Wednesday, April 17, 1996
Alleged violations of open-meeting act will be investigated in
trial
By Michael Howerton
Daily Bruin Staff
Setting the stage for another struggle over the regents’
decision, a lawsuit seeking to reinstate affirmative action in the
University of California was ruled valid by a San Francisco
Superior Court judge on Monday.
In February, UC Santa Barbara Daily Nexus reporter Tim Molloy
filed the suit charging Gov. Pete Wilson and the UC Regents with
fixing their vote to eliminate affirmative action prior to the
meeting on July 20, thereby violating the Bagley-Keene open-meeting
act.
The suit is being argued by the American Civil Liberties Union
(ACLU) on Molloy’s behalf and is supported by various other civil
rights organizations throughout the state.
Judge William Cahill’s decision to allow the lawsuit to proceed
to trial was a defeat for the regents and Wilson, who argued the
suit was meritless and deserved to be thrown out. The regents and
the governor claimed there was no violation of the Bagley-Keene
Act, demonstrated by their 12-1Ž2 hour public meeting before
they voted on the issue at the July meeting.
"I’m very surprised and disappointed by the ruling," university
counsel Jeff Blair said. "The Cahill ruling is incorrect."
However, ACLU’s attorney for the plaintiff, Daniel Tokaji,
called Monday’s decision a victory for the truth and the public’s
access to information.
"This decision is fully consistent with California law," Tokaji
said. "This is a great victory for the public’s right to know. It
shows that you can’t conduct a secret meeting and get away with
it."
For months after the regents’ decision, Molloy requested a copy
of Wilson’s phone records for the week leading up to the vote in
order to determine whether Wilson engaged in conversations with a
number of regents.
Wilson had requested the suit be thrown out since it was filed
months after the 30-day period which the Bagley-Keene act allows
for challenges to administrative decisions. Judge Cahill, however,
decided to allow the suit despite the violation of the time
limitation. He said the 30-day period should not be interpreted as
absolute.
"While this Court recognizes the need for finality in a
governmental action," Cahill said in his decision filed yesterday,
"this Court finds that the absolute 30-day period to challenge a
governmental action under the Bagley-Keene Act would frustrate the
act’s underlying policy."
It is unreasonable to throw out the suit on the basis that too
much time had passed, Cahill said in his decision, since the public
deserves a remedy against governmental violations. The time
limitation must be open to interpretation since it is possible for
decisions to be reached secretly, and then not revealed until after
the 30-day limit, thereby leaving the public without recourse.
The lawsuit was allowed, Cahill ruled, since it fulfills the
need to determine whether the regents acted properly in voting to
eliminate all preferences based on race or gender in UC admissions
and hiring practices. The lawsuit does not challenge the decision
of the regents, but only how that decision was reached.
Blair argued that the case should be thrown out for other
reasons, too. Since Molloy was told there had been no contacts
between Wilson and the regents just prior to the vote, Molloy had
no legal right to sue for "fraudulent concealment," the attorney
said.
"Molloy is pleading fraudulent concealment," Blair said,
explaining that the law prohibits this in such circumstances.
"Also, the law requires action to be taken with reasonable
diligence  they did not act with diligence. For four months
they did nothing."
Wilson’s office and the regents are considering appealing the
decision and reiterated their belief that Molloy’s suit was
completely without legal merit, Blair said.
The suit should be thrown out on the basis of these
technicalities alone, he argued before the court on Monday. His
focus on these technicalities, however, in no way indicates that
the charges against the regents are legitimate, Blair was careful
to emphasize.
"The motion was neither the time nor the place to challenge the
substance of the claim," Blair said. "I don’t believe there has
been a violation."
In contrast, Tokaji said that the regents’ action demonstrated a
clear violation of the Bagley-Keene open-meeting act.
After the governor initially denied having any contact with the
regents before the vote, Molloy made repeated requests to see
Wilson’s phone records under the Public Information Act. All these
requests were refused, Tokaji explained, except the last one made
on Jan. 17, when Wilson responded that he had records of at least
10 contacts with regents in the week before the meeting, but
refused to turn over the records.
This discovery negates the defense’s argument that an
unreasonable amount of time transpired before the suit was filed,
Tokaji said, since the knowledge that there had been contacts was
only made available to Molloy 30 days before.
"The law is extremely clear that when there is fraudulent
concealment the stature (of 30 days) is suspended until the
plaintiff knows the cause of action," Tokaji said. "This decision
is absolutely legally correct. We want the truth and this (suit)
will allow the public to know the truth."
Tokaji said he is planning to depose many of the regents as well
as Wilson to ask what exactly was discussed between them before the
vote. "We want to know what happened during those phone calls," he
said.
Wilson has claimed that his phone records are exempt from the
Freedom of Information Act, citing that they are privileged
information. However, Cahill ruled that the defense of privilege is
"unavailing" and cannot be determined until the records are
examined by the parties or the court.
The judge overruled Wilson’s objections to the case and
determined that the case should proceed to court. Wilson and the
regents were given 10 days to respond to the charges against
them.
If the court rules that the regents’ decision was made in
collusion with Wilson before the open meeting, the board’s decision
to eliminate affirmative action will be rendered null and void.
However, nothing would prevent them from voting to eliminate the
policy again at their next open meeting.