Untitled California Attorney General Opinion ( 1995 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-311
of :
: July 25, 1995
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE QUENTIN L. KOPP, MEMBER OF THE CALIFORNIA
STATE SENATE, has requested an opinion on the following question:
May the legislative body of a local agency prohibit members of the public, who speak
during the time permitted on the agenda for public expression, from commenting on matters that are not
within the subject matter jurisdiction of the legislative body?
CONCLUSION
The legislative body of a local agency may prohibit members of the public, who speak
during the time permitted on the agenda for public expression, from commenting on matters that are not
within the subject matter jurisdiction of the legislative body.
ANALYSIS
The Ralph M. Brown Act (Gov. Code, '' 54950-54962; "Act")1 generally provides
that the legislative body of a local agency must hold its meetings open to the public except as expressly
provided in the Act. Section 54954.2 requires that "[a]t least 72 hours before a regular meeting, the
legislative body . . . shall post an agenda containing a brief description of each item of business to be
transacted." Our focus herein is on section 54954.3, which states:
1
All section references are to the Government Code unless otherwise indicated.
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"(a) Every agenda for regular meetings shall provide an opportunity for
members of the public to directly address the legislative body on any item of interest to
the public, before or during the legislative body's consideration of the item, that is
within the subject matter jurisdiction of the legislative body, provided that no action
shall be taken on any item not appearing on the agenda unless the action is otherwise
authorized by subdivision (b) of section 54954.2. However, the agenda need not
provide an opportunity for members of the public to address the legislative body on any
item that has already been considered by a committee, composed exclusively of
members of the legislative body, at a public meeting wherein all interested members of
the public were afforded the opportunity to address the committee on the item, before
or during the committee's consideration of the item, unless the item has been
substantially changed since the committee heard the item, as determined by the
legislative body. Every notice for a special meeting shall provide an opportunity for
members of the public to directly address the legislative body concerning any item that
has been described in the notice for the meeting before or during consideration of that
item.
"(b) The legislative body of a local agency may adopt reasonable regulations
to ensure that the intent of subdivision (a) is carried out, including, but not limited to,
regulations limiting the total amount of time allocated for public testimony on
particular issues and for each individual speaker.
"(c) The legislative body of a local agency shall not prohibit public criticism
of the policies, procedures, programs, or services of the agency, or of the acts or
omissions of the legislative body. Nothing in this subdivision shall confer any
privilege or protection for expression beyond that otherwise provided by law." (Italics
added.)
We are asked whether the legislative body of a local agency may prohibit members of the public from
commenting on matters which are not within the subject matter jurisdiction of the legislative body.
We conclude that it may do so.
In interpreting the language of section 54954.3, we find that several rules of statutory
construction are relevant. "When interpreting a statute our primary task is to determine the
Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the
Legislature chose are the best indication of its intent. [Citation.]" (Freedom Newspapers, Inc. v.
Orange County Employees Retirement System (1993) 6 Cal. 4th 821, 826.) "``[W]hen statutory
language is . . . clear and unambiguous there is no need for construction. . . .'" (Rojo v. Kliger (1990)
52 Cal. 3d 65, 73.) A "court has no power to rewrite the statute so as to make it conform to a presumed
intention which is not expressed." (Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365.)
"The sweep of a statute should not be enlarged by insertion of language which the Legislature has
overtly left out. [Citation.]" (People v. Brannon (1973) 32 Cal. App. 3d 971, 977; see also Wells
Fargo Bank v. Superior Court (1991) 53 Cal. 3d 1082, 1097.)
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Subdivision (a) of section 54954.3 allows public comment at an agency's meetings, but
only with reference to "any item of interest to the public . . . that is within the subject matter jurisdiction
of the legislative body." Under subdivision (b) of the statute, the legislative body is authorized to
adopt regulations, including ones which may limit the time to be spent on particular issues or which
may limit the time for each speaker. (See 75 Ops.Cal.Atty.Gen. 89 (1992).) Under subdivision (c),
the legislative body is restrained from prohibiting certain specified public criticism.
The legislative intent in enacting section 54954.3, subdivision (a) appears clear and
unambiguous--public comment is to be allowed only on matters that are "within the subject matter
jurisdiction of the legislative body." The statute does not grant the public the right to comment on
matters outside the legislative body's subject matter jurisdiction. To conclude otherwise would require
us to change the language of section 54954.3 to, for example, "within or without the subject matter
jurisdiction of the legislative body."2 Since a legislative body may only act within its subject matter
jurisdiction (see Brooks v. State Personnel Bd. (1990) 222 Cal. App. 3d 1068, 1072; B.W. v. Board of
Medical Quality Assurance (1985) 169 Cal. App. 3d 219, 233-234), it is entirely appropriate to limit
public discussion to such matters that serve the purposes of the legislative body in holding meetings.
Such determination, however, does not end our inquiry. We believe that the language
of section 54954.3 must be examined in light of the freedom of speech provisions of the federal and
state Constitutions. The First Amendment to the United States Constitution provides:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the government
for a redress of grievances."
Subdivision (a) of section 2 of article I of the California Constitution states:
"Every person may freely speak, write and publish his or her sentiments on all
subjects, being responsible for the abuse of this right. A law may not restrain or
abridge liberty of speech or press."
Section 3 of the same article provides:
"The people have the right to instruct their representatives, petition government
for redress of grievances, and assemble freely to consult for the common good."
In 75 Ops.Cal.Atty.Gen. 232 (1992) we were asked whether a school board could
prohibit election campaigning at a school that had been designated as a polling place. We set forth the
governing principles concerning the public's constitutional rights as follows:
2
This request for our opinion was prompted by the refusal of a legislative body to permit public comment regarding the
personal life of one of its members--a matter outside the subject matter jurisdiction of the legislative body.
3. 95-311
"1. Federal Constitutional Considerations
"The basic issue for resolution herein is what rights the public may have to
exercise political speech on a specific type of public property, that is, school property.
In Perry Ed.Assn. v. Perry Local Educator's Assn. (1983) 460 U.S. 37, 45-46, the
United States Supreme Court set forth the following rules regarding the right of free
speech on public property:
"``In places which by long tradition or by government fiat have been devoted to
assembly and debate, the rights of the State to limit expressive activity are sharply
circumscribed. At one end of the spectrum are streets and parks which "have
immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions." [Citation.] In these quintessential public forums, the
government may not prohibit all communicative activity. For the State to enforce a
content-based exclusion it must show that its interest is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve that end. [Citation.] The State
may also enforce regulations of the time, place and manner of expression which are
content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication. [Citations.]
"``A second category consists of public property which the State has opened for
use by the public as a place for expressive activity. The Constitution forbids a State to
enforce certain exclusions from a forum generally open to the public even if it was not
required to create the forum in the first place. [Citations.] Although a State is not
required to indefinitely retain the open character of the facility, as long as it does so it is
bound by the same standards as apply in a traditional public forum. Reasonable time,
place, and manner regulations are permissible, and a content-based prohibition must be
narrowly drawn to effectuate a compelling state interest. [Citation.]
"``Public property which is not by tradition or designation a forum for public
communication is governed by different standards. We have recognized that the "First
Amendment does not guarantee access to property simply because it is owned or
controlled by the government." [Citation.] In addition to time, place, and manner
regulations, the State may reserve the forum for its intended purposes, communicative
or otherwise, as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's view.
[Citation.] As we have stated on several occasions, "``[t]he State, no less than a private
owner of property, has power to preserve the property under its control for the use of
which it is lawfully dedicated.'" [Citations.]'
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"2. California Constitutional Considerations
4. 95-311
"As noted at the outset, California courts have construed the California
Constitution as being more protective of a person's right of expression than the federal
Constitution. An examination of recent California cases, however, discloses that
California courts have adopted the general ``public forum' concepts enunciated in Perry
as an analytical framework. (See Sands v. Morongo Unified School Dist. (1991) 53
Cal. 3d 863, 912, fn.4; Chino Feminist Women's Health Center v. Scully (1989) 208
Cal. App. 3d 230, 243-248.)" (Id., at pp. 235-238; see Clark v. Burleigh (1992) 4
Cal. 4th 474, 482-496.)
In White v. City of Norwalk (9th Cir. 1990) 900 F.2d 1421, the Ninth Circuit recently
applied these principles to a city council's refusal to allow public comment regarding a personal matter
involving a city official. The court stated in part:
"A more fundamental flaw in plaintiffs' position is that their first amendment
arguments do not take account of the nature of the process that this ordinance is
designed to govern. We are dealing not with words uttered on the street to anyone who
chooses or chances to listen; we are dealing with meetings of the Norwalk City
Council, and with speech that is addressed to that Council. Principles that apply to
random discourse may not be transferred without adjustment to this more structured
situation.
"City Council meetings like Norwalk's where the public is afforded the
opportunity to address the Council, are the focus of highly important individual and
governmental interests. Citizens have an enormous first amendment interest in
directing speech about public issues to those who govern their city. It is doubtless
partly for this reason that such meetings, once opened, have been regarded as public
forums, albeit limited ones. See Madison School Dist. v. Wisconsin Employment
Relations Comm'n, 429 U.S. 167, 175, 97 S. Ct. 421, 426, 50 L. Ed. 2d 376 (1976);
Hickory Fire Fighters Ass'n, Local 2653 v. City of Hickory, 656 F.2d 917, 922 (4th
Cir.1981).
"On the other hand, a City Council meeting is still just that, a governmental
process with a governmental purpose. The Council has an agenda to be addressed and
dealt with. Public forum or not, the usual first amendment antipathy to
content-oriented control of speech cannot be imported into the Council chambers intact.
In the first place, in dealing with agenda items, the Council does not violate the first
amendment when it restricts public speakers to the subject at hand. Madison School
Dist., 429 U.S. at 175 n. 8, 97 S. Ct. at 426 n. 8; see Cornelius v. NAACP Legal Defense
& Educ. Fund, 473 U.S. 788, 802, 105 S. Ct. 3439, 3448, 87 L. Ed. 2d 567 (1985) (public
forum may be created by government designating ``place or channel of communication.
. . . for the discussion of certain subjects'). While a speaker may not be stopped from
speaking because the moderator disagrees with the viewpoint he is expressing, see
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 60-61, 103 S. Ct. 948,
5. 95-311
963, 74 L. Ed. 2d 794 (1983) (Brennan, J., dissenting), it certainly may stop him if his
speech becomes irrelevant or repetitious." (Id., at p. 1425, fns. omitted.)3
Accordingly, a city council meeting constitutes a "limited public forum" (see also
Pesek v. City of Brunswick (N.D. Ohio 1992) 794 F. Supp. 768, 779-782) where the Legislature may
properly limit the matters to be addressed by the public to those topics "within the subject matter
jurisdiction of the legislative body," as it has done in section 54954.3 (see Madison Sch. Dist. v.
Wisconsin Emp. Rel. Comm'n, supra, 429 U.S. at 175; Cornelius v. NAACP Legal Defense & Ed. Fund
(1985) 473 U.S. 788, 802; White v. City of Norwalk, supra, 900 F.2d at 1425-1426). The provisions of
section 54954.3 are thus consistent with both the federal and state Constitutions.
However, we note that in adopting "reasonable regulations" pursuant to subdivision (b)
of section 54954.3, the legislative body must exercise care that the regulations themselves do not
violate the public's freedom of expression by being too broad or constituting a "prior restraint" on
expression. (See White v. City of Norwalk, supra, 900 F.2d at 1423-1424; see also New York Times v.
United States (1971) 403 U.S. 713, 714; Near v. Minnesota (1931) 283 U.S. 697, 712-721.)
In sum, we conclude that the legislative body of a local agency may prohibit members
of the public, who speak during the time permitted on the agenda for public expression, from
commenting on matters that are not within the subject matter jurisdiction of the legislative body.
*****
3
In Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm'n (1976) 429 U.S. 167, relied upon by the Ninth Circuit, the United
States Supreme Court stated: "Plainly, public bodies may confine their meetings to specified subject matter . . . ." (Id., at p.
175, fn. 8.)
6. 95-311