The ACLU, the Lawyers' Committee for Civil Rights and other advocacy groups filed suit Friday against Gov. Pete Wilson and the University of California Board of Regents, alleging that Wilson violated the state open meetings act by telephoning several regents before their historic vote last summer to roll back affirmative action.
The suit, filed on behalf of the UC Santa Barbara Daily Nexus and one of its student journalists, alleges that the governor's private, one-on-one conversations were in effect a "serial meeting" of the board. State law requires that, with only a few exceptions, the regents meet in public.
"A quorum or majority of regents, including Regent Wilson, violated the . . . act by forming a collective commitment" before the July 1995 vote, the suit alleges, "and by conferring in a 'back room' that was not open to the public."
The suit, filed in San Francisco Superior Court, seeks an injunction prohibiting the board from implementing its policy banning race and gender preferences in contracting, hiring and admissions. The suit also seeks a declaration nullifying that policy and asks that Wilson be required to release his telephone records, which he has refused to do, citing executive privilege.
Lawyers for the plaintiff acknowledge that if they are successful, the board could easily reaffirm its policy by voting again in open session. But in the meantime, the suit creates an embarrassing situation for the 26-member board, many of whose members will likely be deposed under oath.
If those depositions reveal that the governor did, indeed, speak with eight or more regents--the board's definition of a quorum is nine--attorneys say they have high hopes that they will prevail.
"What this case is about is the government's obligation to deal openly and honestly with the people," said Dan Tokaji, an attorney with the American Civil Liberties Union of Southern California. "By attempting to lock up the votes, Regent Wilson went behind the back of the people of California."
Sean Walsh, the governor's spokesman, blasted the suit Friday as "bogus." He questioned whether the lawsuit was valid, given that it was filed more than 30 days after the alleged violations. And he defended the governor's right to contact fellow regents privately.
"It's appropriate to . . . get as much information as possible prior to going into" a meeting, Walsh said. Before the vote, "the governor did have several phone calls with regents to explain his position that the current policies at the University of California are openly discriminatory."
But Walsh stressed that the governor "did not ask for regents' votes, nor did he at any time hold a meeting with a quorum of regents as alleged. . . . We expect a judge will throw [the suit] out."
UC deputy general counsel Gary Morrison, whose office represents the regents board, issued a brief statement defending the board's action. "There is no information to support the allegation that the open meeting law was violated," the statement said.
The suit asserts that Tim Molloy, a reporter for the Daily Nexus, has filed nearly 30 formal requests with Wilson's office seeking the governor's phone records under the public records act. While Wilson has not complied with these requests, the suit says, responses from his office suggest that records exist of phone calls between Wilson and at least 10 regents before the July 1995 vote.
The ACLU's Tokaji acknowledged that the phone records themselves would not prove anything. But they would provide a road map that would help lawyers in deposing the governor and other regents about the substance of their conversations.
"What were they talking about? Ball scores?" Tokaji asked.
Lawyers for the plaintiffs are basing their hopes for success on a 1985 ruling in a case that Tokaji described as "remarkably similar." In it, Stockton Newspapers Inc. sued the city of Stockton's redevelopment agency, alleging that a series of nonpublic telephone conversations between agency members and their attorney constituted a meeting under the purview of the public meeting law.
Each of the defendants in the case participated in a one-to-one telephone poll for the purpose of obtaining a so-called "collective commitment" to approve a particular item on the agenda of an upcoming meeting. A San Joaquin Superior Court judge ruled against the newspaper company, but that decision was reversed on appeal.
Karl Manheim, a Loyola Law School professor and one of the nine attorneys who joined in filing Friday's suit, said they expect the governor's attorneys to try to get the lawsuit dismissed on the grounds that it seeks to abridge his executive privilege. But Manheim believes the governor will lose.
"While the governor is governor he may enjoy executive immunities," Manheim said. "While he is a regent, he would enjoy only those immunities that the board of regents enjoy and we don't believe there are any here. He's wearing a different hat."
Asked whether the suit was a veiled attempt to preserve affirmative action, Ramona Ripston, executive director of the ACLU of Southern California, insisted that this was primarily a 1st Amendment lawsuit.
"In the long run, I'm not sure that it will help our belief that affirmative action should stay in existence. Our clients . . . feel very strongly that they are only interested in the public's right to know," she said.
The Daily Nexus' position, as put forth in a statement from editor in chief Suzanne Garner on Friday, is that it takes no position on affirmative action.
"Information obtained in a seven-month investigation suggests a violation of the open-meetings law," Garner said. "Our challenge is irrespective of the decision's content."
Members of the board of regents, who include Wilson, Lt. Gov. Gray Davis, Assembly Speaker Curt Pringle and other elected officials, as well as 18 appointed regents, were advised by counsel not to comment on the lawsuit.
Regent Bill Bagley said Friday that he would honor that request. But as the co-author of the Bagley-Keene Open Meetings Act--the law that the suit alleges was violated--he couldn't resist offering a brief comment.
"Gee," he said when told he was being sued for violating a law he helped write. "That's interesting."