Public BLAWG Blog

The Pitchess procedure allows for the discovery of confidential personnel records of peace officers in specific circumstances.  These records can be disclosed only where they are material to the subject matter of pending litigation, and only after an in camera inspection of the records by a court prior to disclosure.  Typically, Pitchess motions – which are usually made by criminal defendants – occur in the courts.  Under existing case law, Pitchess discovery cannot be used in certain administrative hearings, particularly where the records are not relevant to the issues in the hearing.  Many assumed that Pitchess discovery could not be used in any administrative proceeding.

Public entities, businesses, and anyone else regulated by the State and Regional Water Boards have something new to cheer about: ex parte communications are now allowed in specified adjudicatory proceedings.  Governor Brown recently signed SB 965 into law, which allows interested persons to communicate with members of the water board while one of the following actions is pending: adoption, modification, or rescission of (1) state waste discharge requirements and federal NPDES permits, (2) conditional waivers of waste discharge requirements, and (3) conditions of water quality certifications.  However, the boards can choose to block further ex parte communications beginning 14 days before the proceeding occurs. Existing law prohibited all such communications at any time while an adjudication was pending before the boards.

There is one big catch, however. 

California cities are often faced with claims arising from automobile, motorcycle, bicycle, and pedestrian accidents.  Many times, these claims focus on supposed faults in lighting, signals, signs, crosswalks or road grades.  The recent California Court of Appeal decision of Mixon v. Pacific Gas & Electric Company rejected exactly these sorts of claims.  The court explained that simply because, in hindsight, a roadway or intersection could possibly be made even safer does not mean that it constitutes a dangerous condition.  The opinion provides useful guidance to cities and reaffirms that minor risks of injury or conditions of the roadway that do not actually contribute to an accident are not dangerous conditions of public property. 

Environmental groups may have developed a way to repurpose a legal theory traditionally implemented to protect water resources, the “public trust doctrine,” to push forward legal measures to combat climate change and reduce greenhouse gas emissions. 

The last minute scramble for a CEQA reform bill has ended for this legislative session.  Senate President Pro Tem Steinberg said the Senate would not take up the bill before the current session ends next week.  The bill’s author Senator Rubio acquiesced.  However, the proposed reform is deferred, not dead.  The bill will be made public and is expected to be formally introduced in the next legislative session.  There is a coalescing of interests to support significantly amending CEQA to prevent what are seen as obstacles to development through delays and litigation.  So, although the mad dash for immediate passage has abated, this issue will be prominently debated in the future.  It appears a big legislative battle is looming on the future of CEQA.  It is a long-standing issue whose time may have finally come.

A business and labor coalition group is proposing a new law to significantly reform CEQA before the current State Legislative session ends next week.  The terms of the bill are expected to be made part of SB 317 (an unrelated bill) through what is called a “gut and amend” process.  Although the proposed law may be further amended, the draft focuses on the following: (1) limiting analysis of environmental impacts in CEQA documents to compliance with State and Federal environmental regulations; (2) limiting mitigation measures to requirements under existing law; and (3) prohibiting certain types of legal challenges to CEQA environmental documents.  Overall, the bill would significantly narrow the scope of environmental impacts analyzed  and the mitigation measures available to address impacts.  The proposal also would restrict the types of legal challenges that can be made to CEQA documents.  An initial draft of the proposal has been posted online. 

Some newspaper editorials have criticized the proposal as an end of the session rush job and have urged the Legislature to follow a procedure that would allow more review and debate.  Last year, the Legislature passed some CEQA reform bills formulated at the very end of the session relating to new exemptions and the Los Angeles football stadium proposal.  We will see what happens this year.

REAOC vs. County of Orange, SACV-01-1301 AG

On Tuesday, August 14, 2012, the United States District Court granted summary judgment on behalf of Orange County in longstanding litigation stemming from the County’s decision to “de-pool” retiree and active health care rates.

A California Court of Appeal just upheld a 2010 City of Santa Cruz ordinance which calls for annual inspections of all residential rental properties within City limits.  (See, Harold Griffith v. City of Santa Cruz, July 16, 2012, 12 C.D.O.S. 8036.)  Under the ordinance, residential rental units that are not owner-occupied are subject to an annual inspection by City staff; annual registration and annual fee per unit.  (SCMC, section 21.06.010 et seq.)   Griffith filed a writ of mandate seeking to invalidate the ordinance on numerous grounds including:  that it was preempted by the State Housing Law and violated the 4^thAmendment Right to Privacy; Equal Protection and,  Proposition 218  - because the “fee” was really a “tax” that had not been voted on by the property owners.

What is intangible harm to the environment worth?  That is the question that will now be asked of juries as a result of the Ninth Circuit Court of Appeals’ recent opinion in United States v. CB&I Constructors, Inc.. 

In CB&I Constructors, a jury awarded $28.8 million for damages caused by the Copper Fire of 2002, which burned roughly 18,000 acres of forest and destroyed nearly all of the vegetation, harmed wildlife, and impacted scenic views and recreational use.  At trial, the United States’ expert witnesses testified about the intangible harm to the environment, but did not quantify the harm.  The defendant appealed the jury award as grossly excessive, arguing that intangible noneconomic damages are not compensable in tort suits alleging harm to property.  In upholding the award, the Court explained that “California embraces broad theories of tort liability that enable plaintiffs to recover full compensation for all the harms that they suffer.  Under California law, the government may recover intangible environmental damages because anything less would not compensate the public for all of the harm caused by the fire.”

Intangible environmental harm is not easily calculated.  Therefore, a jury’s subjective evaluation of the damages will continue to drive the dollars behind what’s reasonable compensation for the harm. 

The State Water Board has released two new drafts of general storm water NPDES permits this summer.  

The new draft General Permit for the Discharge of Storm Water Associated with Industrial Activities is a substantial change from the draft released in January 2011.  It has notably removed numeric effluent limitations, largely due to the difficulty of developing technology-based limits for all industrial sectors, but still includes numeric action levels.  In addition, it implements new cost-saving measures for sampling and monitoring. Public comment will be accepted on the draft permit until noon on September 21, 2012, and the State Water Board will hold a public hearing on October 17, 2012 in Sacramento.  

The State Water Board also issued a new draft of its Phase II General Permit for Small Municipal Separate Storm Sewer Systems (MS4s).  Although the deadline for written comments has now passed, the public can still attend a public hearing on August 8, 2012 in Sacramento and provide oral comment.