Public BLAWG Blog

It's a fairly common occurrence for cities and counties: the general election for the legislative body may be cancelled for various reasons, but the local agency also wants to place a general tax measure on the ballot, and Article XIIIC, section 2(b) of the California Constitution requires that an election on a general tax must be "consolidated with a regularly scheduled general election for members of the legislative body." So, is a "regularly scheduled general election for members of the legislative body" a type of election, allowing an agency to place a general tax measure on the ballot even if no candidate will stand for election, or must a candidate actually appear on the same ballot with such a tax measure?

On May 6, 2013, the California Supreme Court issued the long awaited decision in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. et al., (S198638) upholding the ban by the City of Riverside ("City") on medical marijuana collectives, cooperatives and dispensaries ("dispensaries").  The Court held that the City's ban on medical marijuana dispensaries was not preempted by California law, as set forth in the Compassionate Use Act ("CUA") or the Medical Marijuana Program Act ("MMPA"), and thus the ban was valid.  Local regulation of dispensaries does not duplicate or contradict state law, nor does such regulation enter an area or field fully occupied by state law; consequently, local governments may choose to regulate or ban medical marijuana dispensaries.

AB 440 (Gatto) would allow cities, counties and housing authorities to compel cleanup of contaminated properties in their jurisdiction, similar authority to the Polanco Redevelopment Act.  The process would be akin to a nuisance action in that the public entity would give the responsible parties notice and an opportunity to clean up.  If the responsible parties do not respond or do not clean up the property after receiving notice, the public entity may prepare a cleanup plan for approval by an environmental regulatory agency, clean up the property (regardless of whether it owns the property) and sue for the entire cost of cleanup including attorneys’ fees and staff time. On April 16, 2013, AB 440 passed out of the Assembly Environmental and Toxics Committee with significant city support.  On May 1, 2013, the bill will be heard in the Local Government Committee. 

The Second District Court of Appeal, in Sabey v. City of Pomona (B239916), remanded a decision related to discipline of a police officer on the basis that his due process rights were violated  when one partner from a law firm represented the Police Department in the officer's arbitration matter, and a different partner from the same firm represented the city council in the officer's appeal of his termination.  Even though there was no evidence of bias, the court believed the risk of bias, when two partners from the same firm were involved in different levels of the contested hearing, "too high to be acceptable under constitutional principles."  As explained by the court, "[t]he rule we announce is simple.  Agencies are barred from using a partner in a law firm as an advocate in a contested matter and another partner from the same law firm as an advisor to the decision maker in the same matter."

Due process requires impartiality in administrative hearings, and prevents an attorney from performing dual roles in contested quasi-judicial hearings such as administrative, disciplinary or code enforcement hearings.  Based on that principle, agencies have used one attorney to represent the agency in an administrative hearing, while allowing another attorney to represent the board that reviews the  decision stemming from that hearing.  This approach was permissible as long as there existed "assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate."  (Howitt v. Superior Court (1992) 3 Cal.App.4^th 1575.)  "Ethical walls" were set up by law firms in order to comply with Howitt and to ensure an attorney did not communicate about the matter or access the files of the other attorney participating in the matter.

On April 16, 2013, in the case of Associated General Contractors of America, San Diego Chapter, Inc. v. California Department of Transportation et al. (No. 11-16228), the Ninth Circuit Court of Appeals affirmed a district court ruling upholding the constitutionality of the 2009 Caltrans Disadvantaged Business Enterprise (DBE) program that provides race and sex based preferences to African American-, Asian American-, Native American-, and women-owned firms on certain transportation contracts.  Plaintiffs, the Associated General Contractors of America, San Diego Chapter, Inc., challenged the program as an unconstitutional affirmative action program that fails to meet the constitutional standard of strict scrutiny.  The Ninth Circuit disagreed, finding that the program survives strict scrutiny by having a strong basis in evidence of discrimination within the California transportation contracting industry, and in being narrowly tailored to benefit only those groups that have actually suffered discrimination.

The generally accepted rule has been a public entity must comply with CEQA prior to adopting a resolution of necessity to condemn land needed for a public project.  Last Friday, a California Court of Appeal decision reviewing the California Environmental Quality Act (“CEQA”), Public Resources Code section 21168.9(a), upheld a trial court’s writ decision not to set aside an adopted resolution of necessity in its entirety when it found non-compliance with CEQA and instead allowed the eminent domain action to proceed before CEQA review was completed. 

In the decision Golden Gate Land Holdings, LLC v. East Bay Regional Park District (2013 Cal.App. LEXIS 283, April 12, 2013), the merits of the trial court’s ruling on CEQA project approval was not before the appellate court and its review of the District’s compliance with eminent domain law was not certified for publication.  The trial court held that the District had not complied with CEQA and that further CEQA review was required, but it did not vacate the District’s adopted Resolution of Necessity in its entirety.  Golden Gate’s limited argument on appeal was that the trial court erred in refusing to set aside the resolution of necessity because CEQA compliance after the approval of a resolution of necessity is unlawful. 

On April 9, 2013, the Superior Court for the County of Alameda, the Honorable Judge Frank Roesch presiding, issued a statement of decision in Planning and Conservation League et al., v. State of California and the California State Controller, Case No.

A California Court of Appeal recently affirmed the lower court's decision to deny the release of documents relating to academic research under the "catch-all" exemption of the California Public Records Act ("CPRA").  SeeHumane Society of the United States v. Superior Court of Yolo County (Regents of the University of California), filed March 27, 2013, C067081.  Under the "catch-all" exemption, a court balances whether the public interest is better served by releasing or withholding the documents.  Here, the court relied almost exclusively on the balancing test as the basis for withholding the documents, which is uncommon in court decisions analyzing the CPRA.

In this case, the Humane Society of the United States ("HSUS") sued to obtain records from the University of California Regents ("Regents") relating to research leading to a published study by the University's Agricultural Issues Center.  The Regents objected to releasing the records, claiming they consisted of preliminary data, prepublication thoughts, conversations and informal exchanges of ideas among researchers.  The Regents argued that the public interest would be better served by allowing researchers to engage in informal discussions and brainstorming.

With increasing frequency in the last several years, school districts around the state have been relatively successful in obtaining voter approval of parcel taxes.  The First District Court of Appeal's recent decision in Borikas v. Alameda Unified School District (2013) 214 Cal.App.4th 135 is significant because absent legislative action it will constrain the ability of school districts, special districts, and counties-but not cities-to get parcels taxes approved by the voters.

Borikas involved a parcel tax imposed by the Alameda Unified School District.  The tax, which received the requisite two-thirds voter approval, was levied on property at differential rates: residential parcels and commercial parcels of less than 2000 square feet paid $120 per year and commercial parcels of greater than 2000 square feet paid $0.15 per square foot per year, capped at $9500.  The plaintiff commercial property owner argued that the District's tax measure violated Government Code section 50079's requirement that school district special taxes "apply uniformly to all taxpayers or all real property."  The Court of Appeal agreed with the plaintiff and held that Government Code section 50079 does not authorize school districts to impose special taxes that differentially tax property within the district.

On March 26, 2013, the Ninth Circuit affirmed a district court ruling upholding the constitutionality of the City of Lancaster's policy and practice of allowing local congregations of any denomination to give an invocation at the beginning of City Council meetings.  Plaintiffs challenged the policy and practice as a violation of the Establishment Clause of the U.S. Constitution and the California Constitution because the invocations used sectarian references and because a majority of invocations were given by Christian denominations, which they contended had the effect of promoting one religious sect over others.  The Ninth Circuit disagreed, finding that neither the City's policy nor practice promoted any particular religion in violation of the Establishment Clause or the California Constitution (which employs the same language and standards as the Establishment Clause).