Judge denies motion to dismiss Brown Act lawsuit against City of Fresno

A Fresno Superior Court judge denied the City of Fresno’s motion to dismiss a lawsuit alleging the city council’s budget committee violated state transparency law since 2018.

Judge Robert Whalen also denied a motion for judgment from the ACLU of Northern California and First Amendment Coalition — which jointly sued the city last fall over its budget process three months after a Fresnoland investigation.

Through outside law firm Aleshire & Wynder, LLP, the city made its motion for a judgment back in May, claiming the lawsuit had no legs to stand on. Part of the city’s argument was that the legal complaint was moot and was filed outside the statute of limitations.

On Wednesday in court, Whalen didn’t see it that way.

“I’m not satisfied that, at this point, the statute of limitation bars the petition, nor that the petition is moot based on some of the arguments that I’ve heard today,” Whalen said during the hearing.

Whalen’s denial of the motion for judgment from the ACLU and First Amendment Coalition was due to there being disputed facts that first need to be resolved between both parties, he said.

Fresno City Attorney Andrew Janz declined to comment on Whalen’s ruling. The city’s outside lawyers, Michael Linden and Anthony Taylor, declined to comment on any matters related to the lawsuit.

Annie Cappetta, a legal fellow with the First Amendment Coalition who argued for the petitioners Wednesday, said she was glad the court denied the city’s motion but disappointed her party’s motion was also denied.

“The case is not moot. It is not time-barred,” Cappetta told Fresnoland after the court hearing. “Those are distractions that the city was pressing with the court, so the court properly denied it, and I’m glad with that result.”

Cappetta added that the city is characterizing the council’s budget committee as a temporary committee, instead of a standing committee, but there is no dispute over the basic facts that it met on a recurring basis to negotiate the city budget in private.

For a little over an hour, both parties argued aspects of the case in front of Whalen. Before he became a Fresno County Superior Court judge, Whalen was a Clovis city councilmember. 

The case is not over, despite both parties’ desires for a swift ruling Wednesday. While the next hearing has not yet been scheduled, there will be more arguments in court before an eventual ruling down the road.

‘Every year it was a different ad hoc committee,’ Fresno City Attorney says

In February, Council President Annalisa Perea brought forth a proposal to change the city council’s process for creating committees. Additionally, Perea did not convene a budget committee during the budget process this June — a first for the Fresno City Council in at least six years. 

In court, Janz told the judge that Perea’s decisions were entirely unrelated to the ongoing lawsuit over the city’s budget process and the council’s budget committee.

At one point in the hearing, Whalen asked about the composition of the budget committee and whether its members changed annually. The city’s outside counsel deferred to Janz, who explained that it’s up to the City Council year by year.

Fresnoland’s 2023 investigation reviewed the city council’s committee assignments, which showed the budget committee was composed of three councilmembers, some of whom would stay on for multiple years. 

For example, Councilmember Luis Chavez was on the budget committee in 2019, 2020 and 2021. Other councilmembers spent two years on the budget committee, including Nelson Esparza and Tyler Maxwell, as well as and former Councilmember Esmeralda Soria. 

In the context of the Fresno City Council’s standing committees, Whalen asked why the finance and audit committee is seen as one council body that meets continuously, but the budget committee is not viewed the same. 

“Just to be clear, your honor, that our position is that every year it was a different (budget) committee, and every year was a different ad hoc (budget) committee,” Janz said.

“But you don’t have that position on the audit committee,” Whalen responded. “You don’t consider that to be an ad hoc committee, even though there’d be at least potentially new councilmembers every year appointed by the new council.”

“Well as to the ad hoc committee, I think there’s a different process for them to form, and I would have to go back and look at some of our bylaws,” Janz said. He added that the city’s position is that every budget committee formed between 2018 and 2023 “is a different one, with different priorities, looking at different numbers.”

Can a city council dissolve and reform a committee every year?

During the Wednesday hearing, Whalen also dug a little into the city’s claim that a temporary, ad hoc committee could be dissolved and reformed every year. 

“As far as you’re concerned,” Whalen asked, “if a budget committee was formed 50 years in a row, it would not become a standing committee, is that the city of Fresno’s position?

“I think that’s a fair position, your honor,” said Taylor, the attorney with Aleshire & Wynder, LLP. He added that such a scenario would only bolster the city’s legal stance that the current lawsuit is not compliant with the statute of limitation for filing a legal complaint. 

Cappetta pushed back against Taylor’s statute of limitations argument. 

“The violation of the Brown Act isn’t the formation of a committee,” Cappetta said. “The violation is meetings held in secret, without public participation, without opportunity for comment.” 

Cappetta added that the statute of limitations, according to case law, doesn’t begin to run until the last injury or when the illegal acts cease.

“Our cease and desist letter was sent in September 2023 well within nine months of those violations in June 2023,” Cappetta said, “and for that reason, it’s timely.”