Court of Appeal Upholds Dismissal of Lawsuit Alleging Brown Act Violations

(Read Opinion of the 5th District Courts of Appeal)

November 3, 2011

The California 5th District Court of Appeal in Fresno issued its opinion November 2 regarding a lawsuit filed against the Tulare County Board of Supervisors alleging Brown Act Violations and upheld an August 2010 Tulare County Superior Court ruling to dismiss the case.

Chairman of the Board of Supervisors Mike Ennis issued the following statement:

"The opinion by the 5th District Court of Appeal affirms the position of the Board that no Brown Act violations have ever occurred. The petitioners did not allege one fact that would support a lawsuit. The lawsuit was completely baseless and without any factual foundation."

Richard P. McKee, who passed away in April 2011, filed the lawsuit in March 2010 after reading a series of local news stories published by the Visalia Times-Delta in 2009. The Visalia Times-Delta/Tulare Advance Register and the California Newspaper Publishers Association later joined as plaintiffs. The plaintiffs argued that the Board of Supervisors violated the Brown Act - California's open meeting law - when eating meals together in numbers constituting a majority.

The Board of Supervisors maintained that they did not violate the opening meeting law by having lunch together because discussions had during those lunches were not within the scope of the Brown Act.

The plaintiffs tried repeatedly to bring litigation in the Superior Court. The Board challenged each petition they filed, contending the petitions did not allege facts that were sufficient to support a cause of action. After the lawsuit's dismissal in Tulare County Superior Court, the plaintiffs appealed to the 5th District Court of Appeal in September 2010.

In addition to upholding the Tulare County Superior Court's decision, the 5th District also awarded costs.  The County's motion for attorney's fees was stayed pending this Appeal.
"The plaintiffs assumed there was a violation of the Brown Act and then worked backward using speculation instead of facts in their lawsuit,” said Kathleen Bales-Lange, Tulare County Counsel. “We have always contended there was no basis for a lawsuit and yesterday the Court of Appeal agreed."