Will Newsom's Nicety Bill Curb Disruptive Behavior During Public Hearings?

• Published date: 02 November 2022
• Subject Matter: Real Estate and Construction, Real Estate
• Law Firm: Sheppard Mullin Richter & Hampton
• Author: Ms Sarah Atsbaha

The zeitgeist of pandemic-era American politics has been ugly. Really ugly. In an environment where civil disobedience skews uncivil, how do we balance the quintessentially American freedom of speech with the public participation requirements in the Ralph M. Brown Act ("Brown Act.")? Senate Bill 1100 provides some guidance.

Effective January 1, 2023, SB 1100 clearly authorizes a legislative body (such as a city council or county board of supervisors) to remove disruptive individuals from meetings that, by law, must be made open to the public. The individual must first be given a warning that the disruptive conduct may result in removal from the meeting.¹ If the behavior continues, the individual may then be removed. The bill defines "disruptive" conduct to include behavior that is "disturbing, disrupting, impeding" or behavior that "renders infeasible the orderly conduct of the meeting," such as use of force, or actual threats of force.² This a substantial deviation from historic treatment of the public's right to participate, which - until recently - legislative bodies have treated as sacrosanct.

Enacted in 1953, the Brown Act was designed to regain public trust in local government decision-making by guaranteeing that the public retained the right to remain informed and to participate in meetings regarding "the people's business."³ In this spirit of transparency and open public discourse, the Brown Act specifically forbids any legislative body from prohibiting "public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body."⁴ Although the legislative body has express rights to limit speaking times and to create laws governing conduct in their meetings, there were few clearly-articulated limits on the public's freedom of expression. In theory, this broad protection for public speech is a good thing. In practice, this means that some state and local officials avoid...