Election Section

Concerning Antonio Rossman’s remarks in the Oct. 7 Daily Planet, I would like to make several comments. Rossman says the following: “In the court’s words, ‘It therefore appears compelling that the statutory allowance for settlements in closed session not override extrinsic requirements for public proceedings.’ In lay terms and common sense: more important than settling city litigation is the right of citizens to learn in advance and influence the settlement terms.” 

Sorry, in lay terms, this part of the ruling eludes common sense. The court said, at the very beginning of its discussion: “First, the S.A. [Settlement Agreement] is intrinsically invalid because it includes commitments to take or refrain from taking regulatory actions regarding the zoning of Trancas’s development project, which may not lawfully be undertaken by contract. Secondly, the S.A. is also invalid as a municipal act because its adoption in closed council session violated the Brown Act. Because of this invalidity, the association’s further contentions under CEQA and the Map Act are moot.” 

Just following the passage Rossman quoted from the ruling is the following: “This would mean that a settlement approved in closed session could not include agreement to take government action that independently required a public hearing….” Now this is entirely moot and actually nonsensical, because the city could not take that action in an open session meeting, either, for the first reason given at the beginning of the court’s discussion. Requirements for future public hearings and all other such requirements cannot be contracted away, period. Individuals interested in wheeling and dealing should join the private sector and get the hell out of local politics.  

The Brown Act has nothing at all to do with the holding in this case, and this court does not do justice to the Brown Act issues. The premise is wrong —there is no “statutory allowance for settlements in closed session,” at least not under such circumstances as occurred in the LRDP lawsuit. The final approval, of course, may be held in closed session because that requires weighing and assessment of the settlement offer and not just the mere reporting of it. Legal analysis may always be discrete, but the mere reporting of the offers and negotiations must always be done in open session. That is the law. 

Mind you, the effect of this ruling was only to invalidate the settlement agreement. The logic of this ruling might invalidate the settlement agreement in the LRDP lawsuit here in Berkeley, but it would not allow the setting aside of the voluntary dismissal or the reopening of the case challenging the LRDP. It is true that a notice of settlement presages a dismissal, but a voluntary dismissal is not contingent upon the settlement. The dismissal would stand with or without a settlement. Upon the invalidation of the settlement agreement, the LRDP would still stand, and the citizens, having won the battle, would still have lost the war.  

My motion and appellate petitions are the only way to win the war. My petition for review was just denied by the California Supreme Court. Now the preliminaries are out of the way and I can begin my real mission: appeal to the U.S. Supreme Court. I expected a biased court in California— it only stands to reason—a single citizen taking on two of the largest behemoths in the state will not do well within that state, unless the judiciary is of sterling character, which was apparently not the case.  

Moreover, I feel that it was not so much me or my arguments that were shut out, but God Himself, or Truth Itself. These justices heard the ring of truth and did not like the sensation—that was the major problem, in my opinion. Pardoxically, I may get a better result from the Roberts court, if indeed he is as open to God as he claims. We obviously disagree on the political implications of religious belief, but the mere openness to God or Truth may actually be there and facilitate their ability to actually hear the motion. He that hath ears let him hear. 

With respect to Rossman’s admonition that “Berkeley should now suspend all action to implement the settlement with UC pending finality of the Malibu case,” of course he is right, except insofar as the objectionable clauses may be severable. The failure to do as Rossman suggests will point once again to the complete disingenuousness of our city government when it comes to legal issues. Recall how they jumped to revoke the ban on TIC’s in response to a mere trial court ruling in San Francisco, which did not set precedent and was entirely distinguishable from the comparable situation here in Berkeley.  

Peter Mutnick is a Berkeley resident. 

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