Public BLAWG Blog

An initiative measure to suspend AB 32, California’s landmark law to curb greenhouse gas emissions to 1990 levels by 2020, has been cleared to gather signatures. The measure would require a state unemployment rate of equal to or less than 5.5% for one full year before the government could pursue AB 32 greenhouse gas measures. Since the State unemployment rate is currently 12.1%, if the initiative were approved it would result in an immediate suspension of AB 32.

Supporters of the measure call it the “California Jobs Initiative” and state that it is an attempt to force regulators to suspend AB 32 policy-making and enforcement until the economy rebounds significantly. Assemblyman and Republican Dan Logue created the initiative and states that he has sufficient financial commitments from business interests for a campaign to qualify the measure for the ballot.

Supporters of AB 32, including Governor Schwarzenegger, maintain that AB 32 and similar laws stimulate the green economy and California jobs. If the measure is passed, they explain that it will stall the number of green jobs in the state. According to the San Diego news, among those defending AB 32 are biotech and green energy firms such as TechNet, a national network of recognizable technology companies in the 21st-century market, from Apple to Yahoo.

Attorney General Jerry Brown, who has the authority to clarify ballot measures with precise titles, has named the initiative “Suspends Air Pollution Control Laws Requiring Major Polluters to Report and Reduce Greenhouse Gas Emissions That Cause Global Warming Until Unemployment Drops Below Specified Level for Full Year.”

According Sacramento's Capital News, supporters of the initiative must collect 433,971 voter signatures by June 24 for the measure to be added to the ballot.

The proponents of “The Regulate, Control and Tax Cannabis Act of 2010,” which would legalize marijuana for personal use by individuals 21 years of age or older, reportedly submitted over 700,000 signatures to the Secretary of State on January 28, 2010, in an effort to qualify the measure for the November 2010 ballot. The Secretary of State has eight business days to perform a raw signature count, and then has up to 60 days to determine whether the Initiative has the 433,971 valid signatures necessary to be placed on the November ballot. Read more here.

The First District Court of Appeal ruled that the California Department of Forestry (CDF) improperly approved an exemption for harvesting less than three acres of timber where previous timber harvesting plans included mitigation measures prohibiting tree-cutting in the proposed area. Even though the previous approvals had expired, the court in Katzeff v. California Department of Forestry and Fire Protection, filed January 28, 2010, concluded that the adopted mitigation measures could not be deleted without determining the continuing need for the mitigation. Read more here.

The Second Circuit Court of Appeals has overturned a district court ruling and rejected an as-applied vagueness challenge to a Town of Berlin ordinance --- and in so doing, has presented an excellent discussion of the vagueness doctrine and its application to the construction of the term "substantial". Read more about the case, VIP of Berlin, LLC v. Town of Berlin, and the decision here.

Will 2010 be the "Year of Living Green?" Including the year that California voters pass an initiative to legalize marijuana for personal use?

Yesterday, the backers of the "Regulate, Control and Tax Cannabis Act of 2010"--- which would legalize possession of small amounts of marijuana for adults, allow limited growing on private property, and permit local governments to decide whether to legalize and tax pot sales --- stated they would submit more signatures than required to qualify the measure for the November 2010 ballot.

Coincidently, in a ribbon-cutting ceremony attended by several members of the City Council, a 15,000 square foot warehouse-type store stocked with marijuana growing supplies opened in Oakland, California. "IGROW" does not sell marijuana, but has everything else an experienced or novice medical marijuana grower would need and more, including "Bud Candy," "Grow Big," "Bud Ignitor." The only catch is that you must have a "pot card" to validate you as a medical patient. Under current state law, Californians can legally grow and possess pot for medical purposes.

Broader legalization of marijuana use got a boost in April when a Field Poll found that 56 percent of California voters supported legalizing and taxing marijuana to help bridge the state budget deficit. The measure is not without some controversy, though. Law enforcement associations and religious groups oppose it, arguing marijuana is harmful and immoral.

Last summer, voters passed a measure in Oakland to pass and regulate businesses like IGROW, and the City is hoping for a big return in tax dollars. After November, IGROW may just have to become a chain.

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags. The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA. Read more here.

In an opinion filed on January 22, 2010, the California Court of Appeal, Second Appellate District, confirmed that law enforcement officers are immune under state law from liability for damages caused to property seized as part of a criminal investigation. In the case, County of Los Angeles v. Superior Court, B214842, investigators employed by the Los Angeles County District Attorney's Office seized several items from the plaintiffs, but no charges were ever filed. The plaintiffs sued the investigators under California Civil Code section 52.1, alleging a violation of their civil rights against unreasonable search and seizure. In reaching its conclusion, the Court recognized that the prosecutorial immunity under Government Code sections 821.6 and 815.2 protects law enforcement officers from liability where a plaintiff's damages are caused by acts committed by officers in the scope of investigation, even if the damages occurred after the investigation and the officers acted maliciously and without probable cause, so long as the acts were causally connected to the investigation.

Although California courts have long recognized prosecutorial immunity, this decision is important because the Court held for the first time that the immunity applies to cases brought pursuant to California Civil Code section 52.1, which was enacted as part of California's comprehensive hate crime legislation. However, law enforcement agencies should understand that prosecutorial immunity does not apply to civil rights allegations made under federal law, and officers must look to the qualified immunity doctrine in such cases.

Click here to read the full opinion.

An article published by the Police Officers' Research Association of California (PORAC) warns police officers that their interactions on social networking sites can lead to discipline, up to and including termination, if those interactions are in violation of their department's policies. Also this month, Lexipol has announced that it willbe preparing and sending out to its subscribers a policy on police officer use of Facebook.

The authors of the PORAC article cite numerous examples of uses of social networking that could lead to such discipline. For example, an officer who posts photos of herself aiming her gun at the camer or posing with her gun may violate her department's policy against gun glorification, they say. Or, an officer who posts photos of himself drinking alcohol or posts comments that reflect poorly on his department may be disciplined under the umbrella of "conduct unbecoming."

First Amendment protections may apply to officers who do not identify themselves as officers on social networking sites, but this is a "gray area", the article goes on to say. Presumably this is because individuals posting on social networking sites can never be certain that their anonymity will be maintained.

The bottom line? Don't post anything you wouldn't want your department to see, the authors say.

On January 21, 2010, the California Supreme Court issued its ruling in People v. Kelly (S164830), which essentially eliminates the limitations on the quantity of medical marijuana that a qualified patient or primary caregiver may legally possess or cultivate. Read more here.

For public employers, City of Ontario v. Quon raises issues regarding a public employee's right to privacy in electronic communications sent on a city's equipment . The Supreme Court's decision to hear the case follows the Ninth Circuit's ruling that a c ity's review of text messages sent and received by an employee on his city-issued pager violated the employee's Fourth Amendment right to privacy .

City of Ontario police sergeant Jeff Quon used his city-issued pager to send and receive hundreds of personal text messages . He incurred overage charges on the city's wireless plan that prompted the city to audit his text messages to determine if they were related to city business . Quon argued before the Ninth Circuit that his department's informal practice of allow ing officers to exceed their character limits if they paid overage charges nullified the city's written policy that employees had no expectation of privacy in communications sent on city-issued equipment .

The City of Ontario subsequently appealed the case to the Supreme Court, and the League of California Cities (LOCC) issued a brief in support of the appeal, as described on the LOCC Web site.

It is anticipated that the Supreme Court will issue its ruling by the end of June.

The LOCC brief was authored by Meyers Nave attorneys Nancy Thorington and Joseph Quinn. Read Meyers Nave's press release here.