Saturday, February 20, 2010

Brown Act Violation Verdict and Madison Nguyen

On Thursday, Santa Clara County Superior Court Judge Mark Pierce issued his order regarding the summary judgment motion on VACNORCAL's Brown Act claim against the City of San Jose and Madison Nguyen.  This is the first ruling on the lawsuit whether Nguyen and city council members violated the Brown Act during their refusal of naming a stretch of road on Story Road in San Jose  "Little Saigon".

Judge Pierce is a relatively new judge who replaced Judge James Emerson who had just retired last month. Judge Emerson was in charge of the case for the past 2 years.  Judge Pierce ruled against VACNORCAL  for an injunctive and declarative relief against the City Council. 

 Judge Pierce reasoned that there was sufficient corrective action taken by City Council when they capitulated to VACNORCAL's demand to have the name " Little Saigon" after realizing that they had violated Brown Act.  Thus, the City Council do not have to publicly admit that they had violated Brown Act and that there should not be any monetary judgement against the city. 

It is well known that VACNORCAL does not have money to hire the lawyer to take on the city.  Thus, they expanded the breadth of the lawsuit to include the demand for monetary relief so that they could pay the legal fees if they won.

 In doing so, their burden of proof is higher and Judge Pierce could not see any provisions in the Brown Act that can justify their cause of action.

Here are some of the main excerpts of the ruling by Judge Pierce:

...... The SAC (the Plaintiff) alleges and City Council demonstrates that City Council’s alleged use of a series of communications to deliberate on an item of business within the subject matter jurisdiction of the City Council was cured by its rescinding of Resolution No. 74127 on March 4, 2008. The Brown Act does not required – and Plaintiff does not cite to any section of the Brown Act that requires – a party to publicly admit any violoation.  The City's failure to cure its violation within 30 days is a one-time past offense that is unrelated to a present or future violation. Plaintiff has not clearly demonstrated that City and City Council have committed past actions and violations that are related to present or future ones, or that City and City Council's alleged violations are likely to recur....."

Councilmember Madison Nguyen, in her email to the Vietnamese-American community, declared the ruling showed that the City Council did not violate the Brown Act and it is now time to move forward.    The judge's ruling acknowledged that there was violation and it was not cured within 30 days as required by the Brown Act.  However, he sided with the City Council based on precedents and ruled against the public admission of  Brown Act violation and damages (or monetary relief) for VACNORCAL.

VACNORCAL has decided to appeal the ruling.