Breathing life into a lawsuit that Gov. Pete Wilson had argued should be dismissed, a San Francisco Superior Court judge ruled Monday that the American Civil Liberties Union may go forward with its claim that Wilson and the UC Board of Regents broke the law when they decided to roll back affirmative action last summer.
The suit, filed on behalf of the UC Santa Barbara Daily Nexus and one of its student journalists, alleges that Wilson's private telephone conversations with several regents before the regents' historic meeting were in effect a "serial meeting" of the board. The state open meetings act requires that, with only a few exceptions, the regents meet in public.
Lawyers for Wilson and for the Board of Regents had argued in a hearing last week that the case should be dismissed because a 30-day statute of limitations barred the plaintiffs' claims, which were filed in February.
But Judge William Cahill sided with the plaintiffs, whose attorneys include the ACLU, the Lawyers' Committee for Civil Rights and other advocacy groups. Cahill said to construe the statute so rigidly would be "antithetical" to the intent of the open meetings act.
"While the court recognizes the need for finality in a governmental action, this court finds that an absolute 30-day period to challenge a governmental action under the Bagley-Keene Open Meetings Act would frustrate the act's underlying policy," Cahill wrote in his ruling, released Monday. "An absolute time period leaves the public without a remedy if the government decides to take an action behind closed doors and conceals such facts from the public. . . ."
Cahill's ruling allows the suit to proceed--a process that lawyers say will probably involve deposing many of the 26 regents to determine if the governor spoke with them in advance of the July 20, 1995, vote. If Wilson did contact eight or more regents--the board's definition of a quorum is nine--attorneys for the plaintiffs say they have high hopes they will prevail.
The suit seeks an injunction prohibiting the board from implementing its policy banning race and gender preferences in contracting, hiring and admissions. The suit also seeks a declaration nullifying that policy and asks that Wilson be required to release his telephone records, which he has refused to do, citing executive privilege.
The governor's phone records themselves will not prove anything about the substance of the conversations he may have had with regents. But the records would provide a road map that would help lawyers in making their depositions more fruitful.
Lawyers for the plaintiffs acknowledge that if they are successful, the board could easily reaffirm its policy by voting again in open session. But in the meantime, the suit creates an embarrassing situation for the board by alleging "back room" dealings.
The suit was filed on behalf of Tim Molloy, a reporter for the Daily Nexus, who says he has filed nearly 30 formal requests with Wilson's office seeking the governor's phone records under the public records act. While Wilson did not comply with those requests, the suit says, responses from his office suggest that records exist of phone calls between Wilson and at least 10 regents before the vote.
"This is just a wonderful victory for the public's right to know," said Dan Tokaji, a lawyer with the ACLU of Southern California. "It will allow the public to find out the truth of what exactly happened in the days before the [regents'] meeting."
The governor, Tokaji said, has thus far "been vigorously resisting our inquiries. We believe there's a good reason for that: He has something to hide."
Sean Walsh, the governor's spokesman, said attorneys were contemplating an appeal of Cahill's decision. "Our position has not changed," he said. "This suit is not only meritless and frivolous, but it was filed after the legal deadline."
Attorneys for the governor and the regents had argued last week that the state open meetings act was intentionally written with a brief, 30-day statute of limitations because legislators wanted to protect the finality of governmental decisions. Since the lawsuit was filed more than seven months after the alleged misdeeds, they argued, it should be dismissed.
But even from the bench, Cahill had seemed skeptical as he questioned Cynthia J. Larsen, the governor's attorney.
"If everybody colluded to fix a vote . . . and they didn't tell anybody, and they lied about it when asked about it, and the 30 days expires and then on the 31st day they said, 'Well, we all colluded and you can't touch us now'--you think the Legislature meant that to be true?" he asked.
"I absolutely do, your honor," Larsen replied.
Lawyers for the plaintiffs are basing their hopes for success on a 1985 ruling in a similar case. In it, Stockton Newspapers Inc. sued the city of Stockton's redevelopment agency, alleging that a series of nonpublic telephone conversations between agency members and their attorney constituted a meeting under the purview of the public meeting law.
A San Joaquin Superior Court judge ruled against the newspaper company, but that decision was reversed on appeal.