When the Brown Act is violated, what court enforcement is available?

The remedies vary depending on the kind of violation or its consequences. If the object is to force the body to comply with the law when it is consistently failing to do so or insists that its conduct is lawful, the Act allows any person or the district attorney to file a lawsuit in the superior court seeking a declaratory judgment that the law has been or is being violated. This cause of action is usually coupled with an injunction ordering compliance. If the court finds that the body used a closed session for an unlawful discussion or action, it may order it to tape record its closed sessions (and preserve the recordings) for a certain period thereafter, to encourage compliance and provide evidence of repeated violations. The tapes are not public records but may be reviewed by a court in any similar subsequent lawsuit. Government Code §54960.

If the goal instead is to overturn a particular action taken in violation of the Brown Act, any person or the district attorney may file a suit asking the superior court to find that the body violated the Act in taking an action that should be therefore declared null and void. This remedy is confined to actions taken with unlawful secrecy (outside a public meeting) or unlawful surprise (at a public meeting, but not given adequate notice on the agenda). Lawsuits seeking invalidation of secret actions must be preceded by a written notice to the body, delivered no later than 90 days from the date of the alleged action, demanding a suitable “cure and correction.” To invalidate surprise actions, the notice period for demanding cure and correction is only 30 days. In any event no one has standing to sue who actually knew about the item at least 72 hours before the meeting at which action was taken. Once the body makes an unsatisfactory response to the demand, or when 30 days passes without response, the plaintiff has just 15 days to file the nullification action in court. The court may decline to nullify an action if:

  • the body has satisfactorily cured the violation;
  • the action dealt with the sale or issuance of notes, bond or other instruments of debt, or with the collection of a tax;
  • the action resulted in a contract with a third party who had no knowledge of a Brown Act violation and would be harmed by having the contract nullified (this does not apply to a salary or fee for professional services, which contract may be nullified). Government Code §54960.1.
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