Untitled California Attorney General Opinion

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

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"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.)

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