November 7, 2006 > An alarming decision
An alarming decision
by Steve Warga
When the Fremont City Council privately considered whether or not to change Police Department protocol for responding to residential burglar alarms, they violated the state’s open meeting law, known as the Brown Act or so said J. Dennis Wolf in his lawsuit. A Superior Court Judge granted the city’s pre-trial argument that what they did was not a violation of law and that was that…until now. Thanks to an Appellate Court decision of October 31 overturning the trial judge, Wolf will get his day in court and the city has already admitted the facts of his argument. This appellate decision may well be triggering alarms of a different sort in City Hall.
After private deliberations, council approved a new “Alarm Response Policy” on March 8, 2005. Activist-citizen Wolf filed a complaint which council rejected. Wolf followed with a lawsuit that appeared dead-on-arrival when Judge James Richman granted the city’s demurrer (a legal way of saying, “We did what he says we did and it wasn’t illegal.”). Wolf persisted with an appeal heard last month by a panel of three justices in California’s First Appellate District. In a unanimous decision, the panel overturned Judge Richman’s grant of demurrer.
So, Wolf’s suit will be heard again in trial court. He’s in a much stronger position now, thanks to the appellate decision. As stated in a footnote on p. 2, “On review of a granted demurrer, we are required to accept the truth of the plaintiff’s allegations.” Language like this bodes well for Wolf’s desire to have the alarm policy decision voided. He seeks a fully noticed public hearing on this matter, as California law requires.
Should Wolf prevail at trial, both the city and individual council members may find some pretty serious consequences lurking in the background. For one thing, violating the Brown Act is a misdemeanor crime and the district attorney may file charges at his discretion. Then there is the matter of fitness for office, given such demonstrably poor judgment in the conduct of public affairs.
Beyond this, the entire question of the alarm policy’s legality remains open. Residential alarms must be registered with the city and the city collects permit fees. Might not those citizens have a right to expect a reasonable police response when that permitted alarm goes off? If the trial court finds in favor of Wolf and voids the “no response” policy, residents who may have suffered losses might find grounds to sue the city, including for punitive damages.