February 12, 2001

Hon. Ronald B. Robie
Superior Court of the State of California
County of Sacramento, Dept. 41
720 Ninth Street
Sacramento, CA 95814-1398

Dow Jones & Co., Inc. v. California Independent System Operator Corporation Board of Governors; Case No. 01 CS 00141

Dear Judge Robie:

This firm represents The Hearst Corporation, owner and publisher of the San Francisco Chronicle, and the California First Amendment Coalition, "an organization of journalists and citizens devoted to the principles of open government and freedom of expression." In that capacity we have been asked to submit the following amicus curiae letter brief in the above-captioned matter. The issues presently before the Court in the referenced proceeding are weighty from a legal perspective and critical from a public perspective. As such, we think they should be resolved most carefully, and with as much input as reasonably possible.

The California Independent System Operator ("ISO"), in opposition to the Petition filed by Dow Jones & Co., Inc., relies essentially on four separate arguments, two of which suggest that this Court ignore the substantive issues before it, and two of which argue for legal determinations which are contrary to, rather than supported by, both public policy and established precedent. When one considers the full panoply of governing legal authority, it becomes readily apparent that the Petition is well-grounded and should be granted. When one considers issues of policy as well, the decision simply becomes that much easier.

The ISO urges avoidance of the merits of the pending dispute on the ground that such merits were rendered moot by the opening of a portion of a meeting to the public. As a matter of law, the ISO is wrong; courts recognize that disputes which are capable of repetition yet evasive of review should be heard on the merits. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 1190 n.6 (1999) ("Nonetheless, as scores of other reviewing courts in this same posture have concluded, we determine that although the present case is technically moot, it presents an important question affecting the public interest that is ... ' " 'Capable of repetition, yet evading review.' " ' Press Enterprises Co. v. Superior Court, (1986) 478 U.S. 1, 6 [106 S.Ct. 2735, 2739, 92 L.Ed.2d 1]."). As a matter of policy, the ISO is likewise wrong; public access to public meetings has sufficient societal importance that its enforcement cannot depend upon members of the public reaching the courthouse and obtaining relief before a particular proceeding concludes.

The ISO implicitly concedes that its bylaws require its meetings to be held in public, but urges that only the Attorney General can enforce those by-laws and that the public lacks standing to to so. As petitioner establishes so clearly in its Reply in Support of Petition For Writ of Mandate Directed to the California Independent System Operator Corporation Board of Directors ("Petitioner's Reply"), under the law the ISO is wrong; the Attorney General is authorized to take steps to enforce such bylaws, but is not the only person with standing to do so.

From a policy perspective, the ISO is also wrong; the ISO was created by public officials, is overseen completely by a public body, and discharges obligations of substantial importance to all thirty-three million members of the body politic in the State of California. Those ISO by-laws, implicitly approved by a public body, grant each of those thirty-three million people a right of access to the meetings of the ISO Board of Governors. While the Attorney General has power to bring an action to remedy a violation of the Bagley-Keane Act, so too does every member of the body politic whose rights of access are denied in contravention of the law. Government Code § 11130. The standing requirement here should be, and is, the same.

The ISO urges that its meeting on February 1, 2001, was not a "meeting" and that in any event that the Bagley-Keane Act does not apply to it. The first portion of the argument -- that the meeting wasn't a meeting -- requires little response. The term "meeting" is defined by Webster's Ninth New Collegiate Dictionary as "an act or process of coming together" and as "an assembly for a common purpose . . . " New members of the new ISO Board "came together" in an "assembly for a common purpose . . . " As such, and under any practical definition, their meeting was a meeting.

California has substantial jurisprudence on the question of what constitutes a "meeting" under open meeting laws, and it includes every means of communication from formal proceedings to sequential telephone conversations between members of an agency's governing body. See, e.g., Government Code § 54952.2; Frazer v. Dixon Unified School District, 18 Cal.App.4th 781 (1993); Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal.App.2d 41 (1968). None of that jurisprudence supports the ISO's suggestion that a meeting is not a meeting unless formal action is being taken. The ISO "open meeting policy" uses the term "meeting" without further definition, and presumably in accordance with both legal, and practical, definitions. Consequently, the meeting of February 1, 2001, was a "meeting" within the ISO "open meeting policy."

At first blush, the argument that the Bagley-Keane Act does not apply to the ISO because the ISO is not a "state agency" appears to have some technical merit. However, when one examines California's jurisprudence on the intent and purpose of such open meeting laws as the Bagley-Keane Act, and when one considers carefully the structure of ISO and how it fits within the structure of government itself, one begins to see that Petitioner's argument regarding the application of the Bagley-Keane Act has substantial legal merit.

Moreover, Petitioner's argument has unquestioned policy support. As diverse as California is, in its geography, its population, its industries, and its languages, virtually all of its people in all of its regions rely on electricity, both in their jobs and in their homes. Virtually all of them are subject to rolling blackouts when there are energy shortages, and billions of their dollars are being spent to try to assure them a steady flow of electrical power. The ISO is at the center of the electricity generation and delivery industry. Its vital importance to thirty-three million people simply cannot be doubted. To suggest that meetings of governmental and quasi-governmental agencies which affect small segments of society must be open but that meetings of such a body affecting virtually all of California's residents may be secret simply makes no sense.

California, as a State, has a philosophical preference for openness in government. The aforementioned Bagley-Keane Act and the Ralph M. Brown Act assure public access to meetings of public bodies. The California Public Records Act, Government Code §§ 6250, et seq., guarantees public access to public writings. The judiciary guarantees public access to judicial proceedings and judicial files. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999). When one combines that unquestioned state policy with the unquestioned public importance of electrical generation and delivery, one cannot help but conclude that any doubts about public access to ISO board meetings should be resolved in favor of openness. Because the ISO Board is subject to, and to some extent performs the work of, the Electricity Oversight Board, an acknowledged state agency subject to the Bagley-Keane Act, the legislative intent behind the Bagley-Keane Act would seem to apply that Act to the ISO Board meetings.

It is hard not to note the exquisite irony that a governmentally-created and governmentally-controlled entity charged with the delivery of that which provides us light should try so hard to keep us in the dark. Its arguments toward that end do not withstand careful scrutiny, under either existing law or public policy, and should be rejected. The ISO Board meetings should be open, in accord with both its open meeting policy and the Bagley-Keane Act.

Very truly yours,

Neil L. Shapiro