Public BLAWG Blog

Fifth District Court of Appeal Holds That Privileged Documents Shared Between Applicants and Agencies During The CEQA Administrative Process Are Not Protected From Disclosure and Inclusion In The Administrative Record

July 10, 2013, by Edward Grutzmacher, Amrit S. Kulkarni

In an opinion with potentially significant consequences for the preparation of EIRs and other environmental review documents under CEQA, the Fifth District Court of Appeal (Fresno) has ruled in Citizens for Ceres v. City of Ceres that any attorney-client privilege or work product protection which initially attaches to a document is waived if that document is shared, prior to project approval, between a project applicant and the agency conducting CEQA review.  This would mean that otherwise privileged documents that concern the project at issue or compliance with CEQA generally, if shared among applicant and agency prior to project approval, are subject to disclosure and must be included in the administrative record which the court reviews in CEQA litigation.     

CEQA generally requires that any document in the lead agency's files that is relevant to the proposed project or compliance with CEQA must be included in the administrative record.  In the past, however, some agencies had relied on the so-called "common interest" doctrine of non-waiver of privilege to exclude from the record otherwise relevant documents prepared by or for attorneys for either the applicant or the agency, even if those documents had been communicated between the applicant and the agency considering the project. 

California Supreme Court Orders Disclosure by Public Agencies of Employee Home Addresses and Telephone Numbers to Representative Labor Unions

May 31, 2013, by Arthur A. Hartinger

County of Los Angeles v. Los Angeles Employee Relations Commission;
Service Employees International Union, Local 721, Real Party in Interest
Supreme Court No. S191944 (May 30, 2013)

In a unanimous decision authored by Justice Corrigan, the California Supreme Court ruled that Los Angeles County must disclose home phone numbers, and home addresses, of employees who are not union members.  The Court rejected the court of appeal’s imposition of an opt out procedure designed to give non-members an avenue to object and elect not to have their personal information disclosed.

Pomona Considers Use of Eminent Domain As Life Vest For Underwater Mortgages

May 23, 2013, by Meyers Nave

Mortgage Resolution Partners’ one year agreement (with automatic renewals) to provide the City of Pomona with identifying and obtaining proposals from institutions that can lend funds to the city for restricting/refinancing programs; providing legal counsel and research to assess and implement assistance and mortgage acquisition programs; and creating criteria to be used in identifying mortgages that might benefit from relief programs was approved by the City Council  earlier this month.

Appellate Court Clarifies Meaning of "Regularly Scheduled Election" for Placement of General Tax Measures under Proposition 218

May 17, 2013, by Sky Woodruff

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?

California Supreme Court Holds Local Governments May Ban Medical Marijuana Dispensaries

May 8, 2013, by Ruthann G. Ziegler

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.

State Bill Equivalent of Polanco Act Clears Legislative Hurdle

April 25, 2013, by Meyers Nave

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. 

Appellate Court Holds that Due Process Prevents Partners From the Same Law Firm From Serving as Adviser and Advocate on Contested Hearings

April 22, 2013, by Arthur A. Hartinger, Steven T. Mattas, Ruthann G. Ziegler

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.4th 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.

Caltrans’ Disadvantaged Business Enterprise (DBE) Program Upheld As Constitutional…For Now

April 17, 2013, by Eric S. Casher

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.

Resolution of Necessity Maintained Even When Further CEQA Review Required

April 16, 2013, by Meyers Nave

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. 

Superior Court Finds CEQA's Fast-Track Provisions Unconstitutional

April 15, 2013, by Edward Grutzmacher, Amrit S. Kulkarni

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.

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