.)

As the Legislature's most recent expression on this point, section 54956.9 supersedes and supplants whatever exemptions might have existed prior to its enactment.⁷  (§ 9605;  see In re Thierry S. (1977) 19 Cal.3d 727, 745, fn. 17, 139 Cal.Rptr. 708, 566 P.2d 610;  see also 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 94, p. 148.)   The Legislature's unequivocal declaration that the pending litigation exception of section 54956.9 is “the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings” and the abrogation of all other expressions of the attorney-client privilege leave no room to doubt its intent to treat the work product “privilege” as part of the attorney-client privilege.  (Rosenthal v. Cory (1977) 69 Cal.App.3d 950, 953, 138 Cal.Rptr. 442 [the Legislature is presumed to know the existing law and have in mind its previous enactments when legislating on a particular subject”].)   Any other result would be anomalous—every communication from a city attorney to its public agency client in which the attorney expressed an impression or conclusion or opinion or theory would be exempt from disclosure.

We have no doubt about the Legislature's intent in this instance.   The 1987 amendment to section 54956.9 was part of Senate Bill No. 200, the purpose of which was “to clarify that ‘pending litigation,’ as defined by Section 54956.9 and Section 11126(q) [the equivalent provision applicable to state agencies], is the exclusive attorney-client privilege that local and state bodies may invoke to go into closed session.  [¶] The reason for this clarification is obvious.   There must be some limitation on the ability of governmental bodies to invoke the attorney-client privilege and, subsequently, close meetings to the public.   The absence of limitations is an invitation to abuse.   Conceivably, a body could request confidential legal advice on virtually all matters on an agenda.   Of course, the public would be excluded from these numerous closed sessions.”  (Sen. undated fact sheet, entitled “SB 200 (Roberti) Fact Sheet.”)  (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 219, 185 Cal.Rptr. 270, 649 P.2d 912;  7 Witkin, Summary of Cal. Law, supra, § 97, pp. 150–151.)

This clarification was necessary because two courts had “ruled that, absent specific legislation to the contrary, the Brown Act will not be construed to limit the availability of the traditional attorney-client privilege to local governmental bodies.  (Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 825, 176 Cal.Rptr. 342;  and Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968) 263 Cal.App.2d 41, 48–51, 69 Cal.Rptr. 480.)   This leaves local public agencies with broad freedom to go into executive session for confidential attorney-client discussion of virtually any issue which may involve ‘pending litigation’ or the ‘avoidance of litigation.’  [¶] SB 200 will eliminate this loophole by placing clear and reasonable limitations upon when local governmental agencies may hold closed meetings to discuss legal issues.”   (Letter from former Attorney General John K. Van De Kamp to Senator Robert Presley, May 13, 1987, supporting Sen. Bill No. 200;  see Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 218, fn. 9, 185 Cal.Rptr. 270, 649 P.2d 912.)

We return to our starting point.   The people of this state have not delegated to their public servants the right to decide what is good for the people to know and what is not.  (§ 54950.)   This was true when the Brown Act was adopted in 1953 (Stats.1953, ch. 1588, p. 3270, § 1) and it was equally true when section 54956.9 was adopted in 1984 (Stats.1984, ch. 1126, § 3) and amended in 1987 (Stats.1987, ch. 1320, § 5).   The Legislature has declared there is but one exception to this rule in this context and has provided for confidentiality between a lawyer and a public agency client when there is pending litigation within the meaning of section 54956.9.   As the Legislature recognized, any other rule would place insurmountable handicaps on a public agency prosecuting or defending a lawsuit, for its opponents could simply attend public meetings to determine the agency's strategies, defenses, strengths and weaknesses.  (See Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d at pp. 55–56, 69 Cal.Rptr. 480;  see also Letter from Senator David Roberti to Senator Bill Lockyer, Chair, Senate Judiciary Committee, dated April 28, 1987 [“The Legislature enacts [Sen. Bill No. 200] with full knowledge and awareness of the opinion in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968) 263 Cal.App.2d 41, 69 Cal.Rptr. 480.   All expressions of the attorney-client privilege other than the pending litigation expression, as codified in Section 54956.9, are repealed”].)

In all other situations—except as otherwise provided by other statutes for reasons unrelated to the attorney-client privilege (see, e.g., §§ 54956.7 [licensure of rehabilitated criminals];  54956.8 [negotiations regarding purchase or sale of real property];  54956.95 [joint powers agency allocations of payment of tort liability losses and related matters];  54957 [national and public security reasons and matters involving the employment or dismissal of public employees] )—there is no need for an attorney-client privilege to protect a public agency client because there is no basis for confidentiality or secrecy in the public arena.   The public is not the adversary of the public agency and it should not be treated as the enemy.  (Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs., supra, 263 Cal.App.2d at p. 58, 69 Cal.Rptr. 480 [as a barrier against public access to public affairs, the attorney-client privilege tends to suppress relevant facts and must be strictly construed].) ⁸

Accordingly, although we agree with the City that it is entitled to confer in confidence with its attorney about pending litigation, we find no hardship or handicap inherent in the rules fashioned by the Legislature to ensure that a claim of “pending litigation” does not become a subterfuge to avoid disclosure otherwise required.  (See Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 907, 205 Cal.Rptr. 92 [neither the presence of an attorney nor the happenstance of some kind of lawsuit may serve as a pretext for secret consultations when revelation will not injure the public interest].)   Had the Palmdale City Council complied with section 54956.9 by publicly announcing prior to the public hearing its intent to consider Rudell's memorandum in a “closed session,” the memorandum would not be subject to disclosure.⁹

 We hold that, on the facts of this case, the failure to comply with this statutorily compelled procedure constitutes a waiver of the “pending litigation” privilege.   We recognize, however, that this may not be the appropriate result in every case.   At the present stage of this case, a finding of waiver is non-prejudicial—every issue except disclosure has been abandoned by the interested parties—and, hopefully, it will deter similar lapses in the future.   But we do not think this ought to be an absolute rule.   Instead, we believe the waiver issue should be decided on a case-by-case basis, at least until the Legislature amends the statute to include a remedy for this type of violation.   When the harm caused by a finding of waiver would outweigh its deterrent, prophylactic, punitive or corrective effects, other more appropriate remedies can be fashioned.

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions to grant Roberts' petition for a writ of mandate compelling the Palmdale City Council to disclose Rudell's memorandum.   Roberts is to recover her costs on appeal, including reasonable attorneys' fees (§ 54960.5) incurred in the trial court and on this appeal, in an amount to be determined by the trial court and included in the judgment granting the writ.   As required by section 54960.5, costs and fees are to be paid by the City and shall not become a personal liability of any of the individually named defendants.

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Government Code.

2.   Rudell's memorandum was mentioned in a disclosed memorandum prepared by the City's Director of Planning to remind the City Council that it had “continued this appeal ․ after hearing public testimony and receiving a letter from [Roberts'] attorney regarding the matter.   Issues were raised in the letter which the Council felt warranted further review and response by the City Attorney.   Therefore, the Council continued the appeal․  The City attorney is preparing a confidential response for Council review․”

3.   Subdivision (a) of section 54957.5 provides as follows:“Notwithstanding Section 6255 or any other provisions of law, agendas of public meetings and other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by a member, officer, employee, or agent of such body for discussion or consideration at a public meeting of such body, are public records under the California Public Records Act ․ as soon as distributed, and shall be made available pursuant to Sections 6253 and 6256.   However, this section shall not include any writing exempt from public disclosure under Section 6253.5, 6254, or 6254.7.”

4.   The other two apply to initiative, referendum and recall petitions (§ 6253.5) and air pollution data (§ 6254.7).

5.   Section 54956.9 provides as follows:“Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding 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.“For purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated.   This section is the exclusive expression of the lawyer-client privilege for purposes of conducting closed-session meetings pursuant to this chapter.   For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:“(a) An adjudicatory proceeding before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator, to which the local agency is a party, has been initiated formally.“(b) (1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.“(2) Based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized pursuant to paragraph (1) of this subdivision.“(c) Based on existing facts and circumstances, the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.“Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state publicly to which subdivision it is pursuant.   If the session is closed pursuant to subdivision (a), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency's ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.“The legal counsel of the legislative body of the local agency shall prepare and submit to the body a memorandum stating the specific reasons and legal authority for the closed session.   If the closed session is pursuant to subdivision (a), the memorandum shall include the title of the litigation.   If the closed session is pursuant to subdivision (b) or (c), the memorandum shall include the existing facts and circumstances on which it is based.   The legal counsel shall submit the memorandum to the body prior to the closed session if feasible, and in any case no later than one week after the closed session.   The memorandum shall be exempt from disclosure pursuant to Section 6254.1.“For purposes of this section, ‘litigation’ includes any adjudicatory proceeding, including eminent domain, before a court, administrative body exercising its adjudicatory authority, hearing officer, or arbitrator.”

6.   The City is mistaken when it suggests a writing should be treated differently because it is a “physical thing” which the “court can easily review” to determine whether “a claim of privilege is appropriate.”   Under section 915 of the Evidence Code, a judge “may not require disclosure of information claimed to be privileged under [the attorney-client privilege] in order to rule on the claim of privilege․”The City is also mistaken when it claims the privilege limitation articulated in section 54956.9 does not apply to writings referred to in section 54957.5.   As the Legislature clearly stated, “[f]or purposes of this chapter, all expressions of the lawyer-client privilege other than those provided in this section are hereby abrogated.” (§ 54956.9;  emphasis added.)

7.   Section 54956.9 was enacted in 1984 (Stats.1984, ch. 1126, § 3) and amended in 1987 (Stats.1987, ch. 1320, § 5).   A form of the Public Records Act exemption (§ 6254, subd. (k)) was enacted in 1968 (Stats.1968, ch. 1473, p. 2946, § 39) and brought forward to the current version of the Act in 1981 (Stats.1981, ch. 684, p. 2484, § 1.5) and subdivision (k) has not been amended since that time.   The Brown Act's reference to the Public Records Act exemptions (§ 54957.5) was enacted in 1980 (Stats.1980, ch. 1284, p. 4343, § 24) and last amended in 1981 (Stats.1981, ch. 968, § 32).   The attorney-client privilege can be traced back at least to the reign of Elizabeth I and the concept of work product has existed at least since 1947.  (Berd v. Lovelace, Cary 88, 21 Eng.Rep. 33 (ch. 1577);  Hickman v. Taylor (1947) 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.)

8.   As the author of Senate Bill No. 200 explained in response to a letter opposing the bill, “just because [a] discussion has some legal component does not justify a closed session.   In fact, this is precisely the kind of information the public should have access to in order to understand the issue presented to the public body․  [¶] [Without the amendment,] a public body could justify a closed session whenever they asked their attorney a question.”  (Letter from Senator David Roberti to Mr. Charles Imbrecht, Chairman, California Energy Commission, dated September 15, 1987.)

9.   The City does not suggest there is any problem with the public announcement requirements but simply insists they did not apply because Rudell's memo is privileged.   As we have explained, we disagree.

VOGEL, Associate Justice.

SPENCER, P.J., and ORTEGA, J., concur.