Judge Allows Student Suit Over UC Preference Vote

San Francisco Chronicle

April 16, 1996

Judge Allows Student Suit Over UC Preference Vote

By Pamela Burdman

Chronicle Staff Writer

A San Francisco judge gave a green light yesterday to a lawsuit charging that Governor Pete Wilson and the University of California regents violated the state's open meeting law last year when they voted to dismantle affirmative action throughout the nine campus system.

In the lawsuit, reporters for UC Santa Barbara's Daily Nexus charge that Wilson covertly lined up "yes" votes on the proposal in telephone conversations before the July 20 meeting. Lawyers from the American Civil Liberties Union, the Lawyers Committee on Civil Rights and other groups said the decision should be nullified.

Wilson has denied the allegation, and his attorneys pointed to a legal technicality to argue that the case should be dismissed: They said the suit was filed on February 16, nearly six months after the 30 day period required for such lawsuits.

Superior Court Judge William Cahill rejected that reasoning, saying that strictly adhering to the 30 day period would run contrary to the underlying purpose of the Bagley-Keene Open Meeting Act, a state law that requires public officials, including the regents, to con duct most meetings in public.

"An absolute time period leaves the public without a remedy if the government decides to take an action behind closed doors and conceal such facts from the public

for 3Q days after taking such actions," wrote Cahill.

The decision gives the plain tiffs the go-ahead to begin depositions of Wilson and key regents- a process they hope will reveal that Wilson and the regents formed a secret "agreement to agree" in the 10 days leading up to the landmark vote.

In an angry response, Wilson spokesman Sean Walsh said the governor is considering filing an appeal to a higher court. "The suit is not only meritless and frivolous, but was filed after the legal dead line," said Walsh.

On Friday, lawyers argued in Cahill's courtroom that Wilson's office engaged in "fraudulent concealment" by stalling on the students' queries about Wilson's phone calls to regents-information that was needed to build a case.

They said the 30-day period should have begun January 17, the day the governor's office finally revealed that Wilson had called at least 10 regents in the 10 days be fore the affirmative action vote.

Although Wilson staff members acknowledged that such re cords existed, they had refused to release them to the student reporters, citing executive privilege. In seeking a dismissal, the governor's lawyers also noted that even be fore contacting Wilson's office, the students wrote stories ahead of the historic vote claiming that Wilson had been calling regents. The lawyers made the unusual claim that those stories put the students on notice that a violation had occurred-eliminating the need for records from Wilson's office.

In his ruling, Cahill said he will need to examine the records be fore deciding whether they should be made public.

"This ruling means that neither the governor nor the Board of Re gents, nor any other public body can get away with violating the public meeting act by concealing their wrongdoing for 30 days," said Dan Tokaji, an attorney with the ACLU in Southern California.

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu