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JULIAN JOSHUA, Dana Point
The peremptory dismissal by Judge Nathan Scott of the City’s ‘ex parte’ application for a Temporary Restraining Order (TRO) to stop the Beach Closure Order leaves many questions still unanswered, as regards both the Dana Point City Council’s bizarre closed session emergency meeting and the legal merits of the case itself.
The city attorney’s assertion in DP Times that the secret meeting was “in the spirit of the Brown Act” fails the laugh test. The Brown Act—also known as the Open Meetings Act—is intended to ensure transparency, not secrecy. The cryptic agenda for the meeting paid lip service to the letter of the Brown Act by referencing the relevant sections of the Government Code on exceptional situations but it was a million miles away from its spirit.
He also claimed that the Act defines “emergency” as “threatened disruption to public services” and hinted at potential disruption by protesters. In fact, “emergency” in the Act means “a (…) crippling activity, or other activity that severely impairs public health, public safety or both.”
As regards the supposed “emergency” (justifying dispensing with the usual 72 hours’ notice), one might ask, “What emergency?”
To be sure, there were rowdy protests in Huntingdon Beach, but we didn’t see any acts of civil disobedience (which isn’t the test anyway) in Dana Point. And what is the threat to public safety of protesters asserting their First Amendment rights, in support of the very arguments advanced by our council majority caucus? And if there was really going to be a riot, why not close streets and call in extra police resources rather than sue the Governor?
The Brown Act requires that as a rule, councils should not hold a closed session in an emergency meeting. Sensitive or embarrassing matters do not justify a closed session unless authorized by a specific exception. There is a “pending litigation exception” allowing the Council to consult its lawyer in private where “discussion in open session would prejudice the agency in the litigation.” The purpose is to permit the lawyer to give frank counsel, in which case one would hope Mr. Patrick Muñoz, the city attorney, advised that the law was clear and the application stood no realistic chance of success. The best argument they could come up with on “irreparable harm” was that if beaches were closed for the weekend “they could never be retroactively opened,” which is rather like saying a man cannot bathe twice in the same river. Just as disturbing is why it was not disclosed that Councilmember Joe Muller was simultaneously bringing an action for judicial review “in his personal capacity.” A lawsuit from the city could add a veneer of civic legitimacy to what many residents view as a naked political stunt.
Whatever one might think of the Governor’s reaction to the reports of overcrowded beaches, the law on this has been clear since Jacobson v Massachusetts in 1905. In matters of public health, a governor has broad statutory powers to issue emergency orders which the courts are required to uphold unless they “lack any real relation to public health.” It is no part of the function of a court to substitute its own opinion for the governor’s as to which modes of fighting a pandemic are most effective. As Judge Scott observed, Governor Newsom’s stay-at-home order has repeatedly survived constitutional attacks in federal and state courts—most of them brought by Mr. Muller’s lawyer.
We are now told that the city attorney offered to waive his firm’s fees. It would be interesting to know if this was in the meeting, or only after the judge threw out the TRO application and made it clear the main case stood no chance either.
The closet circumstances of this highly unusual “emergency meeting,” as well as the hopeless nature of the failed lawsuits, underline the need for public scrutiny of this whole bizarre episode.