Municipal Law

BREAKING NEWS: California Supreme Court Upholds Inclusionary Housing Ordinance

Attorney Authors: 

The California Supreme Court just released its long-awaited decision on CBIA’s challenge to the City of San Jose inclusionary housing ordinance.  A big win for the City.  Hinting at the outcome, the opinion begins with language from the Health and Safety Code citing to the serious housing shortage in California.  The court concludes the inclusionary requirements are not an impermissible exaction on housing developers.  Watch for our e-alert with more discussion and analysis of the decision, California Building Industry Association v. City of San Jose, S212072, June 15, 2015.

California Supreme Court to Rule on Inclusionary Housing

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On April 8, 2015, the California Supreme Court heard oral argument on the California Building Industry Association challenge to San Jose’s inclusionary housing ordinance.   The ordinance required residential developments proposing 20 units or more to set aside 15% as below market units.  Alternate compliance methods were also allowed, such as dedications of land or in-lieu fees.  These requirements are pretty typical of many local inclusionary ordinances.  The trial court upheld the challenge, but the appellate court reversed and found for the City.  At the appellate level, the CBIA claimed that the inclusionary ordinance imposes an exaction on the developer, while the City claimed the ordinance was permissible as a land use regulation under its police power, needing only a reasonable relation to the public welfare. 

Public Agencies Not Required to Disclose Attorney Billing Invoices Under CPRA; Attorney-Client Privilege Applies to Entire Invoice

The California Court of Appeal recently held that billing invoices sent by an attorney to a public agency client are protected by the attorney-client privilege and are not required to be disclosed by the  public agency, even in redacted form, under the California Public Records Act ("CPRA," Government Code §§ 6250

California Supreme Court Clarifies That Pitchess Procedure May Be Used In Administrative Officer Discipline Proceedings

The well-established Pitchess motion procedure, codified in sections 1040-1047 of the Evidence Code, governs the manner in which peace officer personnel records may be produced to others.  Peace officer personnel records are subject to strong confidentiality protections, but are sometimes relevant to issues in criminal and civil court proceedings.  Those same records can also have relevance in peace officer discipline proceedings, but those proceedings are administrative and do not occur in the courts.

Don’t Forget Your Reusable Bags!

On September 30, 2014, Governor Brown signed into law a bill making California the first state in the nation to ban single-use plastic bags.  Consumers may either use their own reusable bags or pay at least ten cents for a paper bag or a multi-use plastic carrier that meets a set of state durability standards.  More than 100 California cities and counties have already passed regulations banning plastic bags.  (See list.)  These existing regulations may still be enforced, but the law preempts municipalities from adopting new regulations of single-use plastic bags, meaning those adopted on or after September 1, 2014, and restricts amendments to existing regulations.  Grocery stores, big bulk retail stores that sell groceries and pharmacies statewide must phase out the use of plastic bags by July 1, 2015.  The ban will expand to cover convenience stories and liquor stores one year later, on July 1, 2016.  

Ninth Circuit Upholds Reasonable Restrictions on Solicitation of Funds at LAX

Last week, the Ninth Circuit decided the final piece of a decades-old solicitation case, International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, 2014 WL 4086794. The religious society, referred to as "ISKCON" by the Court, had challenged, under both the First Amendment and the California Constitution, the Los Angeles airport's ban on the continuous or repetitive requests for the immediate receipt of funds in the airport terminals, parking lots, and on the sidewalks adjacent to both areas. The Ninth Circuit affirmed the lower court's ruling that the ordinance in question was a reasonable, viewpoint-neutral restriction on expressive activity at LAX under the First Amendment. Key to the Court's finding was the fact that the parties agreed that the forum at issue was a nonpublic forum. ISKCON likely did not challenge the classification of the forum given the Supreme Court's decision in International Society for Krishna Consciousness v. Lee (1992) 505 U.S. 672, in which the Court found that airport terminal buildings were a nonpublic forum.  

Fifth Appellate District Affirms Preliminary Injunctions Prohibiting Internet “Sweepstakes” Café Operations

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Businesses that sell computer “time” in exchange for entries into on-line sweepstakes games likely violate California’s antigambling laws, the Fifth District Court of Appeal held last week.  In People v. Grewal (CON F065450/F065451/F065689), the Court upheld three preliminary injunctions that prohibit “sweepstakes” operations at Internet café businesses in Kern County.  The injunctions were previously granted to the Kern County District Attorney against specific businesses. Read the full opinion here.

A School Employee and a School District May Be Sued For Showing A Report of Alleged Child Abuse to the Father

In a decision published November 18, 2013, the California Court of Appeal, Fourth District, reversed the trial court’s determination that a school counselor and school district was immune from suit when a school counselor provided a copy of a report of suspected child abuse to the father.  The Court held that under the Child Abuse and Neglect Reporting Act (CANRA) a mandated reporter must keep the report of known or suspected child abuse confidential and  may only disclose the information to specific agencies and individuals identified in the statute – the parent of the child is not included.

Third Time Is The Charm: CalPERS May Appeal City Of San Bernardino’s Bankruptcy Eligibility To Ninth Circuit

A federal judge has ruled that CalPERS may appeal to the Ninth Circuit a bankruptcy judge’s decision allowing the City of San Bernardino’s petition for Chapter 9 bankruptcy.  As we previously reported here, U.S. Bankruptcy Judge Meredith Jury ruled in August that San Bernardino is eligible for Chapter 9 bankruptcy protection.

Court of Appeal Issues Narrow Opinion on Subvention for Municipal Stormwater Permit Requirements

The California Court of Appeal recently issued the first published decision that adjudicates a municipal stormwater test claim on the merits.  In State Department of Finance et al. v. Commission on State Mandates, the Court of Appeal held that municipal stormwater requirements in a Los Angeles County National Pollutant Discharge Elimination System ("NPDES") permit to install trash receptacles at transit stops and to conduct inspections of commercial, industrial, and construction sites are not unfunded state mandates as a matter of law.  The Los Angeles County permittees, therefore, are not entitled to reimbursement for implementing these specific requirements under the California Constitution, article XIII B, section 6.   The Court of Appeal largely relied on the "highly flexible" "maximum extent practicable" standard of the Clean Water Act in ruling that these requirements are federal mandates, but limited its ruling to the specific mandates at issue.  As a result, public agencies that own and operate municipal separate storm sewer systems in California may still seek subvention for other NPDES permits with requirements that exceed the "maximum extent practicable" standard.

Please click here for more information on this case.

Governor Brown Signs AB 440

Does your city have a contaminated, boarded-up, abandoned, graffiti- and trash-encrusted property sitting in the middle of what was a vibrant and busy area? In the good old days (pre-2012, that is), redevelopment agencies could compel cleanup of contaminated properties in redevelopment project areas using the Polanco Redevelopment Act. Akin to a nuisance action, the redevelopment agency would give notice to the responsible parties, usually the owner of the property or the operator of the former business, to clean up the property. If the responsible party failed to comply, the redevelopment agency could conduct the cleanup and recover its full costs, including attorneys' fees and cost of staff time. But what can be done now that redevelopment agencies no longer exist? 

Legislation Explicitly Recognizes that Public Entities Are Not Liable for Dog Bites Occurring in Dog Parks

Governor Brown signed today Assembly Bill 265, amending the Government Claims Act to provide clear and unambiguous immunity for public agencies owning or operating dog parks.

It’s on the Name Tag: Name and Rank of Peace Officers in Investigative Report Not Confidential

On July 23, 2013, the First District of the California Court of Appeal held that police officer identities and ranks in investigative reports unrelated to discipline or personnel actions are discoverable under the Public Records Act. 

In Federated University Police Officers Association v. Superior Court, several news outlets sought to discover an investigative report authored by a consultant to the University of California regarding the use of pepper spray by campus police during student protests at UC Davis in 2011.  14 officers were ordered by their chief to participate in interviews for the report, and were advised that information provided to the consultant would not be used in any disciplinary proceeding.  No officers who were the target of citizen complaints or internal affairs investigations were interviewed.  The report did not recommend discipline of any officer, and was directed at UC Davis administration-level decision-making.  A related task force report concluded that several officers performed improperly, but did not recommend discipline.  These reports were ultimately released to the news outlets with name and rank of involved officers redacted.

Supreme Court Clarifies Distinction Between GIS Data And Software Under The Public Records Act

Attorney Authors: 

In Sierra Club v. The Superior Court of Orange County, the California Supreme Court ruled last week that data in a geographic information system (“GIS”) file format is a public record subject to disclosure under the California Public Records Act (“CPRA”, Government Code section 6250 et seq.).  The Supreme Court explained that, although GIS mapping software falls within the CPRA statutory exclusion of “computer software” generally, the ordinary meaning of “computer software,” does not include data that is stored in computers and formatted in such a way to be used with particular software.  If data in a GIS file format is statutorily exempt from CPRA disclosure, then any information stored on a computer in a specific format to be manipulated by software would arguably be exempt as well, and that is not what the Legislature intended.

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

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. 

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

Attorney Authors: 

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

Attorney Authors: 

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.

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

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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

Attorney Authors: 

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.

Superior Court Finds CEQA's Fast-Track Provisions Unconstitutional

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.

Appellate Court Explains "Balancing Test" Under California Public Records Act

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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.

Court of Appeal Makes It More Difficult for Local Agencies Other than Cities to Obtain Voter Approval of Parcel Taxes

Attorney Authors: 

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.

Neutral Government Policy for Privately Led Prayers at City Council Meetings Does Not Violate the Establishment Clause of the First Amendment or the California Constitution

Attorney Authors: 

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). 

What is the Difference Between a City Council Meeting and a Public Park?

Attorney Authors: 

On February 25, 2013, the Ninth Circuit Court of Appeals agreed to rehear a case in which it had found a Costa Mesa ordinance governing rules of decorum at city council meetings to be unconstitutionally overbroad because the ordinance prohibited insolent behavior by someone attending the meeting even if such behavior did not cause a disruption of the meeting.  (Acosta v. City of Costa Mesa (2012) 694 Fl.3d 960.) 

Superior Court Rules CPRA Requires Disclosure of Private Emails and Text Messages

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A Santa Clara County Superior Court judge ruled this week that the California Public Records Act (“the Act”) requires City officials to turn over private emails and texts messages related to City business.

Potential Signature Gatherers Challenge Elections Code Prohibition

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A 9th Circuit panel has found that the Libertarian Party of Los Angeles County and two signature gatherers had standing to challenge the Elections Code requirement that signature gatherers must be voters in the political subdivision as the candidate.  Libertarian Party v. Bowen (March 6, 2013)

Second Appellate District Rules that Charge for “Single-Use” Bags is not a Tax, Does Not Require Voter Approval

Attorney Authors: 

In a decision addressing changes to the California Constitution approved by Proposition 26 (2010), the Second District Court of Appeal ruled on February 21, 2013 that a 10-cent per bag charge for recyclable paper bags, as part of a comprehensive plan to limit the use of “single-use” or “disposable” bags, is not a tax that requires voter approval.

Under the definition added by Proposition 26, a local tax requiring voter approval means “any levy, charge, or exaction of any kind imposed by a local government,” subject to seven exceptions.

State Supreme Court to Consider Whether Ballot Initiative Process Can Bypass CEQA

Attorney Authors: 

The California Supreme Court has unanimously decided to accept review of Tuolumne Jobs & Small Business Alliance v. Superior Court. The plaintiff alleges that the City of Sonora violated CEQA when it adopted a voter-sponsored initiative as an ordinance to approve expansion of a Wal-Mart into a 24-hour "supercenter" without submitting the measure to a popular vote and without completing environmental review. 

Local Governments May Regulate Cultivation of Marijuana

Attorney Authors: 

On February 6, 2013, in Browne v. County of Tehema (C068800) the Third District Court of Appeal upheld the County of Tehema’s ordinance ("Ordinance") regulating the cultivation of medical marijuana, finding that the Ordinance does not conflict with either the Compassionate Use Act ("CUA") or the Medical Marijuana Program Act ("MMPA").

Fig Leaves Required - Nudists Banned in San Francisco

A lawsuit filed by a nudist group challenging an ordinance that bans exposing genitals was dismissed today by a Federal judge who said requiring people to wear at least some clothing does not violate the First Amendment or Free Speech.  U.S. District Judge Edward Chen wrote ”Nudity is not inherently expressive.”  Violations of the ban are punishable by fines up to $100.  Chen noted that the U.S.

Peace Officer and Firefighter Witness Fees Increased to $275

Attorney Authors: 

Beginning this year, it should be easier for public agencies to recover costs incurred in complying with subpoenas.  Effective January 1st, AB 2612 increased the subpoena deposit amount from $150 to $275 per day for peace officers and firefighters, as well as for state, trial court, and county employees.   Although a public agency is legally entitled to recoup the full costs incurred in making employees available in response to subpoenas, sometimes the agency cannot collect the balance of the costs without expending significant staff time.  The deposit amount had not been increased since 1986. 

AB 2612 amends Government Code section 68097.2 .  You can see the final version of the bill here.

Attorney Billing Records For Pending Litigation Are Generally Not Exempt From Disclosure

The California Public Records Act (CPRA) contains an exemption from disclosure for records pertaining to pending litigation.  This exemption has been construed narrowly, so that it applies only to documents prepared for use in litigation.  Other records that relate to a pending case, even if they are created only as a result of a pending case, are subject to disclosure unless another exemption applies.

The scope of the CPRA’s pending litigation exemption was clarified in the recent case of County of Los Angeles v. Superior Court of Los Angeles CountyThe County of Los Angeles claimed that all invoices, time records, and records of payment to law firms in a case currently in litigation were exempt from disclosure under the pending litigation exemption.  The Court of Appeal rejected this claim and clarified that attorney billing records pertaining to ongoing litigation are not protected by the pending litigation exemption.

Just Because It Could Be Safer Doesn’t Mean It’s Dangerous

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. 

Bad Landlords Beware – Annual Inspections of Rental Property Upheld

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 4thAmendment 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.

Cities' Closure of Medical Marijuana Dispensaries Is Not Discrimination Under Americans with Disabilities Act

Attorney Authors: 

The Ninth Circuit Court of Appeals recently issued an opinion declaring that the federal Americans with Disabilities Act ("ADA") does not protect medical marijuana users claiming discrimination based on their use of marijuana. In James v. City of Costa Mesa, the Court held that doctor-recommended marijuana use, authorized by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA.  (No. 10-55769, May 21, 2012.)  This ruling highlights the continued conflict between state and federal law over the use of marijuana for medical purposes, and recognizes that marijuana has no legitimate use under federal law.

Plaintiffs sought to prevent the efforts by the cities of Costa Mesa and Lake Forest ("Cities") to close medical marijuana collectives; plaintiffs' theory was that the Cities’ actions of closing the collectives interfered with plaintiffs’ access to medical marijuana. Plaintiffs further alleged that the closure of the collectives amounted to discrimination in the provision of public services, thus violating the ADA. 

State Law Forbids Employers From Requesting Social Media Passwords From Job Applicants

This month, Maryland became the first state to pass a law that prohibits an employer from requesting or requiring job applicants to hand over username and passwords for social media websites, such as Facebook and Twitter.

Maryland passed Senate Bill 433 and House Bill 964, which forbid employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information. However, the law also protects employers by prohibiting employees from downloading employer proprietary information to personal accounts and allowing employers to require that employees provide password and login information for company email accounts.

The law takes effect October 1, 2012, and may be found here.

Amount of Money Public Agency Willing to Pay For Real Property Is Permitted In Closed-Session

California's Attorney General, Kamala D. Harris, has issued an opinion which confirms that the real-estate-negotiations exception to the open meeting requirements of the Ralph M. Brown Act permits discussion in closed session of:  (1)  the amount of consideration that the local agency is willing to pay or accepting exchange for the real property rights to be acquired or transferred in the particular transaction [the negotiator's authority regarding the price]; (2) the form, manner, and timing of how that consideration will be paid; and (3)  items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential [the negotiator's authority regarding the terms of payment].

Cite: 2011DJDAR 18488, Filed December 27, 2011

Cities and Counties May Ban Medical Marijuana Dispensaries

Attorney Authors: 

On November 9, 2011, the California Court of Appeal, Fourth Appellate District, issued a ruling holding that state law does not preempt the City of Riverside's ("City") ordinance banning medical marijuana dispensaries ("MMD").  (City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., et al. (2011 Cal. App. LEXIS 1406).)

Significant CEQA Streamlining Reform Bills Enacted

Attorney Authors: 

Three important reform bills designed to streamline California Environmental Quality Act (CEQA) processing and review for certain classes of projects have been enacted and will take effect January 1, 2012.  SB 226 creates a new exemption for urban infill and renewable energy projects.  It also makes a variety of amendments to both CEQA and SB 375, the landmark 2008 legislation designed to integrate California's land use, transportation and greenhouse gas (GHG) reduction policies.   AB 900 shortens the Court review for CEQA challenges to certified "leadership projects" by authorizing lawsuits to be brought directly in the Court of Appeal on an expedited schedule.  "Leadership projects" must be certified LEED silver or higher, be carbon neutral, create "high-wage, highly skilled" jobs, and result in an investment of at least $100 million in California's economy (among other requirements).  SB 292 is a narrow bill designed to accommodate a new sports stadium and convention center in downtown Los Angeles by  streamlining judicial review in exchange for reductions in GHG emissions and traffic impacts.

SB 226 is likely to have the broadest effects for public agencies and private developers by facilitating urban infill projects.  It will likely reduce the time and expense for CEQA review for infill projects.  SB 226 expands the definition of urban infill projects, strengthens CEQA's tiering provisions, and provides that impacts from greenhouse gas emissions will not defeat the urban infill exemption under certain conditions.

Click here for a more detailed analysis of these recent CEQA amendments.   

Administrative Hearings Are “Actions” Subject to an Award of Attorneys Fees

Attorney Authors: 

In Edna Valley Watch v. County of San Luis Obispo, the Court of Appeal determined that the trial court could make a Section 1021.5 award of attorneys’ fees that the plaintiffs incurred in preparing for an administrative hearing. 

As a prerequisite to filing their CEQA lawsuit, the plaintiffs had appealed San Luis Obispo County’s grant of a conditional use permit to a church for its planned church complex.  The court held that these administrative proceedings were useful and necessary to the litigation essentially because the plaintiffs could not have brought their lawsuit without first exhausting their administrative remedies, and that “[i]n fact, there can be no public interest litigation without first filing an administrative proceeding.” 

Mobile Home Rent Control Ordinances Still a Viable Option in California

On May 17, 2011, the U.S. Supreme Court refused to hear a developer’s challenge to the City of Goleta’s mobile home rent control ordinance, ending a long court battle over the future of the high value real estate and the validity of rent control regulations for mobile home parks in California.  (See Guggenheim, et al. v. City of Goleta, 598 F.3d 1061 (9th Cir.(Cal.) Mar 12, 2010), cert denied --- S.Ct. ----, 2011 WL 884881, 79 USLW 3554 (U.S. May 16, 2011).)  In December, an en banc panel of the Ninth Circuit upheld the ordinance, rejecting the Guggenheim’s regulatory takings claim finding that none of the three factors for establishing a regulatory taking, set forth Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), were satisfied.  (Click here to read prior post on Ninth Circuit ruling.)  This decision affirms the validity of rent control regulations as a tool for municipalities to provide housing options for lower income residents. 

Ordinance Restricting Storage and Parking of Recreational Vehicles on Private Property Held Constitutional

Attorney Authors: 

On May 2, 2011, in Disney v. City of Concord, the California Court of Appeal, First Appellate District held that an ordinance regulating the storage and parking of recreational vehicles, including boats and other recreational equipment, on residential property was within the City of Concord’s police power.

The ordinance at issue generally prohibits the storage of recreational vehicles on front yards and driveways and requires that recreational vehicles stored in side and rear yards be located behind a six-foot high opaque fence. In addition, the ordinance limits the length of time that a recreational vehicle can be parked in a driveway for purposes of loading or unloading to 72 hours before or after a trip.

The plaintiff filed suit against the City arguing, among other things, that the ordinance exceeded the City’s police power because it was adopted primarily out of concern for community aesthetics. The Court rejected the plaintiff’s argument, reasoning that it is well established that the concept of public welfare includes aesthetic values. The Court also noted that the ordinance is “typical” as nearly all of the cities in Contra Costa County regulate the storage of recreational vehicles on private property to some extent.

For the complete opinion, click here.

Bill Introduced to Regulate Protests at Funerals

Attorney Authors: 

In the wake of the charged March 2nd U.S. Supreme Court decision, Snyder v. Phelps, the California Senate has proposed SB 888, which outlaws protests on public property within 1,000 feet of a burial site, mortuary, or place of worship, from one hour before, to one hour after, a funeral.

In Snyder, the Supreme Court held that the First Amendment protected the right of the Westboro Church to silently picket 1,000 feet from the funeral of a soldier while church members displayed various religious and anti-gay signs.

Proposed Law Would Require Cities and Counties to Provide On-Line Building Permit Applications for Electric Vehicle Charging Stations

The California Legislature recently introduced S.B. 730, a bill that would mandate cities and counties to provide on-line building permit applications for electric vehicle charging stations.

S.B. 730 would amend Section 44272 and Section 19830 to the Health and Safety Code, which establish the State's Alternative and Renewable Fuel and Vehicle Technology Program. The Program is administered by the State's Energy Commission, which provides grants, loans, or other financial incentives for the development of innovative technologies that transform California's fuel and vehicle types to help attain the State's climate change goals. In particular, S.B. 730 would require local governments to provide online building permit applications for installation of vehicle charging equipment. In addition, S.B. 730 would require local governments to approve building permits applications for installation of vehicle charging equipment within one business day, and review the work completed under the permit within 7 days of completion of the work.

If signed in to law, S.B. 730 would not only require California's cities and counties to have online building permit applications for installation of vehicle charging equipment, but the bill would also speed up the response time for building permits and inspections for vehicle charging equipment.

The bill is scheduled for a committee hearing on May 2, 2011. You can follow the status of S.B. 730 here.

The Second Appellate District Provides Guidance Regarding an Employer’s Reasonable-Accommodation Duty

The Second Appellate District's recent case of Cuiellette v. City of Los Angeles (2011) __ Cal.Rptr.3d ___, 2011 WL 1522390, highlights two critical issues that employers must consider when conducting a reasonable-accommodation analysis under the Fair Employment and Housing Act ("FEHA").

First, employers should not refuse to accommodate an injured worker based solely on a 100% permanent total disability rating in a related workers' compensation proceeding. Instead, employers must undertake an independent analysis of an employee's medical restrictions before concluding that an employee cannot be accommodated.

Second, employers must consider their informal policies when determining whether an injured employer can be accommodated. To the extent an employer has an established practice of maintaining permanent light duty positions for disabled employees, the employer must consider whether an injured employee is qualified for those light duty positions.

In Cuiellette v. Los Angeles, the City of Los Angeles sent an injured police officer home after learning that the officer received a 100% permanent disability rating in his workers' compensation proceeding. The officer subsequently filed a FEHA lawsuit and, after a jury trial, was awarded a $1.5 million judgment against the City.

Go here to read more about this case.

Mobilehome Park Rent Control – the Battle Continues

The battle between private property owners and municipalities over the constitutionality of rent control ordinances for mobile home parks wages on. Owners of a mobilehome park in the City of Goleta, the Guggenheims, have filed a petition for certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s rejection of their Fifth Amendment takings claims in July 2010. Their petition asks the Supreme Court to reverse the Ninth Circuit’s decision and find that the City’s ordinance caused a taking of their property. (Click here to see the Guggenheim v. City of Goleta petition for certiorari.)

In 1997, the Guggenheims purchased the mobilehome park subject to rent control under a County ordinance. The ordinance was adopted by the City of Goleta when it incorporated in 2002. The Guggenheims promptly sued the City claiming the rent control ordinance caused a taking of their property without payment of just compensation. The trial court granted summary judgment for the City, but a three judge panel of the Ninth Circuit reversed in a controversial decision. The Ninth Circuit granted the City’s request for a rehearing en banc and affirmed the trial court decision in favor of the City.

The Guggenheims’ argue that the Ninth Circuit’s en banc decision conflicts with the Supreme Court’s holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), conflicts with decisions from other federal and state appellate courts and is “a major blow to private property rights.” In essence, the Guggenheims seek to restrict the authority of local governments to adopt land use regulations affecting private property unless the government compensates the property owner, and/or any subsequent owner, for any economic impact of the regulation either at the time of adoption or at any time in the future.

Appellate Court Finds that Inclusionary Housing Requirement is Not an Exaction, Therefore Challenge is Time-Barred

Trinity Park v. City of Sunnyvale

In a decision supportive of local inclusionary housing ordinances, the Sixth District Court of Appeal ruled that a subdivider's challenge to a development condition requiring below market rate housing was not governed by the AB 1600 Mitigation Fee Act statute of limitations. The case is primarily analyzed as a statute of limitations issue, but in the course of the analysis, the court finds that Sunnyvale's affordable housing requirements were imposed as land use restrictions, and were not subject to AB 1600, the Mitigation Fee Act. Accordingly, the applicable limitations period was 90 days based on the Subdivision Map Act and Government Code section 65009(c)(1)(E). Since the developer did not file its challenge within the 90 day limitations period, the complaint was time-barred (Trinity Park v. City of Sunnyvale, ___ Cal.App.4th ___, March 24, 2011).

This is a good decision for local inclusionary housing ordinances. The court's ruling that the inclusionary requirements were not subject to the Mitigation Fee Act eliminates the Act as a potential source of challenge for similar local ordinances that are not imposed to defray the costs of public facilities for a development project pursuant to section 66020. The decision does not insulate inclusionary ordinances from other sources of challenge, but it does limit the potential for challenge based on the Mitigation Fee Act definition of an exaction. Apart from the inclusionary housing issue, the court reminds land use practitioners of the general rule that "the applicable statute of limitations depends on the nature of the cause of action...". Especially in today's complex entitlement processes where there may be multiple types and layers of land use approvals, there may also be the potential for multiple statutes of limitations. Determining the correct statute(s) of limitations requires a careful examination of the nature of the approval and the particular action being challenged.

Go here for the full analysis of Trinity Park v. City of Sunnyvale.

Solar Development Promoted By Department of Conservation for Williamson Act Land

The California Department of Conservation just issued the opinion "Considerations in Siting Solar Facilities on Land Enrolled in the Williamson Act" ("Opinion"), which provides suggestions to cities and counties for permitting solar development on property under contract of the California Land Conservation Act ("Act"). While the Opinion discusses nonrenewal and cancelling Act contracts as options to permit solar development, the critical part of the Opinion discuses how to determine if solar development is a compatible use for agricultural land under the Act. It provides guidelines and suggestions on the criteria that counties should follow in determining if solar development is a compatible use and suggests that solar development should be approved even if inconsistent with principles of compatibility, so long as certain criteria are met. Ultimately, it opines that the Act should not be an impediment to solar development.

As background, the Act promotes land conservation, with an emphasis on agricultural conservation. (California Government Code Section 51200 et seq.). It provides property tax relief to owners in exchange for an agreement that the land will not be developed or otherwise converted to another use for periods of 9 or 20 years. Currently, approximately 17 percent of California’s total acreage (or approximately 16.6 million acres) is restricted by Williamson Act contracts.

For the full opinion, click here.

Proposed Legislation to Address Governor's Proposal to Destablish Redevelopment Agencies

Late in the afternoon on Wednesday, February 23rd, the State Department of Finance released language for a proposed budget trailer bill that addresses the Governor’s proposal to disestablish redevelopment agencies. The 26-page bill has not yet been formally introduced, but may be introduced and considered by the Budget Conference Committee within the next few days. It is likely that the bill will undergo modification prior to consideration by the legislature, and if adopted, the bill may be subject to legal challenge.

The proposed legislation states that it is an urgency measure that would take immediate effect upon approval by the legislature and signature by the Governor. Although urgency legislation normally requires approval by two-thirds of both the Senate and Assembly, it is possible that the legislation may be included as part of the budget package and become effective with majority approval and the Governor’s signature.

Go here to read the full summary of the Department of Finance proposed trailer bill as released on February 23rd.

Local Agencies Now Required to Provide Electronic Copies of Project Documents to Contractor Plan Rooms

The California State legislature recently passed AB 2036, codified as Section 20103.7 of the Public Contract Code, which provides that "[a] local agency taking bids for the construction of a public work project or improvement, upon request from a contractor plan room service, must provide an electronic copy of a project's contract documents at no charge to the contractor plan room." Section 20103.7 of the Public Contract Code took effect January 1, 2011.

California has approximately 32 plan room services throughout the state which allow contractors to conveniently access public contract bid documents. These contractor plan rooms are entitled to a free electronic copy of local agency public contract documents upon request under Section 20103.7 of the Public Contract Code. The law does not specify the electronic form in which contract documents must be produced, or the timeframe for production. Nothing in section 20103.7 suggests that local agencies are required, at their expense, to create electronic contract documents in specialized formats. However, local agencies may wish to familiarize themselves with contractor plan room services and their preferred electronic formats, because larger bid pools may result from placement of bid documents with plan rooms. Timely submission of electronic documents to plan rooms may further assist agencies by encouraging a greater number of contractors to bid on agency projects.

Section 20103.7 does not require local agencies to provide all bidders electronic copies of contract documents at no charge - only contractor plan rooms, and only upon request.

Local agencies should consider taking steps such as the following to comply with the law and maintain control over the contract information sent to potential bidders:

  1. Include in electronic documents provided to plan rooms the date when the documents were prepared and a notice that all bidders are responsible for ensuring that their bid is submitted on the latest project documents, and that all addenda are included, by contacting the agency project manager.
  2. Include a watermark on the electronic documents provided to plan rooms so the agency can distinguish the electronic plan room copies from hard copies provided to bidders, and check whether bids submitted on electronic documents contain the latest addenda.
  3. In addition to providing electronic copies of project documents to contractor plan rooms, post them on your agency’s website and provide bidders with an opportunity to register to receive updates and addenda via e-mail.

These steps can help prevent award complications and bid disputes that may arise from submission of bids on incorrect or incomplete versions of project documents. We will continue to monitor developments in public contract bidding law and provide updates on further developments. For more information or assistance with other construction or contract matters contact Ben Reyes, Eric Danly or Eric Casher at 800.464.3559.

Ninth Circuit Panel Makes it More Difficult for Public Agencies to Recover Attorneys Fees Expended in Defending Unmeritorious Civil Rights and Employment Discrimination Lawsuits

A three judge panel of the Ninth Circuit Court of Appeals issued an opinion which will make it more difficult for local governments to recover attorneys fees they expend defending against unmeritorious civil rights and employment discrimination lawsuits. The law has long been clear that while a plaintiff who prevails in such a lawsuit will almost always recover his or her attorneys fees, a prevailing defendant is only entitled to recover attorneys fees if the court finds the plaintiff’s claims were “unreasonable, frivolous, meritless or vexatious.” The new case, Fabbrini v. City of Dunsmuir, 2011 slip. op. 2317 (9th Cir 2011) addresses a defendant’s right to recover fees when a complaint contains both claims for which attorneys fees are available and non-frivolous claims for which fees are not recoverable.

In an earlier case, Tutor-Saliba Corp. v. City of Hailey 452 F.3d 1055 (9th Cir 2006), the Ninth Circuit had rejected an argument that the mere presence of some non-frivolous claims barred a defendant from recovering fees expended in defending the frivolous claims at least where there is a clear basis to determine what work was performed for what claims. However, the court left open the question of what to do “where frivolous claims are combined with non-frivolous claims and the claims are not sufficiently distinct.” Id. at 1064, fn. 4. In Fabbrini, the court appears to have held that those fees are not recoverable.

In Fabbrini, the plaintiff pursued state and federal law civil rights claims all of which were eventually dismissed. Even though the federal claims were dismissed, there was no finding that they were frivolous. The district court awarded the defendant the attorneys fees it incurred in prosecuting an anti-SLAPP motion to dismiss the state law based claims. In addition to those fees, the district court had also awarded approximately $ 8,000.00 for work that was performed that was related to the arguably non-frivolous federal claims but was also “inextricably intertwined with” the work that was performed defending the state law claims for which fees were available. The district court was following a long line of decisions holding that a plaintiff who prevails on claim for which fees are available can also recover fees for work preformed on claims where fees are not available if the claims are sufficiently intertwined such that “the time spent on the claims could not reasonably be divided” See, Armstrong v. Davis, 318 F.3d 965, 975 (9th Cir. 2003). Thus, for example, if a plaintiff were to pursue four civil rights claims but only prevail as to one, he or she could still recover fees for all of the time spent conducting discovery that would be relevant to all four claims. In Fabbrini, the court held this principle does not work in reverse.

In rejecting the award of the additional fees, the court adopted a per se rule that where there are non-frivolous federal civil rights claims present, attorneys fees cannot be awarded to a prevailing defendant unless the fees are “exclusively attributable” to the claims for which fees are available. For example, if a plaintiff includes four clearly frivolous claims with one arguably non-frivolous claim, Fabrinni gives rise to an argument that any discovery, investigative work or motion practice incurred defending against the frivolous claims is not recoverable if the work can also be related to the one non-frivolous claim. Thus the presence of a single non-frivolous claim can be used to defeat or severely limit a fees motion brought by a prevailing defendant even where the majority of the plaintiff’s case is clearly frivolous.

Ninth Circuit Expounds on Burden Shifting Framework Established by the Supreme Court in City of Los Angeles v. Alameda Books

In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses. (See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) [“Alameda Books”].)

The burden-shifting framework provides that after a municipality supplies evidence supporting its rationale for passing an ordinance, the plaintiffs may attempt to “cast doubt” on the City’s evidence and rationale, after which the City may attempt to rehabilitate its rationale. (Alameda Books, 535 U.S. at 438-39.) Further, a municipality’s justification must not be that its regulation will reduce secondary effects simply by reducing speech proportionately. (Id. at 450, Justice Kennedy’s concurrence.)

The District Court, on remand several years after the Supreme Court’s ruling, employed the new framework and found that two expert declarations submitted by plaintiffs were sufficient to “cast doubt” on the City’s rationale for the ordinance. The declarations suggested that the City’s intent in passing the ordinance was to reduce secondary effects by closing arcades and therefore, proportionately reducing speech.

The Court found this testimony sufficient to shift the burden back to the City to rehabilitate its rationale, but then struck the primary evidence offered by the City for this purpose and granted summary judgment for plaintiffs.

The Ninth Circuit reversed. The Court explained that the District Court erred when it found the two declarations submitted by plaintiffs sufficient to “cast doubt” on the City’s rationale. The Court, in line with all of the key appellate decisions which have applied the Alameda Books framework, found that in order to successfully “cast doubt” on a municipality’s rationale for its adult ordinance, a plaintiff must offer not merely some evidence, but “actual and convincing” evidence. Such evidence must do more than challenge the government’s rationale; it must convincingly discredit the foundation upon which the government’s justification rests. If the City has multiple rationales in support of its regulation, a plaintiff must convincingly discredit all of the offered bases.

The Ninth Circuit found that plaintiffs’ declarations did not satisfy this standard because both declarants were biased, having a financial stake in the outcome of the decision, and neither offered any empirical evidence in support of their conclusions. The Court held that the frailty of such expert evidence must be examined at trial to determine whether it satisfies the heavy burden of “actual and convincing” evidence required under Alameda Books; such a determination is not appropriate on summary judgment.

This opinion reaffirms the holding in Alameda Books that an adult business bears a heavy evidentiary burden when challenging municipal regulations designed to ameliorate secondary effects of such businesses. If either an adult business or a City intends to rely on expert testimony in the second and third phases of the burden-shifting framework, either to “cast doubt” on the City’s grounds for the ordinance or to rehabilitate the ordinance, it must ensure that the expert testimony is sufficiently credible to meet the evidentiary burdens for summary judgment. For an adult business, expert testimony alone, without corroborating empirical evidence, may not do the trick on summary judgment and may require a full blown trial.

For more information on this case or other First Amendment matters, contact Dawn McIntosh or Deborah Fox at 800.464.3559.

Title VII Anti-Retaliation Provisions Are Held Applicable to Complaining Employee's Fiancée

Eric L. Thompson v. North American Stainless, LP

United States Supreme Court

In Thompson v. North American Stainless LP, the United States Supreme Court unanimously held that the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964 ("Title VII") protected an individual from being terminated in retaliation for his fiancée's prior complaint of discrimination to the Equal Employment Opportunity Commission ("EEOC"). The Supreme Court's decision overturned a Sixth Circuit Court of Appeals' ruling that a retaliation claim could not be brought by an individual who did not engage in the underlying protected activity. While this decision opens the door to third-party retaliation claims under Title VII, the Supreme Court was reluctant to provide a bright-line rule regarding the kinds of relationships and circumstances that support third-party retaliation claims under Title VII.

Eric Thompson and his fiancée, Miriam Regaldo, were both employees of North American Stainless ("NAS") in 2003. In February 2003, the EEOC notified NAS that Regaldo had filed a charge alleging sex discrimination. NAS terminated Thompson three weeks after NAS learned about Regaldo's sex discrimination complaint.

Thompson believed that NAS terminated him in order to retaliate against Regaldo for filing her complaint with the EEOC. Accordingly, Thompson filed a lawsuit against NAS alleging that NAS violated Title VII's anti-retaliation provisions. The District Court granted summary judgment to NAS, concluding that Title VII "does not permit third party retaliation claims." After a panel of the Sixth Circuit reversed the District Court's decision, the Sixth Circuit granted rehearing en banc and affirmed the District Court's earlier decision granting summary judgment. Notably, the Court reasoned that because Thompson did not engage in any statutorily protected activity, Thompson was not in the class of persons entitled to bring a retaliation claim under Title VII.

The Supreme Court disagreed, and held that Thompson fit within the class of persons entitled to bring a retaliation claim based on the protected activity of Regaldo. The Court reasoned that if Thompson was terminated based on the protected activity of his fiancée, that injuring Thompson was the employer's intended means of harming his fiancée. Under those circumstances, the Court held that Thompson's claim was well within the zone of interests protected by Title VII, and determined that Thompson had standing to bring a retaliation claim against NAS.

While the Supreme Court's decision in Thompson opened the door to third-party retaliation claims, it declined to identify a fixed class of relationships for which third-party reprisals are unlawful. Rather, it provided the following minimal guidance regarding the circumstances that may support such a claim: "firing of a close family members will almost always meet the . . . standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so . . "

For more information about this case or other labor and employment matters, contact Jesse Lad at 800.464.3559.

California Supreme Court Confirms Longstanding Rule Concerning Employee Layoffs

IAFF, Local 188 vs. Public Employment Relations Board
City of Richmond (Real Party in Interest)
California Supreme Court No. S172377

On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.

The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.

Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.

This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)

One additional aspect of the opinion is to define the criteria for permitting review of a decision by the Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction." Justice Baxter dissented from this portion of the opinion.

For more information about this case or other labor and employment matters, contact Art Hartinger at 800.464.3559.

Community Facilities District Financing Triggers Prevailing Wage Requirements For All Public Improvements of a Project

In Azusa Land Partners v. Department of Industrial Relations, the Second Appellate District Court of Appeal has upheld the California Director of Industrial Relations and the Superior Court of Los Angeles County in determining that use of Mello-Roos bonds to fund certain infrastructure required for a city’s approval of a mixed-use project requires payment of prevailing wages for the construction of all public facilities and infrastructure improvements required for the Project, and not just the public improvements funded by the bond proceeds.

In 2004 Monrovia Nursery entered into a Development Agreement with the City of Azusa (the City) for development of over 1,200 homes, 50,000 square feet of commercial construction, and public improvements and infrastructure, including a public school, park, sanitation district facilities, landscaping, and backbone infrastructure for the cities of Glendora and Azusa. The Nursery’s successor-in-interest, Azusa Land Partners (ALP) then entered into a Funding and Acquisition Agreement (Acquisition Agreement) with the City to provide partial funding of the required public facilities through establishment of a Community Facilities District to sell Mello-Roos tax bonds. The Acquisition Agreement initially referred to the eligible facilities simply as “Publicly Financed Facilities.” After the Mello-Roos bonds were issued, the City and ALP modified the Acquisition Agreement to identify specific, publicly financed facilities eligible for Mello-Roos funding.

The Acquisition Agreement required ALP to perform the public improvement work as a condition of approval of the project even if the actual cost exceeded the amount of bond funds. The bond proceeds funded a little less than half the actual cost of the public improvements, with the balance funded privately.

In 2007 the Director of Industrial Relations determined that the entire Project constituted a public work subject to prevailing wage requirements within the meaning of Labor Code Section 1720(a)(1). The Director also determined that the Project qualified for the partial prevailing wage exemption in Labor Code Section 1720(c)(2) under which only those public infrastructure improvements required as a condition of regulatory approval are subject to prevailing wage requirements, as long as the public funds contributed do not exceed the construction cost for the public improvements and the public entity does not retain a proprietary interest in the project. This determination was affirmed on administrative appeal in 2008.

ALP contended that only the public improvements actually funded by the Community Facilities District should be subject to prevailing wages and filed a petition for writ of mandate, which the trial court denied. The trial court found that Mello-Roos bond proceeds are public funds, the project is a “public work,” and that all public improvement work required as a condition of regulatory approval is subject to the prevailing wage law, regardless of the source of funding.

On appeal by ALP, the court of appeal stated that the entirety of Labor Code Section 1720 must be examined in analyzing prevailing wage issues, rather than focusing on select portions as ALP did. The statute should be liberally construed in keeping with the overall purpose of protecting employees on public works projects. The court addressed three specific arguments advanced by ALP.

First, the court rejected ALP’s contention that Section 1720(a)(2), defining public works as “[w]ork done for irrigation, utility, reclamation, and improvement districts…” limited application of prevailing wage requirements to work actually funded through the Community Facilities District. The court noted that the statute references “work done for” rather than “work paid for” by an improvement district, that all of the public improvement work was eligible for funding by the Community Facilities District and was required as a condition of regulatory approval, and that all work done for an improvement district is public work. Most important, the court found that the duty to pay prevailing wages on public works cannot be limited or eliminated by contract, such as specifying only certain public works that will be funded from Mello-Roos bond proceeds.

Next, the court determined that Mello-Roos bond funds “are public funds under the plain language of section 1720 and the Mello-Roos Act.” In so doing the court distinguished Mello-Roos bond financing from mere “conduit” financing where a public entity assigns its rights, including possession and control of the money, to a third party. The court also rejected ALP’s argument that Mello-Roos bond proceeds are akin to a government loan, the repayment of which is not contingent and is not at less than market rate interest.

Finally, the court held that use of the Mello-Roos bond proceeds to fund even a portion of the required public improvements triggered prevailing wage requirements for the entire project, subject to the Section 1720(c)(2) partial exemption. (The court also distinguished the analysis in Vineyard Creek Hotel & Conference Center, Redevelopment Agency, City of Santa Rosa (Oct. 16, 2000) Dept. Industrial Relations, PW 2000-016, which used a five-part test to determine whether “public” and “private” portions of a project were sufficiently integrated to impose prevailing wage requirements on the entire project, because the issue in Azusa was whether all public improvements should be subject to prevailing wages, and not the scope of the entire project. Following Azusa, it is unclear what effect the Vineyard Creek analysis may have in determining project scope outside the context of the Section 1720(c)(2) partial exemption.) The public improvements required for the project meet the test of the Section 1720(c)(2) partial exemption: The work was required as a condition of regulatory approval, the work cost more than the City’s contribution of public funds, and the City maintained no proprietary interest in the Project. The court found that applying ALP’s more narrow interpretation would result in developers being permitted to allocate lump sum public contributions to specific structures in order to minimize payment of prevailing wages and would thereby “render ineffectual” prevailing wage requirements for required public improvement work.

Court Invalidates EIR’s Use of Post-Approval “Future” Baseline For Analysis of Project Impacts

The California Environmental Quality Act, or CEQA, requires agencies to compare the potentially significant impacts of proposed projects to an “environmental baseline” – which CEQA provides shall “normally” consist of environmental conditions as they exist when environmental review is commenced. The California Court of Appeal, Sixth District, has ruled that an Environmental Impact Report (“EIR”) may not compare impacts to a baseline consisting of projected future conditions when the project is expected to be complete. The ruling, in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, is important, since comparison to a “future” baseline had become a widespread “industry practice,” particularly for analysis of traffic and circulation impacts.

The City of Sunnyvale prepared an EIR for the proposed Mary Avenue Extension, consisting of a new bridge to be constructed over two freeways and light rail tracks. The EIR compared traffic impacts of the project, and noise and air quality impacts associated with traffic, to a baseline consisting of forecasted traffic conditions -- without the project -- in the year 2020, the year in which the City expected the project to be complete and in use. The EIR’s baseline included future traffic levels based on build-out under the City general plan, along with numerous roadway improvements planned to be in place by 2020. In response to comments criticizing the traffic analysis, city staff reported that it had been prepared consistent with impact-analysis guidelines of the Santa Clara Valley Transportation Authority, as part of that Authority’s responsibilities under the state’s Congestion Management Law.

In court, the petitioners attacked use of a future baseline. The petitioners cited CEQA Guideline section 15125, which requires an EIR to describe physical environmental conditions in the vicinity of a project “as they exist at the time the notice of preparation [of the EIR] is published or . . . , at the time environmental analysis is commenced, . . .” and which further provides that “[t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.”

In defense of its future baseline, the City cited Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, which the City argued gave it discretion to use a future baseline. In Save Our Peninsula, the court had stated that “. . . where the issue involves an impact on traffic levels, the EIR might necessarily take into account the normal increase in traffic over time. Since the environmental review process can take a number of years, traffic levels as of the time the project is approved may be a more accurate representation of the existing baseline against which to measure the impact of the project.” (Id. at 125 – 126.) Some agencies and legal practitioners had interpreted Save Our Peninsula to allow an agency with knowledge that environmental conditions would either improve or degrade by the time a project is constructed to select a future baseline, so long as the agency was careful to summarize the evidence supporting its selection of the future baseline.

Sunnyvale West Neighborhood Assn significantly narrows that interpretation. The decision acknowledges that the California Supreme Court, in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, endorsed Save Our Peninsula’s holding. But Sunnyvale West Neighborhood Assn further notes that the Supreme Court “never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the ‘baseline’ for assessing a project’s environmental consequences.” Therefore, Sunnyvale West Neighborhood Assn. invalidated the EIR’s use of a future baseline consisting of projected conditions in 2020 -- more than a decade after proposed project approval.

Sunnyvale West Neighborhood further holds that use of a post-approval future baseline is a “failure to proceed in a manner required by law,” and that agencies lack discretion to select such a baseline, regardless of whether they determine that a post-approval future baseline is supported by “substantial evidence.” The decision alternatively holds that, even if the City had possessed discretion to select a post-approval future baseline, the Santa Clara Valley Transportation Authority guidelines for traffic impact analysis under the Congestion Management Act would not provide an adequate basis for selecting a post-approval future baseline under CEQA. Finally, the court rejected an argument that the EIR’s use of a future baseline consisting of traffic conditions expected to be much worse than presently exist resulted in a “more conservative and realistic” impact assessment and was, therefore, not reversible “prejudicial” error. The court, after acknowledging that this argument had “some surface appeal,” held that use of a post-approval future baseline improperly “obscures the existence and severity of adverse impacts that would be attributable solely to the project under the existing conditions without the other assumed roadway improvements.”

Sunnyvale West Neighborhood does not rule out discussion of foreseeable changes and future conditions in an EIR, and notes that such discussion may be necessary to compliance with CEQA – for example, in discussion of cumulative impacts or the “no project” alternative. Nevertheless, the decision emphasizes the primacy of comparison to an “existing conditions” baseline. “Once a specific roadway project is proposed and becomes the subject of an EIR under CEQA, . . . a straightforward assessment of the impacts produced by the project alone on the existing environment is the foundational information of an EIR even where secondary analyses are included.”

Annoying Civic-Mindedness or Credible Threat of Violence?

Can a city restrict the conduct of a self-described civic-minded individual, with a history of flamboyant speech and dramatic behavior in his communications with the city, without running afoul of free speech rights? In City of San Jose v. William Garbett, filed on November 24, 2010, the Sixth Appellate District Court of Appeal says yes, when the conduct meets the conditions for an injunction under Code of Civil Procedure section 527.8.

Section 527.8, also known as the Workplace Violence Safety Act, allows any employer to seek a temporary restraining order and injunction on behalf of an employee who “has suffered unlawful violence or a credible threat of violence from any individual” at the workplace. For purposes of the statute, a city is an “employer.” (Code Civ. Proc. § 527.8(d).) “Unlawful violence” is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, …” (§ 527.8(b)(1).) “Credible threat of violence” is defined as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.8(b)(2).) To obtain an injunction, an employer must establish, by clear and convincing evidence, not only that the defendant engaged in unlawful conduct within the meaning of the statute, but also that great or irreparable harm would result to the employee if the injunction were not issued due to the reasonable probability unlawful violence will occur in the future. (Code Civ. Proc. § 527.8(f); Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335.)

In Garbett, the City of San Jose sought 14 injunctions (and temporary restraining orders) on behalf of the city’s deputy city clerk, the mayor and city council. The city submitted evidence that the appellant, William Garbett, age 70, had a long history of grievances with the city going back many years, and that the appellant made a “credible threat of violence” toward a deputy city clerk, and other city employees under section 527.8(b)(2). In addition to evidence that the appellant regularly visited the city clerk’s office and attended city council meetings, expressed fanciful ideas, appeared agitated or angry or resentful toward the city, and had inappropriate verbal or physical outbursts, there was additional evidence that this antagonism escalated. Specifically, there was evidence that the appellant threatened a deputy city clerk by stating that his only recourse to change policy in San Jose was to take action similar to that of one angry man in Kirkwood, Missouri, who a few months prior had shot and killed several people at Kirkwood City Hall. The deputy clerk, who understood the reference, reportedly felt threatened and feared for her safety and the safety of the mayor and city council. After she reported the event, the city searched the appellant when he attempted to enter council chambers and implemented extra monitoring procedures or security measures.

The trial judge granted the city’s initial requests for interim restraining orders. Following an evidentiary hearing – which included the testimony of several witnesses who had previous interactions with the appellant and two expert witnesses – the trial judge also issued 14 injunctions restricting the conduct of the appellant toward the deputy city clerk, mayor and council.

Each injunction included orders requiring the appellant to stay 300 yards from the protected individuals and City Hall. The injunction also included specified exceptions which would allow appellant to attend public City Council. Those exceptions included requiring appellant to enter City Hall through a specified entrance, be subject to a search before entering the City Council chambers, sit in a specific row, use a particular stairway during meetings, and communicate with the City Clerk’s office by mail or proxy.

Appellant sought review of the injunctions contending, in part, that the orders restricting his conduct and movements violated his rights to free speech under the First Amendment to the United States Constitution and the California Constitution, and represented the city’s attempt to “curtail what amounts to annoying behavior.”

The Court of Appeal affirmed all 14 injunctions including the restrictions on the appellant’s movements. The Court disagreed with the appellant’s First Amendment arguments, relying on California Supreme Court precedent establishing the right of the state to penalize willful threats to perform illegal acts, even those consisting of pure speech. In re M.S. (1995) 10 Cal.4th 698, 710.) The Court also found substantial evidence to support the court’s factual findings on the requisite elements of section 527.8, namely that the appellant had expressed a credible threat of violence toward city employees that was not constitutionally protected speech; that this conduct caused the city employees to experience fear; and a likelihood of future harm.

When the appellant protested that he did not intend to threaten anyone, the Court dismissed this argument, concluding that the defendant’s subjective intent is not required for the conduct to be deemed a credible threat under the current definition found in section 527.8(b)(2).

Appellant further challenged the injunctions on overbreadth grounds, taking issue with the limitations on his access to the City Hall building and his movements within the council chambers. The Court nevertheless upheld these restrictions, deferring to the trial judge’s view of the evidence and factual findings on the requisite elements of section 527.8, and the lower court’s considerable discretion to fashion orders aimed at preventing harm of the nature suggested by the threats.

The Garbett case establishes good law for public entities which seek to curtail repeat offenders or conduct that escalates or develops into what has been classified as more than merely annoying or unprotected speech.

Proposition 26’s Immediate Impact on Local Governments Will Be Limited

Voters approved Proposition 26 at the November 2, 2010 election, and, upon certification of the results, the measure will be effective as of November 3. The main thrust of Proposition 26 was to require a two-thirds vote of both houses of the Legislature to approve “regulatory fees” that the measure indicates are unrelated to a regulatory program. But it will also directly limit local governments’ authority to levy new fees. Nonetheless, our initial judgment is that the impacts on most local governments will not be particularly significant, although the impact may increase as ambiguities regarding the text of the measure are resolved in the future.

Proposition 26’s stated purpose is to require voter approval for regulatory fees that “exceed the reasonable costs of actual regulation or are simply imposed to raise revenue for a new program and are not part of any licensing or permitting program. . . .” Thus, the proposition was aimed at a narrow class of regulatory fees. The text however is less surgical. It simply defines “tax” to include “any levy, charge, or exaction of any kind imposed by” local government except for those listed among seven exceptions. The significance of this new definition is that any levy not covered by one of the seven listed exceptions is subject to voter approval.

Importantly, though, Proposition 26 does not apply to any fees that were in effect on November 2, 2010. Thus, even if a fee enacted prior to November 3, 2010 does not fit within any of Proposition 218’s exceptions, it will nonetheless remain valid if it is not increased.

Additionally, most of the fees presently imposed by local governments fit clearly within one or more of the seven listed exceptions. For example, sewer and water service charges are exempted because they are subject to Proposition 218’s fees and charges provisions. Similarly, assessments that comply with Proposition 218 are exempt. And, Proposition 26 has no impact on development impact fees and other exactions imposed as a condition of property development.

Thus, Proposition 26’s key impact on local government is that it will prevent the enactment or increase of regulatory fees that do more than recover the costs of regulation. Proposition 26 restricts regulatory fees by limiting recoverable costs to those associated with issuing licenses and permits, performing investigations, inspections and audits, and administration and enforcement. For instance, the Legislative Analyst indicated in the ballot pamphlet that fees imposed on alcohol retailers to generate funds to reduce public nuisance problems associated with alcohol would likely be considered taxes.

Nonetheless, because of the manner in which it was drafted, Proposition 26 may result in legal disputes in the future over the local government’s authority to adopt and increase fees of all types. We along with other local government lawyers are presently analyzing the potential arguments that may arise. Time will tell, but our initial view is that, outside of the regulatory fee context, Proposition 26 is unlikely to be interpreted a manner that is substantially more restrictive than previous law.

Federal Government Announces it Will Enforce Federal Marijuana Laws if Proposition 19 the “Regulate, Control and Tax Cannabis Act of 2010” Passes

If California voters adopt Proposition 19 on November 2, 2010, California will be the first state in the nation to legalize marijuana for recreational use. Marijuana, whether for recreational use or medical use, remains an illegal substance under the Federal Controlled Substances Act (“CSA”). In an October 13th letter to former chiefs of the U.S. Drug Administration Agency, Attorney General Eric Holder stated the Federal Government will continue to enforce its marijuana laws in California, even if Proposition 19 passes.

According to Holder’s letter, “We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law.” The Attorney General also said, “If passed, this legislation will greatly complicate federal drug enforcement efforts to the detriment of our citizens.”

This letter may suggest a potential departure from the Administration’s position of not prosecuting medical marijuana users in compliance with state law, as set forth in an October 19, 2009 letter from the Department of Justice (“DOJ”). While the DOJ expressed its commitment to the enforcement of the CSA in all states, it explicitly told Federal prosecutors that the Department’s priorities should not focus on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” 

With the Federal government’s stated opposition to Proposition 19, and the intent to enforce the CSA, local governments face an even bigger challenge of trying to comply simultaneously with State law and Federal law.

Increased Contractor Costs on Public Works Projects - Strategies For Reducing Owner Risk

General contractors on public works projects often submit claims for extra compensation to public entity project owners for increased costs during construction, and point to information they did not know when preparing their bids. In light of the recent California Supreme Court decision in Los Angeles Unified School District v. Great American Insurance Co. (2010) 49 Cal.4th 739, such claims are likely to increase in the future.

In Los Angeles Unified School District, the Supreme Court held that a contractor does not need to show fraudulent intent in order to recover for extra work or expenses necessitated by unknown conditions. Rather, the contractor can recover for such extra expenses where "(1) the contractor submitted its bid or undertook to perform without material information that affected performance costs; (2) the public entity was in possession of information and was aware the contractor had no knowledge of, nor any reason to obtain, such information; (3) any contract specifications or other information furnished by the public entity to the contractor misled the contractor or did not put it on notice to inquire; and (4) the public entity failed to provide the relevant information."

However, there are various strategies that public entities can employ during project bid phase to reduce the risk that they will be liable for such claims:

(1) Where conditions permit, the public entity should require a mandatory pre-bid site visit to the project location and walk through for all contractors that bid on the project.

(2) Public entities should double check the bid documents to ensure that all information material for bidders to calculate the cost of their performance has been provided. Such information may include reports from consultants that the public entity has hired to provide geotechnical, environmental, and other pre-construction site analysis. Where the public entity does not have any such information, the bid documents should specify that bidders are required to perform a site analysis in coordination with the public entity to determine any information material to their bids.

(3) For public projects that require the use of a design professional and/or project manager, the design professionals and/or project managers should be contractually required to provide any and all information that may be material to bidders in formulating their bids. Additionally, the public entity should require that it be named as an additional insured in case the it receives a contractor claim for increased cost of performance due to the failure to disclose material information. Finally, the design professional and/or project manager should be required to indemnify and defend the public entity with respect to any and all contractor claims for additional compensation that are the result of the failure to disclose information known by the design professional and/o project manager.

By employing these strategies, public entities can reduce the risk that they will be liable for contractor claims for increased cost of performance.

Requiring Religious Institutions to Comply with Neutral Conditional Use Permit Process is Not a Substantial Burden under RLUIPA

Attorney Authors: 

In County of Los Angeles v. Sahag-Mesrob Armenian Christian School, a California Court of Appeal affirmed a grant of preliminary injunction enjoining the religious school from operating in a residential zone until it obtained a conditional use permit. The school had first removed the case to federal court, but the district court remanded to the state court; the district court lacked subject matter jurisdiction because federal law was raised only as a defense.


On September 9, 2010, in Anderson v. City of Hermosa Beach, the Ninth Circuit reversed the district court and directed that summary judgment and an injunction be granted in favor of a person seeking to establish a tattoo parlor, holding that tattooing is a form of pure expression fully protected by the First Amendment, and that the city’s total ban on tattoo establishments was not a reasonable “time, place and manner” regulation.

The city’s zoning code, by omitting tattoo parlors among the list of allowable uses, effectively banned the siting of such businesses anywhere within the city. The city argued that it needed only a rational basis for its zoning decision, and that the health concerns associated with tattooing combined with the lack of county personnel available to inspect tattoo parlors justified its total ban.

The court, taking judicial notice of “the skill, artistry, and care that modern tattooists have demonstrated,” and drawing on detailed explanations of the art and history of tattooing, concluded that tattoos themselves, the process of tattooing, and the business of tattooing are all protected as “pure expressive activity.” Thus, the court explained, a reasonable “time, place and manner” test, rather than the less stringent tests applicable to the regulation of mere “conduct with an expressive component,” should apply.

Applying the time, place or manner test, the court concluded that the city’s total ban on tattoo parlors failed because it was substantially broader than necessary to achieve the city’s goals of protecting the public health. The city’s arguments that current government resources were insufficient to safeguard the city's legitimate health concerns could not, without a stronger evidentiary showing by the city, justify the ban, because, among other things, the deployment of additional resources to safeguard public health is within the city's control. For this reason, the court believed that enhanced regulation of tattooing (rather than a total ban on tattoo parlors) would achieve the city’s objective.

The court also concluded that even if the city's prohibition were tightly fit to the purpose of protecting health, another prong of the reasonable time, place or manner test would doom the ban: because the medium of the human body is unique, tattoo artists and wearers would lack the constitutionally mandated adequate alternative channels to express themselves if tattoos were completely unavailable.

The Ninth Circuit recognized that its ruling conflicts with those of many other jurisdictions, perhaps setting up a request for en banc review or a cert. petition in the U.S. Supreme Court.

After this decision, city-wide bans of tattoo parlors are unlikely to survive. Although the opinion leaves open the possibility of significant regulation of these establishments, for a city to show that no plausible regulation could ameliorate its public health and safety concerns, such that a ban is necessary, would appear difficult.

California Supreme Court Recognizes Right to Bring Pitchess Motions Before Preliminary Hearings

In an opinion filed July 27, 2010, the California Supreme Court held that a criminal defendant has the right to bring a Pitchess motion before the preliminary hearing in the defendant's case. Pitchess motions are brought by criminal defendants to discover prior citizen complaints in peace officer personnel files alleging misconduct by peace officers that may be relevant to a defense. In the case, Galindo v. Superior Court, S170550, the Supreme Court disagreed with the trial court in the matter, which had held that Pitchess discovery is not normally available before a preliminary hearing because such discovery is relevant only to issues at trial, where the prosecution has to prove a defendant's guilt.

The Galindo opinion is important to law enforcement agencies and their efforts to protect the confidentiality of peace officer personnel files because it eliminates a strong procedural defense to Pitchess motions brought before a preliminary hearing has occurred.

Affordable Housing Regulations Survive Another Challenge

The City of Cotati has defeated the Pacific Legal Foundation ("PLF") in a challenge to the City’s affordable housing regulations and protections for the endangered California Tiger Salamander. (Click link to read the opinion in Mead v. City of Cotati, Ninth Circuit Case No. 09-15005.) In 2008, PLF sued the City and state and federal wildlife agencies on behalf of a housing developer alleging various constitutional claims resulting from two conditions included in the Cotati Planning Commission’s decision to issue a permit for his project – comply with the City’s affordable housing regulations and comply with guidance issued by the wildlife agencies for the protection of the endangered California Tiger Salamander ("CTS"). On PLF’s website they announced that the lawsuit against the City was ground zero in their national campaign to eradicate affordable housing regulations and to change takings law in favor of property owners. On July 22, in an unpublished opinion, the Ninth Circuit affirmed the dismissal of the case by the District Court for failure to state a viable claim and rejected PLF’s entreaties to soften the takings standards for property owners. Not surprisingly, this case no longer appears as the poster child on PLF's website.

Court of Appeal Postpones Ruling on the Validity of City of Anaheim's Ordinance Bannning Medical Marijuana Dispensaries

July 19, 2010 has come and gone and there has been no sign of the much anticipated decision in Qualified Patients Association v. City of Anaheim, Case No. G040077. The California Court of Appeal, Fourth District, Division Three, vacated the submission of the parties and re-submitted the matter for an additional 30 days (i.e. August 18, 2010).

At issue in this case is the validity of City of Anaheim's ("Anaheim") ordinance banning medical marijuana dispensaries. The appeal arises out of the trial court's ruling sustaining Anaheim's demurrer and holding that the ordinance is not preempted by California's Compassionate Use Act and Medical Marijuana Program. A more detailed discussion of the issues can be found in this Qualified Patients Association v. City of Anaheim case discussion.

FPPC Eyes Amendments to the Political Reform Act

The Sacramento Bee is reporting that the Fair Political Practices Commission (FPPC) will create a task force to recommend amendments to the Political Reform Act. According to the Bee, the task force will focus its attention on aspects of the Act governing campaign activities, including disclosure requirements for independent campaign expenditures and regulations related to issue advocacy.

The Political Reform Act is the primary source of statutory law in California regarding conflicts of interest for governmental officials. The Act also regulates the reporting and disclosure of economic interests, gift and honoraria limits, and campaign contributions. The FPPC is the state agency charged with the enforcement of the Political Reform Act and the adoption of regulations implementing the Act.

The Sacramento Bee's full report can be found here.

California Supreme Court Declines to Review Opinion Making it Harder for Cities to Defeat Dangerous-Condition-of-Property Claims

The state Supreme Court last week declined to review or to depublish the court of appeal's opinion in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337. Lane holds that, when a plaintiff alleges that a dangerous condition of public property caused injury, a lack of prior accident claims is not enough to enable the public entity to defeat the claim on summary judgment. We blogged about Lane and its significance when it appeared. The denial of review means that Lane will stand as California law binding on all state trial courts. However, the denial does not mean that the California Supreme Court has endorsed the Lane rule. Thus, other courts of appeal could reject the rule in future cases—though that is unusual. We will continue to track this issue.

Protected Delta Fish Relieved That State Agencies are People Too

The Department of Water Resources ("DWR"), a state agency, operates a pumping system in the Sacramento -San Joaquin Delta that results in the taking of three fish species listed as threatened or endangered under the California Endangered Species Act ("CESA"). DWR was sued by Watershed Enforcers, a nonprofit corporation, to stop DWR from pumping unless and until it obtained a permit authorizing the take of the listed fish species under CESA. Three local water agencies intervened in the lawsuit arguing that DWR is not a "person" as that term is defined in CESA.

U.S. Supreme Court Holds City's Review of Employee Messages on City Pager Was Reasonable in Circumstances, But Avoids Clarifying General Standards

in city of ontario v. quon, the u.s. supreme court issued a narrow ruling that the city's review of a swat officer's text messages sent over a city-issued pager was reasonable in the circumstances of that case, and thus did not violate the fourth amendment to the constitution. but the court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped quon would provide guidance. the questions quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?

read more here.

Cities Can Prohibit Solicitions of Employment Between Day Laborers and Drivers to Protect Traffic Flow and Public Safety

The Ninth Circuit has upheld an ordinance adopted by the City of Redondo Beach which prohibits solicitations of employment (as well as business and contributions) between day laborers and occupents of motor vehicles on streets or highways. Both the trial court and the Ninth Circuit in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, No.

California Supreme Court Holds Secret Ballots Unnecessary for Approving Property-Related Fees and Assessments

Proposition 218 limits local governments’ ability to raise or to impose new assessments or property-related fees and charges, requiring them to submit new or increased assessments or fees to approval by affected property owners, or by the whole electorate. The California Supreme Court unanimously ruled yesterday that, in such proceedings, secret ballots are not required. (Greene v. Marin County Flood Control & Water Conservation Dist.)

Social Media Webinar

Meyers Nave presents a complimentary webinar that will explore employers' rights and obligations with regard to monitoring employees in the workplace, including employee use of social media. 

Will the Vacancy Control Provisions in Goleta's Rent Control Ordinance for Mobile Home Parks be Upheld in the Latest Court Battle?

The Ninth Circuit is poised to reconsider its controversial decision that a vacancy control provision in a rent control ordinance for mobile home parks in the City of Goleta caused a taking of private property under the Fifth Amendment. The split decision by a three judge panel in Guggenheim v.

Paper for Plastic? California Supreme Court to Decide If Ban on Plastic Bags Requires Environmental Impact Review (EIR)

The California Supreme Court decided last week to review a Court of Appeal opinion that upheld a claim, brought by a group of plastic-bag manufacturers, that a city was required to prepare an EIR before enacting an ordinance to ban retailers from using plastic bags. (Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720.) The Supreme Court will review both whether an EIR was required, and whether the manufacturers’ group had legal standing to challenge the ordinance for lack of an EIR.

The Court of Appeal had split 2-1 on whether an EIR was required. ( Download Save the Plastic Bag opinion.) The majority stressed the “low threshold” for requiring a city to prepare an EIR: if there’s a fair argument based on substantial evidence that any part of a project may significantly harm the environment, then an EIR is required—even if the city could find that the project’s overall effect is beneficial. The majority found that several studies in the record support a fair argument that the ban will raise paper bag use, and that paper bags cause more environmental harm than plastic. (Producing and distributing paper bags takes more fossil fuel and creates more nasty byproducts, among other problems, according to these reports.) The dissent argued that any effect would not be “significant,” because Manhattan Beach is one small city, and that the ordinance was covered by a categorical exemption from CEQA for projects to protect the environment.

The Court of Appeal noted that, since the trial court ruling requiring an EIR, the City of Palo Alto had entered a settlement with the plastic bag group agreeing not to enact a ban until it completed an EIR; San Jose had announced that it will prepare an EIR for a single-use-bag ordinance, and Green Cities California is preparing a Master Environmental Assessment (MEA) for local governments seeking to restrict single-use plastic bags. (See the MEA Scope of Work here.)

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”). AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt.

Is Mobile Home Park Rent Control a Taking?

On March 12, 2010, the U.S. Ninth Circuit Court of Appeals granted the City of Goleta’s request for an en banc hearing in the case of Guggenheim v. City of Goleta 582 F.3d 996 (9th Cir. 2009). The wrangling surrounding this case has been closely watched by both sides of the debate on the regulatory takings front since the Court issued its split decision in September 2009. In this 2-1 decision by Judge Bybee, the Court found that Goleta’s mobile home rent control ordinance caused a facial regulatory taking for which compensation must be paid (under Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978)). The mobile home park owners brought suit after the City imposed the already existing county rent control ordinance when it incorporated in 2002. The opinion was immediately controversial – assailed by many, including low-income housing advocates, as a vast departure from existing jurisprudence and hailed and applauded by property owners advocates. Goleta promised to seek a full panel hearing the from the Court, and that requested was granted. Oral arguments are tentatively scheduled for June 21, 2010.

For an in depth review of the opinion, click here.

Court Holds that Inclusion of a "Supercenter" in a Project Does Not Automatically Mean Urban Decay Impacts Must Be Studied

In Melom v. City of Madera, the Fifth Appellate District revisited the issue of evaluation of the environmental impacts of “Supercenters” under CEQA addressed previously in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens) and held that there is nothing about the inherent nature of a supercenter that would require a lead agency to evaluate urban decay impacts. Rather, each project should be evaluated based on the substantial evidence in the record before the lead agency. Click to read more.

Initiative to Legalize Marijuana in California Will Appear on November Ballot

On March 24, 2010, a voter-sponsored initiative, the “Control, Regulate and Tax Cannabis Act of 2010,” qualified for the November ballot. The ballot measure permits persons 21 years of age or older to posses, cultivate and transport not more than one ounce of marijuana for personal use. Additionally, the ballot measure authorizes local governments to regulate and tax commercial production and sale of marijuana. For a more detailed discussion of the ballot measure’s provisions, click here.

If passed by a majority vote, the new statute would take effect the day following the election, or November 3, 2010. Local governments may want to consider adopting regulations related to the cultivation of marijuana, and if desired, regulations licensing establishments selling marijuana. Passage of this ballot measure is also likely to impact local government regulations related to medical marijuana collectives or cooperatives, as these facilities may seek to expand their operations to also serve non-medical marijuana users over the age of 21.

California Supreme Court to Decide If Parties Have Right to Appellate Review Before Complying With Cities' Legislative Subpoenas

The California Supreme Court announced this week that it will decide an important question about enforcing legislative subpoenas issued by cities to aid investigations: If a trial court orders a party to comply with such a subpoena, is the party automatically entitled to have an appellate court review that order before the party must comply?

The Court will decide that question in the context of a dispute over subpoenas that the City of Dana Point issued to require five medical marijuana dispensaries to produce records the City could use to determine if they are operating legally. After a trial court ordered the dispensaries to comply with the subpoenas, each filed a notice appealing the order to the Fourth District Court of Appeal, based in Orange County. In 2007, the Sixth District Court of Appeal in San Jose held that a party in such circumstances has the right to appeal the order enforcing the subpoena. (City of Santa Cruz v. Patel (2007) 155 Cal.App.4th 234; read the relevant part here.) Such an appeal automatically stays the order until the court of appeal decides the case, which usually takes at least a year. In the Dana Point cases, the court of appeal issued an order stating that the parties did not have the right to appeal, but must instead seek review by petitioning the court of appeal to issue an extraordinary writ. This is an important difference: courts of appeal can and usually do deny writ petitions summarily and within weeks, without full briefing, oral argument, or a written opinion. Moreover, filing such a petition does not automatically stay the order, though the party resisting compliance can ask the courts for such a stay.

The California Supreme Court has now agreed to resolve the dispute over how a party resisting a legislative subpoena can secure appellate review. While the issue in these cases is limited to subpoenas issued by a city under Government Code section 37104, the Court's ruling may also resolve a parallel, unsettled dispute over appellate review of administrative subpoenas issued by State agencies and departments.

The five cases are:

  • Enforcement Against Dana Point Safe Harbor Collective, No. S180365
  • Enforcement Against The Point Alternative Care, Inc., No. S180468
  • Enforcement Against Holistic Health, No. S180560
  • Enforcement Against Beach Cities Collective, No. S180749 and
  • Enforcement Against Dana Point Beach Collective, No. S180803

Criminal Defendants Must Allege Specific Facts to Access Police Personnel Records, Court of Appeal Affirms

In a decision published February 9, 2010 the California Court of Appeal, Fourth District, affirmed that criminal defendants, when making Pitchess motions, must submit a declaration or affidavit alleging a specific factual scenario that shows how the relevant police officer(s) committed misconduct. This has long been the applicable standard for successful Pitchess motions, which seek disclosure of confidential police officer personnel records to aid in the defendant’s case. However, the opinion, People v. Sanderson, also recognizes that where the specific facts alleged in support of the Pitchess motion call an officer’s truthfulness into question by merely denying portions of an incident report, the trial court is within its discretion to determine that the defendant failed to sufficiently allege the required factual scenario in support of the motion. In particular, the Court of Appeal affirmed the trial court’s finding that the Pitchess motion at issue did not present sufficient facts because the defendant had only disputed the portion of the police report that recited the defendant’s pre-arrest statements. The defendant’s denials thus raised a credibility question, but did not present an alternate version of facts, as required.

This decision is important because defendants bringing Pitchess motions often attempt to satisfy the specific factual scenario requirement by merely denying portions of an incident report. Now, the law is clear that a trial court has the discretion to find that a defendant has not shown good cause where the defendant does not present an alternative version of facts, but merely calls an officer’s credibility into question. Read the entire opinion here.

State Initiative to Legalize Marijuana One Step Closer to 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.

8,000 Adult Items in One Store Found "Substantial" by 2nd Circuit

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.

High Praise for Pot Growers' Superstore

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.

Police Officers Cautioned About Use of Social Networking Sites like Facebook

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.

No More Limits on "Permissible Quantity” of Medical Marijuana

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.

U.S. Supreme Court to Determine City Employee's Right to Privacy in Text Messages Sent on City Equipment

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 .

Court of Appeal Requests Further Briefing in Medical Marijuana Dispensaries Case

The California Court of Appeal has requested additional briefing in Qualified Patients Association v. City of Anaheim. At issue in this case is the validity of City of Anaheim's ordinance banning medical marijuana dispensaries.

The appeal arises out of the trial court's ruling sustaining the City's demurrer and holding that the ordinance is not preempted by California's Compassionate Use Act and Medical Marijuana Program Act. The Court's invitation for further briefing centers on Health and Safety Code Section 11570, which bars as nuisance the use of any premises for unlawful distribution, storage, or manufacture of controlled substances, including marijuana. Read more here.

'The Devil is in the Details' of Ninth Circuit's Decision on Municipal Sign Codes

The Ninth Circuit’s recent decision in Reed v. Town of Gilbert, 2009 WL 39250233 (9th Cir. 2009) reaffirms the Court’s acceptance that speaker-based and event-based exemptions to municipal sign codes may be a content-neutral regulation. Cities may confidently consider speaker-based and event-based exemptions to sign regulations but should take extreme care in drafting well tailored language.

Latest Court Decision in Palmer/Sixth Street Properties v. City of LA May Affect Inclusionary Housing Ordinances

Following a decision by the California Supreme Court to not review or depublish the appellate court decision in Palmer/Sixth Street Properties v. City of Los Angeles, cities and counties should evaluate their inclusionary housing ordinances with respect to rental properties. The Palmer decision calls into question whether inclusionary housing ordinances which require developers to offer a portion of rental units as low-income units or pay an in-lieu fee may be in violation of California's Costa-Hawkins Act. Unless and until the Legislature amends the Costa Hawkins Act, local agencies should consider how to revise their existing inclusionary requirements in accordance with Costa-Hawkins and the Palmer decision. Click here to read more analysis of the court's decision. Click here to read our previous post on Palmer.

Ninth Circuit Decision May Impact Cities’ Regulation of Street Performers and Street Speakers

The Ninth Circuit’s June 2009 en banc decision in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) found some of the City of Seattle’s regulations pertaining to street performers and others engaged in expressive conduct to be unconstitutional, including some regulations that it had previously concluded, in 2008, to have passed constitutional muster.

Extension for Compliance with Red Flags Rule to August 1, 2009

Last week, the Federal Trade Commission ("FTC") issued a press release stating that enforcement of the "Red Flags Rule" is being delayed until August 1, 2009. The rule had originally been set to take effect November 1, 2008 and was previously delayed until May 1, 2009. 

The Obama Administration's Position on Medical Marijuana Dispensaries

Recent statements made by U.S. Attorney General Eric Holder suggest a shift in the federal government's position on the prosecution of medical marijuana dispensaries and their operators. At a press conference on February 25, 2009, Mr. Holder stated that law enforcement's actions will be consistent with the President's campaign statement that he would allow states to regulate medical marijuana without interference from the federal government. Please follow this link to read more.

Court of Appeal Holds Closed Session Communications to be Privileged

The First District Court of Appeal recently issued an unpublished opinion that helps to clarify the privileged nature of closed sessions of a City Council. To read an article discussing this opinion click here.

SB 1407: More Parking Fees

As of the first of January, SB 1407 has come into effect. The new law authorized the issuance of up to $5 billion in lease revenue bonds for purposes of financing, planning, design, construction, rehabilitation, renovation, replacement, and leasing or acquisition of state trial court facilities. The measure also authorizes a variety of increases to penalties and fees as revenue sources for the bonds. Click here to read more.

SB 1473: Cities and Counties Must Collect Fees to Fund Development of State Building Standards

Beginning January 1, 2009, cities and counties must collect, on behalf of the California Building Standards Commission a fee from building permit applicants based on building valuation to fund development of statewide building standards. Click here to read more.

Court of Appeals Holds that Political Speech at City-Permitted Events on Public Property Must Be Allowed

In a new decision, Dietrich v. Cardella, the United States Court of Appeals for the Ninth Circuit has held that the complete exclusion of a political organization from a privately-sponsored event held on public property and open to the public violates the First Amendment if the permittee could have disclaimed the speech in some other manner.

California HCD to Hold Stakeholder Meetings

The California Department of Housing and Community Development (HCD) will hold three stakeholder meetings to discuss the new Neighborhood Stabilization Program (Program), which will provide approximately $530 million in Community Development Block Grants within California. HCD is currently reviewing the Program guidelines and has invited all entitlement and non-entitlement jurisdictions, as well as any interested parties, to stakeholder meetings at the following locations:

Tuesday, October 28, 2008

10:00 a.m. – 3:00 p.m.

Junipero Serra State Building

First Floor Carmel Room

320 W. Fourth Street

Los Angeles, CA 90013

Monday, November 3, 2008

10:00 a.m. – 3:00 p.m.

VCGBC Building

400 R Street

Sacramento, CA 95811

Thursday, November 6, 2008

10:30 a.m. – 3:30 p.m.

Merced, CA (Location to be announced)

For more information on the stakeholder meetings from the California Redevelopment Association website, click here. For more information regarding the Program, click here.

Ninth Circuit Narrows Federal Telecommunications Act's Preemption Standard for Local Regulation

Overturning recent decisions regarding local regulation of telecommunication facilities, the Ninth Circuit, in Sprint Telephony PCS, L.P. v. County of San Diego, recently reversed course in finding that enforcement of San Diego's wireless telecommunications ordinance was not preempted by the federal Telecommunications Act of 1996. Section 253(a) of the Telecommunications Act provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate telecommunications service." Similarly, § 332(c)(7) of the Act states that local regulations: "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." In 2003, the County of San Diego enacted a Wireless Telecommunications Facilities Ordinance, which established permit requirements and additional restrictions on the placement and construction of wireless telecommunication facilities. Sprint challenged the County's Ordinance arguing that it violated § 253(a) of the Act because the Ordinance prohibited, or had the effect of prohibiting, the provision of wireless telecommunication services. The County argued that § 253(a) was inapplicable because § 332(c)(7) of the Act was the exclusive authority on wireless regulations.

California Court of Appeal Holds That City of West Hollywood's Ordinance Banning Mobile Billboard Advertising Applies to Commercial and Noncommercial Speech

In Showing Animals Respect and Kindness et al., (SHARK) v. City of West Hollywood, the California Court of Appeal for the Second District upheld a City of West Hollywood ("City") ordinance banning all "mobile billboard advertising" of any content, at any time, and on any street. The Court's opinion addresses whether the term "advertising"--as used in the ordinance--covers both commercial and noncommercial speech.

Plaintiff SHARK is a nonprofit organization that campaigns against cruelty to animals. SHARK operates a truck called the "Tiger Truck" which is equipped with four one-hundred inch video screens mounted on the front, back, and sides. The screens show animals being injured or killed by humans and below the screens are LED signs proclaiming messages protesting animal cruelty. The "Tiger Truck" also broadcasts the sounds of animals being abused.

The City adopted an ordinance making it unlawful for any person to conduct any mobile billboard advertising upon any street or other public place in the City. Under the ordinance, mobile billboard advertising includes any vehicle which carries, conveys, pulls, or transports any sign or billboard for the primary purpose of advertising. The ordinance was adopted in order to promote the safe movement of vehicular traffic, to reduce air pollution, and to improve the aesthetic appearance of the City.

The City agreed that SHARK was engaged in noncommercial speech. However, the City argued that the term "advertising" applies to both commercial and noncommercial speech. SHARK contended that the term "advertising" applies only to commercial speech and, consequently, the ordinance was not applicable to billboards conveying noncommercial speech. The Court held that the term "advertise" is not limited to commercial speech and noncommercial speech, such as messages which endorse political candidates, social causes, and religious beliefs, may also fall within the term "advertise" under the ordinance. Having determined that the ordinance applies to both commercial and noncommercial speech, the Court concluded that the ordinance was content neutral, served a significant government interest, was narrowly tailored, and left open alternative channels for communication. The dissenting opinion, however, interpreted the ban on advertising to pertain to commercial speech only and found that the definition of "advertising" in the ordinance was overbroad and ambiguous.

City of Cotati Defends Affordable Housing and the California Tiger Salamander

The Pacific Legal Foundation ("PLF") recently filed a lawsuit in federal court against the City of Cotati's inclusionary housing ordinance which requires new development to set aside affordable housing units or pay a fee to finance affordable housing. PLF, who represents the plaintiff developer, claims that the City is trying to force the developer to subsidize affordable housing, thus creating an unlawful taking. Additionally, PLF alleges that a condition imposed on the development project for mitigation of impacts on an endangered species, the California Tiger Salamander, is an unlawful taking. In response to PLF's lawsuit, the City filed a motion to dismiss for failure to state a claim for which relief can be granted. The City is represented by Meyers Nave.

High Cost of Gas Prompting Smart Growth

With gasoline prices above $4 per gallon, communities are focusing their attention on whether smart growth planning can alleviate the financial burden of high gas costs and reduce air pollution. The Sacramento Area Council of Governments has actively promoted the "Blueprint," which sets forth smart growth planning principals such as higher densities, transportation choices, mixed-use development and conservation of natural resources. To read an article about the Blueprint and smart growth development in the Sacramento region, click here.

To read more about the Blueprint and smart growth planning, visit the Blueprint website by clicking here.

Changes to the Brown Act Effective July 1, 2008

Effective July 1, 2008, the Ralph M. Brown Act (“Brown Act”), imposes additional requirements on local agencies concerning regular meeting agendas and documents prepared by the agency for regular meetings. (See Government Code Section 54957.5.)

Law Enforcement Agencies Must Disclose the Names of Peace Officers Involved In a Critical Incident

On May 19, 2008, California Attorney General Jerry Brown issued an opinion (No. 07-208) determining that the names of peace officers involved in a critical incident are generally subject to disclosure under the California Public Records Act ("CPRA"), unless the facts of the particular incident support an exemption in accordance with the CPRA's public interest exception because the public interest served by not disclosing the names clearly outweighs the public interest served by disclosing the names.

The opinion attempts to clear up the ongoing tension between the public's right to information about law enforcement activities with the right of peace officers to privacy and confidentiality in their personnel matters. This tension has been frustrated in recent years by judicial opinions which have been interpreted differently and which can lead to inconsistent results when applied to a specific factual scenario. In New York Times Co. v. Superior Court, 52 Cal.App.4th 97 (1997), the California Court of Appeal for the Second District held that a law enforcement agency must generally provide the names of officers involved in a critical incident. However, in Copley Press, Inc. v. Superior Court, 39 Cal.4th 1272 (2006), the California Supreme Court noted that the general categorical assertion that a peace officer's name is generally subject to disclosure was incorrect, at least to issues related to peace officer disciplinary matters.

The Attorney General opinion finds that the holding in Copley did not entirely overrule the holding in New York Times, as some have assumed; rather, taken together the Copley and New York Times holdings should be construed to mean that the name of an officer involved in a critical incident, including one where lethal force is used, must be disclosed as long as disclosure does not reveal confidential information from the peace officer's personnel file and/or endanger either the integrity of an investigation or the safety of a person. The Attorney General's opinion takes into consideration whether the CPRA's exemptions for information contained in personnel records and police department records of investigations and complaints makes the name of a peace officer involved in a critical incident exempt from disclosure and concludes that these exemptions are not applicable.

City’s Failure to Exercise CEQA Discretion in Properly Designating a Potentially Historic Resource Constitutes Reversible Error

Valley Advocates v. City of Fresno, --- Cal.Rptr.3d ---, 2008 WL 400245

In Valley Advocates v. City of Fresno, a local organization challenged the City of Fresno’s approval of demolition of an apartment building on the basis that the City improperly determined that the building was not an “historical resource” for CEQA purposes. The project application was reviewed by the local Historic Preservation Commission who recommended that the building be listed on the local register of historical places. However, at a public hearing the City Council denied listing the building on the local register. Staff subsequently found the project to be exempt from CEQA. On appeal of staff’s decision to the City Council, the Council was advised that their previous decision to deny listing of the building on the local register was conclusive as to the building’s historical significance under CEQA, and, therefore, that the project would not impact an historical resource. Accordingly, the City Council denied the appeal. Valley Advocates filed a petition for writ of mandamus challenging the City’s determination that the subject building was not an historical resource.

City of Vallejo in Fiscal Crisis- Facing Bankruptcy

The City of Vallejo is facing serious fiscal crisis. According to the City Manager, Joseph Tanner, it faces a $6 million deficit in its budget. The City is anticipated to make significant reductions in municipal services, including employee layoffs and program funding cuts. The Vallejo City Council is currently engaging in emergency labor negotiations with its public safety unions. Vallejo appears to be the first City in California history to be close to declaring bankruptcy. Read more about this story on the San Francisco Chronicle's website.

Infill Infrastructure Bond Application Workshops Scheduled for February

Housing and Community Development (HCD) has scheduled application workshops in February for the Infill Incentive Grant Program.

Proposition 1C (2006) included $850 million in bonds for housing. The FY 2007-08 budget appropriated $300 million of the funds. HCD is appropriating $240 million and the other $60 million is being appropriated by the CALReUSE program for brownfield cleanup.

HCD’s February workshops will address the appropriation of the $240 million (an additional $550 million in this account remains to be appropriated in future years).

For information, follow this link.

Sacramento Court Orders Disclosure of Peace Officer Information Statewide

On January 28, 2008, Sacramento Superior Court Judge Lloyd Connelly issued an Order requiring the Commission on Peace Officer Standards & Training (POST) to disclose any and all information on every California peace officer it has in its database. The information that POST was ordered to provide was everything that it may have on each peace officer, including name, rank, wage, annual earnings, hours worked, and any other data stored in its system that would be subject to disclosure under the California Public Records Act. California public agencies are stunned because this Order does not distinguish among the officers in any way, including, for example, those assigned to high-risk operations such as undercover narcotics, street gang, auto theft, and prostitution task forces. In addition, the Order does not allow for the redaction or withholding of this information for officers involved in high-risk assignments.

Meyers Nave is in the process of preparing motions to intervene in this case, L.A. Times v. POST (Sacramento Superior Court Action No. 03CS01077). Intervention must be done quickly, however, based upon the Court's Order that POST must file notice with the Court on February 15, 2008, informing the Court and the L.A. Times if it will comply with the Order to disclose, or if it would like to proceed further on the merits of the underlying action. If you would like additional information, please feel free to contact Trish Hynes at, or 510-808-2000. More information to follow...

Court Rejects Streamlined Public Notice for Zoning Ordinance Action

A legislative body may not notice its public hearing on a proposed zoning ordinance or amendment before it has received the Planning Commission’s recommendation. In County v. County of Sierra (January 9, 2008, C055448) _____ Cal.App.4th _____ the court interpreted Government Code section 65856 to mean that the legislative body must provide notice after it has received the Planning Commission recommendation and that the recommendation must be included in the notice as the “general explanation of the matter to be considered” by the legislative body. (Gov’t. Code § 65094.)

State Appellate Court Holds that Police Department Must Return Lawfully Possessed Medical Marijuana

In City of Garden Grove v. Superior Court, the Court of Appeals for the Fourth Appellate District, Division Three, held that the City of Garden Grove ("City") must return lawfully possessed medical marijuana that was seized by the City's Police Department during a traffic stop after Defendant Felix Kha failed to yield at a red light. Defendant Kha was cited for running a red light and unlawfully possessing less than one ounce of marijuana while driving. Defendant Kha pleaded guilty to the traffic violation, but presented evidence to the trial court showing that he was authorized to use medical marijuana to treat an undisclosed "serious medical condition."  The drug charge was subsequently dismissed by the prosecutor, however, the prosecutor opposed Kha's request to have the seized marijuana returned to him.

For purposes of state law, the Court found that Kha was in lawful possession of the marijuana that was found in his car. Therefore, California Health and Safety Code Section 11473.5(a) mandates that the marijuana not be destroyed by order of the court. The Court also found that the City's police department would not be aiding and abetting a violation of federal law if its officers return Kha's marijuana to him because to be liable as an aider and abettor, a person must associate himself with the criminal venture and participate in it as in something that he wishes to bring about and seek by his actions to make it succeed. Although the Court recognized that Kha's possession of the marijuana is a violation of federal law, the Court found that the City has no intention to facilitate such a breach. The Court also found that the City's Police Department should be protected from federal liability if they return Kha's marijuana to him in compliance with a court order because federal law makes law enforcement personnel immune from any civil or criminal liability arising out of their handling of controlled substances as part of their official duties.

The Court further held that principles of due process induce the return of lawfully possessed medical marijuana seized by police officers, although neither the Compassionate Use Act ("CUA") nor the Medical Marijuana Program ("MMP") expressly require it. The Court reasoned that possession of one's property is a substantive right and the retention of property without pending criminal action, violates the property owner's due process rights.

The City also argued that the Control Substances Act ("CSA") preempts the CUA and the MMP to the extent that California law authorizes the return of medical marijuana to qualified users. The Court rejected the City's contention by narrowly holding that "federal supremacy principles do not prohibit the return of marijuana to qualified user whose possession of the drug is legally sanctioned under the state law."  The Court found that Congress did not intent to preempt the states on the issue of drug regulation as evidenced by the statement in the CSA that federal drug laws do not generally preempt state law. The Court also found that the state law does not interfere with the federal government's authority to criminalize marijuana. As the Court explained, the purpose of the CSA is to combat recreational drug abuse and curb drug trafficking, while the purpose of the CUA is to provide access to and to regulate marijuana for medicinal use. The Court reasoned that Congress only intended to bar physicians from using their prescription-writing powers as means of engaging in illicit drug dealing and trafficking as conventionally understood and did not intend to regulate the practice of medicine generally. In invoking the preemption doctrine, the City did not challenge the constitutionality of the state law nor the right of Californians to access marijuana for medicinal purposes. Consequently, the Court did not address these issues.

Ellin Davtyan assisted in the writing of this post.

Court Reverses Ruling Granting an Anti-SLAPP Motion to Strike City's Suit Over Eminent Domain Reform Ballot Initiative

In City of Riverside v. Stansbury, the Fourth Appellate District reversed the trial court's ruling granting defendants' anti-SLAPP motion, thereby allowing the City to proceed with its challenge to a ballot initiative. Defendants had submitted the ballot initiative to amend the City of Riverside's charter, restricting the City's use of eminent domain. The City sued, seeking declaratory relief that the proposed initiative was invalid, as it addressed a matter of statewide concern and was internally inconsistent. Defendants moved to dismiss the City's action under Code of Civil Procedure section 425.16, which provides for a special motion to strike strategic lawsuits against public participation, or "SLAPP" actions. While the trial court granted defendants' motion, the appellate court determined that the City's suit did not arise from any protected activity--rather, it simply disputed the validity of the proposed initiative. Therefore, the anti-SLAPP statute did not apply. The court also noted that granting an anti-SLAPP motion in these circumstances would mean that an initiative's constitutionality could never be challenged prior to the election, which was contrary to law.

California Supreme Court Issues Two Rulings Requiring Disclosure of Individual Public Employee Name, Salary and Other Employment Information under the California Public Records Act

In International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court of Alameda County filed August 27, 2007, the California Supreme Court held that the broadly based and widely accepted community norm and public policy applicable to government employee salary information is public disclosure, that public employees' names and salaries are excluded from the zone of financial privacy protection, and that such disclosure does not constitute an unwarranted invasion of personal privacy. Accordingly, the Court held that employee name and salary information is subject to disclosure under the California Public Records Act ("Act"). The Court also held that the protections afforded peace officer personnel records under California Penal Code sections 832.7 and 832.8 do not extend to officer salary records, and that as a result, police officer name and salary information is generally subject to disclosure to the same extent as name and salary information of other public agency employees. However, the Court observed that Section 6255 of the Act could apply to exempt some police officer name and salary information from disclosure. For example, the Court suggested that the name and salary information of some under cover officers working large amounts of overtime could be exempt if disclosure would undermine the safety and efficacy of such officers.

The impact of this case is probably broader that its actual holding, and the records request on review by the Court, would suggest. The case arose from a request for name and gross salary information of City of Oakland peace officer and non-peace officer employees earning $100,000 or more per year. Nonetheless, the language and reasoning of the opinion is not limited to public employees earning $100,000 or more per year. Although the Court's holding may be partly dicta, it appears intended to announce a rule that virtually all public agency employee names and salaries are subject to disclosure, regardless of salary amount.

In a related case, filed the same day, the Court held in Commission on Peace Officer Standards and Training v. Superior Court of Sacramento County that the names, employing departments, and hiring and termination dates of California peace officers listed in records of the Commission on Peace Officer Standards and Training are subject to disclosure under the Act. The Court concluded that the privilege against disclosure of peace officer personnel records established in California Penal Code sections 832.7 and 832.8 does not render the names, employing departments, and hiring and termination dates of peace officers exempt under the Act, because such information is not covered by any of the categories of protected information enumerated in California Penal Code section 832.8 (a)-(f).

For more information on these cases, please feel free to contact Eric Danly or Elizabeth Pianca.

San Francisco and California Grapple with Unfunded Health Care Benefits

The City and County of San Francisco is working to address a $4.9 billion unfunded liability for the 30-year costs projected for retiree health care benefits. This is second to the State of California's unfunded liability of $48 billion. Click here for the S.F. Chronicle article on this story.

California Supreme Court Clarifies Constitutionality of Zoning Impacts on Economic Competition

In Hernandez v. City of Hanford, the California Supreme Court reversed the appellate court’s decision, and held that the City of Hanford’s zoning ordinance prohibiting furniture sales in the City’s Planned Commercial (PC) district, with a limited exception for large department stores, did not violate the State or Federal Equal Protection Clause. The Court clarified language in a line of cases beginning with Van Sicklen v. Browne (1971) 15 Cal.App.3d 122, which addressed the impacts of local zoning regulation on economic competition. The Court agreed with the appellate court that a general prohibition on furniture sales within a particular zoning district was not unconstitutional. The Court reversed the appellate decision, however, with respect to the ordinance's limited exception, allowing for furniture sales by large department stores. The Court concluded that the exception was rationally related to a legitimate public purpose that had been overlooked by the appellate court: the objective of attracting and retaining large department stores in the City's PC district. Therefore, the City's disparate treatment of department stores and other retail establishments within the PC district was not unconstitutional.

California Cities Focus on Infrastructure Improvement Projects

The League of California Cities’ Legislative Action Days took place on May 16-17 in Sacramento. More than 450 representatives from California cities attended the two-day event, which featured an update on legislative issues and time for lobbying at the State Capitol. L eague President Maria Alegria, Mayor of Pinole, kicked off Legislative Action Days by welcoming everyone to Sacramento followed by Executive Director Chris McKenzie’s update on the organization’s strategic goals and priorities. Issues of importance to local government, including infrastructure, housing and healthy communities were discussed. For more about this post, click here.

County of Orange Ordered to Lower Building Inspection and Construction Plan Check Fees

In County of Orange v. Barratt American Inc., the California Court of Appeals ordered the County of Orange to lower its building inspection and construction plan check fees pursuant to the Mitigation Fee Act, which requires that such fees cannot exceed the reasonable cost of providing the service for which the fee is imposed. The County of Orange had accumulated a surplus of fee revenues because it collected more in fees for building inspections and construction plan checks than the cost of performing the services. The Court of Appeals affirmed the trial court's judgment, which found that the County had used most of the excess revenue in expenditures that were reasonably necessary to support the cost of services, but that the County had not shown the expenditures were reasonable and necessary as to $4.5 million of the excess revenue, and ordered the County to lower fees until that amount was dissipated.

New Installment of ADA Technical Assistance Materials Issued By DOJ

On December 5, 2006, February 27, 2007, and May 7, 2007, the Civil Rights Division of the U.S. Department of Justice issued installments of a new technical assistance document to improve compliance with Title II of the Americans with Disabilities Act. The Tool Kit is designed to teach state and local government officials how to identify and fix problems that prevent people with disabilities from gaining equal access to state and local government programs, services, activities, and facilities. New installments will be released over the next 10 months.

For more information, please see Tool Kit for State and Local Governments (new chapters 05/07/07).

Google Launches Initiative to Improve Access to Public Records

Internet search company Google announced a partnership with four states, including California, to make it easier to search for public information on state agency websites. The initiative will remove the technical barriers which limit access to public records available on state agency websites. Advocates for greater government access and transparency are commending Google's efforts. Privacy advocates, however, have expressed concerns about making public records available which contain personal and confidential information.

Google Press Release--Google and Four US States Improve Public Access to Government Websites

Associated Press Article--Google Helps Make Public Records Available

League of California Cities City Attorneys Conference

Please join Meyers Nave attorney Art Hartinger in Monterey at the LOCC Spring City Attorneys Conference on May 3-4, 2007 where he will present a Labor and Employment Law Review. For more information, please contact the League of California Cities or send an e-mail to

California Cities Publishes Legal Advocacy Report

The League of California Cities published its litigation update on April 18, 2007. The report summarizes the cases reviewed by the legal advocacy committee, which engages in advocacy on behalf of California cities in the courts and in the legislature. Click on this link to review the full report: Litigation Update

For more information, please contact Ben Reyes or Steve Meyers

State is Not Entitled to Award of Attorneys' Fees Under Private Attorney General Doctrine

A Court of Appeals reversed a lower court's award of $173,450 in attorneys' fees to the California Attorney General on the grounds that the state did not meet the financial burden criterion. (The People ex rel. Edmund G. Brown, Jr., as Attorney General, v. Tehama County Board of Supervisors, 2007 DJDAR 3650 filed March 16, 2007.) In the action, the People of the State of California, acting through the Attorney General, succeeded in obtaining an injunction requiring the Tehama County Board of Supervisors to apply the provisions of the Subdivision Map Act to a lot line adjustment on property owned by a corporate defendant. The court then awarded attorneys' fees to the State and against the Tehama County Board of Supervisors.

The Court of Appeals overturned the lower court's decision. The Appellate Court held that the financial burden criterion of Code of Civil Procedure section 1021.5 (the private attorney general doctrine statute), "served to limit fee awards under the statue to persons who pursue public interest litigation at a cost to themselves that is out of proportion to any personal interests they might have in the outcome of the matter." The court held that "the award of substantial attorneys' fees to public interest litigants and their attorneys, who are successful in such cases, encourages the representation of deserving interests and worthy causes." However, in this case, the court reasoned that a "fundamental anomaly arises in applying that criterion in an action brought by the Attorney General on behalf of the People of the State of California" because the Attorney General should not need encouragement to pursue litigation that is in the general interest of the state's population; that is the Attorney General's job. The court concluded: "To reward the Attorney General with attorney fees for pursuing litigation it is his or her duty to pursue would stand the private attorney general doctrine on its head."  

California Supreme Court Denies Councilmember's Defense

In People v. Chacon, the California Supreme Court held that a Bell Gardens City Councilmember could not use the entrapment by estoppel defense against charges that she violated Government Code Section 1090 by seeking and obtaining appointment as the city manager while serving as a councilmember. Entrapment by estoppel rests on the premise that the government may not actively provide assurances that conduct is lawful, and then prosecute those who act in reasonable reliance on those assurances.

The Councilmember raised the defense because the Bell Gardens City Attorney drafted an ordinance eliminating a municipal code provision that required one year of ineligibility for city manager appointment after departure from council service, and advised the Councilmember that such appointment would comply with state law. However, the Supreme Court declined to apply the defense to public officials who seek to defend conflicts-of-interest violations by claiming reliance on public attorney advice: "If permitted to rely on the defense of entrapment by estoppel, such an official could insulate herself from prosecution by influencing an employee to provide the advice she seeks. The appointee would be forced to choose between two masters: the official in whose hands his continued employment rests and the public that both are sworn to serve."

The Supreme Court indicated that it had no opinion as to the Councilmember's guilt or innocence.

In a separate portion of the opinion, the Supreme Court held that an order of dismissal made because the prosecution announces it is unable to proceed as the result of a pretrial motion is appealable.

Ninth Circuit Court of Appeals Adopts "Less Rigorous" Scrutiny Standard for City of San Diego's Campaign Contributions Ordinance as Applied to the Signature-Gathering Phase of a Recall Campaign

In Citizens for Clean Government v. City of San Diego, the United States Court of Appeals for the Ninth Circuit held that the City of San Diego ("City") did not provide evidence demonstrating that the City's ordinance limiting campaign contributions is closely drawn to match a sufficiently important government interest when applied to the signature-gathering phase of a recall campaign.

The City's municipal code bans contributions exceeding $250 to any committee supporting or opposing a candidate for City Council office. In 2003, Citizens for Clean Government ("Citizens") launched an effort to recall a member of the City Council. The recall campaign proceeded in two phases. Phase one required Citizens to gather a requisite number of signatures to file a recall petition. Phase two would occur after the signatures had been collected and verified and the City called a special election. Citizens ultimately failed to collect the required number of signatures for a recall campaign during the signature-gathering phase.

Citizens argued that the contribution limit was unconstitutional as applied to the signature-gathering phase of a recall campaign because it violated its right to freedom of speech and freedom of association under the First Amendment of the United States Constitution. Applying the "less rigorous" scrutiny standard established in Buckley v. Valeo (424 U.S. 1 (1976)), the court found that the City offered no record evidence or governmental findings of deliberation on the issue of campaign finance in recall campaigns to establish a sufficiently important interest in limiting contributions. The court remanded the case to the district court for further evidentiary development in accordance with the "less rigorous" scrutiny standard.

California Supreme Court Reviewing Civil Rights Strict Liability Case

California cities and adult use operators alike are monitoring Manta Management Corporation v. City of San Bernardino (Case No. S144492) currently being reviewed by the California Supreme Court. According to the City of San Bernardino, the case will decide whether "cities will have unlimited strict liability any time a preliminary injunction is not sustained at trial based on federal constitutional grounds." The Court of Appeal upheld a verdict against the city awarding $1.4 million in lost-profit damages for closing a strip club with a preliminary injunction in violation the owner’s First Amendment rights. The City argued that seeking redress through the courts is not a violation of the First Amendment, so no civil rights damages should have been awarded. The Court of Appeal was unpersuaded, but the high court could reach a different conclusion. The case may have far-reaching consequences for California public agencies like Cities and Counties depending upon how the Supreme Court rules.

Briefing has been completed and oral argument will likely be schedule within a year. You can view current information on the case docket, and sign up for email notifications about the case, by clicking here

Court of Appeal Holds that Regulation Limiting Campaign Contributions Drafted by the California Fair Political Practices Commission Conflicts with the Political Reform Act

In Citizens to Save California v. California Fair Political Practices Commission, the Court of Appeal upheld the trial court's ruling in favor of plaintiffs, campaign committee and candidate, which challenged a regulation promulgated by the California Fair Political Fair Political Practices Commission (FPPC) to limit campaign contributions.

Specifically, the Court agreed with the trial court which concluded that plaintiffs would likely prevail on their claims that the regulation was unconstitutional and exceeded FPPC's statutory authority. Also, because the trial court believed that plaintiffs would otherwise suffer irreparable harm because of the regulations negative effect on plaintiffs' First Amendment rights, the court granted a preliminary injunction pending trial.

To review the entire opinion, click here.

Court of Appeal Denies Rehearing of Its Decision that Resident Stated a Claim against City for Violation of the Brown Act's Requirement that City Council Meetings be Open and Public

On November 30, 2006, the Court of Appeal denied rehearing of its opinion entered in Wolfe v. City of Fremont. In Wolfe, the Court held that a City resident successfully stated a claim for violation of the sections of the Brown Act (California Government Code section 54950 et seq.) that prohibit the legislative body of a local agency from conducting nonpublic meetings.

Specifically, the Court held that the City Council of Fremont violated the Brown Act by privately discussing a new policy promulgated by the city's police department. The Court further held that the resident's allegations led directly to the inference that the council members had reached a consensus through nonpublic discussions that took place among them, thereby violating the Act.

To view the Court's denial of rehearing of Wolfe v. City of Fremont, click here.

To view the entire opinion of Wolfe v. Fremont, click here.

California Supreme Court Upholds Conviction in Medical Marijuana Case

On November 27, 2006, the California Supreme Court issued an opinion upholding an Orange County man's conviction for possession for sale of marijuana and transportation of marijuana. The opinion resolves a conflict in the California Court of Appeal regarding whether the Medical Marijuana Program legislation applies retroactively to cases pending at the time of its enactment. The Supreme Court held that the legislation applies retroactively and, because the defendant presented sufficient evidence to entitle him to a compassionate use instruction as an affirmative defense to the transportation charge, the trial court erred in refusing the instruction. Nevertheless, the Supreme Court held that the instructional error was harmless and reinstated the trial court conviction.

To read the opinion, click here.

Meyers Nave Files Amicus Brief on Behalf of LOCC in Yount v. County of Sacramento

Meyers Nave attorney Alan Cohen prepared an Amicus Brief on behalf of the League of California Cities (LOCC) in Yount v. County of Sacramento that was filed with the California Supreme Court on October 5, 2006. The Supreme Court will decide whether a defendant who pleads no contest to obstructing or resisting a police officer, where the factual record in support of the plea is vague, may subsequently sue the arresting officer for excessive use of force under 42 U.S.C Section 1983.

It is an important case because for over a decade, courts in California have held that a criminal defendant's conviction under Penal Code 148 (interfering with a police officer) bars him from later suing the police under Section 1983 or analogous state law for using excessive force during the course of that arrest. It did not matter whether the conviction was obtained by a plea of guilty, a plea of no contest, or a jury verdict. This is because the Supreme Court previously decided that to the extent a 1983 lawsuit would impugn a state court conviction, concepts of comity, equity and federalism preclude a civil lawsuit challenging matters which could have been determined in the state court criminal proceeding. Since the lawfulness of a police officers conduct is an element of a 148 charge, and since excessive force is not lawful, a conviction for 148 establishes that the force used to subdue the suspect was appropriate.

That changed when the Ninth Circuit decided Smith v. City of Hemet. In Smith, the court held that where the factual record supporting a plea does not specify which act of obstruction/resistance the accused plead to, the bar does not apply. While the courts in California are not bound by the decisions of the lower federal courts, even on federal constitutional issues, the Court of Appeal for the Third District, however, decided to follow the Ninth Circuit's analysis. In the amicus brief,  LOCC contends the decision contradicts the way courts traditionally analyze both officer misconduct and collateral attacks on final judgments. LOCC also asserts that following the Ninth Circuits analysis is against public policy because it will impose significant costs and significant administrative burdens on local agencies and their police officers.

To learn more about Yount v. County of Sacramento, click here.

To review the Court of Appeals decision in Yount v. County of Sacramento, click here.

To review the Ninth Circuit's decision in Smith v. City of Hemet, click here.

Independent Analysis of Proposition 90's Likely Impact

The California Redevelopment Association (CRA) has posted on its website a link to a report recently released by the LECG Group entitled "The Fiscal Impact of Proposition 90."  The CRA describes the report as the "first comprehensive report outlining Proposition 90's potential fiscal impact on California and its taxpayers."  The CRA lists the following key findings of the report:

Governor Signs New Laws to Better Protect Californians Against Sex Offenders

On September 20, 2006, Governor Schwarzenegger signed six bills into law in an effort to better protect Californians against sexual predators. Based on a press release from the Office of the Governor, the legislation will increase penalties for child rapists, child pornographers and Internet predators, creates a sex offender management board to help better track dangerous parolees, makes the use of GPS to monitor sex offenders a permanent program, requires registered sex offenders to disclose their registration status to prospective employers when applying for certain jobs and prohibits child molesters from employing minors. A summary of the bills follows:

Senate Bill 1128 by Senator Alquist (D-Santa Clara) enhances penalties and implements new laws for registered sex offenders, including punishing continuous child sexual abuse by an automatic 25-year-to-life prison sentence, making possession of pornography depicting children a felony in some cases, discouraging plea bargains for violent sex offenders, and including youth recreational facilities in addition to schools when restricting access for sex offenders. Among the bill's many provisions, it also requires every person required to register as a sex offender to be subject to assessment using the State-Authorized Risk Assessment Tool for Sex Offenders, a valuable tool widely recognized by experts and used by law enforcement.

Senate Bill 1178 by Senator Speier (D-Hillsborough) requires high-risk sex offenders (HRSOs) to be fitted with Global Positioning Satellite (GPS) devices and monitored by local law enforcement, making a successful pilot program a permanent tool for law enforcement to better track and catch sexual predators on parole who may be committing or planning subsequent crimes.

Assembly Bill 1015 by Assemblymembers Chu (D-Monterey Park) and Spitzer (R-Orange) creates the Sex Offender Management Board under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). The Board will bring together the stakeholders in the management of sex offenders to assess the current practices in managing adult sex offenders under supervision, identify best practices and make recommendations on how to implement these changes.

Assembly Bill 2263 by Assemblymember Spitzer (R-Orange) requires registered sex offenders, applying for jobs that involve physical contact with children, to disclose their registration status to prospective employers.

Assembly Bill 1683 by Assemblymember Shirley Horton (R-Chula Vista) requires the Department of Mental Health (DMH), when contracting with an entity that performs monitoring and supervision of a conditionally released sexually violent predator (SVP), to provide the court with a copy of the contract and proposed treatment plan. It permits the court to order DMH to provide copies of the terms and conditions of treatment (except confidential medical information) to specified local law enforcement officials. The bill also prohibits DMH from modifying the terms and conditions of a conditionally released SVP's treatment without approval of the court.

Assembly Bill 1900 by Assemblymember Lieu (D-Torrance) prohibits registered sex offenders who committed crimes against children under the age of 16 from employing minors or working near them. The bill closes a legal loophole by specifying that any person convicted of a sexual offense involving a child 15 years old or younger is prohibited from being an employer or an independent contractor where he or she would have direct, unaccompanied contact with minors on more than an occasional or incidental basis.

To read the entire press release regarding the Governor's recent actions regarding sex offenders, please visit:

For more information about these bills, please visit:

Governor Has Just Over Two Weeks to Sign/Veto Legislation Passed Prior to Legislature's Adjournment

The Governor has fifteen days left to sign or veto the bills passed by the Legislature prior to its adjournment on August 31. To date, a number of bills that are of interest to the California Special Districts Association (CSDA), have been signed into law by the Governor. The following summary of the bills was published by the CSDA Legislative Update.

Assembly Bill 3074 (Assembly Local Government Committee): This bill was signed into law on August 28, and reflects the Assembly Local Government Committee's annual omnibus legislation. It contained a number of technical amendments to various local government statutes.

Senate Bills 1122 & 1123 (Senate Local Government Committee): These bills were also signed into law by the Governor on August 28. These two bills are the Senate Local Government Committee's annual Validation Acts.

Senate Bill 1605 (Margett): Signed into law on August 28, this bill by Senator Bob Margett (R-Arcadia), involves public works contracts requiring the digging of trenches or other excavations that extend deeper than four feet below the surface. This bill requires the contractor to notify the local public entity in writing of any subsurface or latent physical conditions that differ from the conditions indicated by information about the site made available to bidders prior to the deadline for submitting bids.

Assembly Bill 2435 (Coto): This bill was signed into law on September 14. It was sponsored by the Santa Clara Valley Water District, and proposes numerous changes to the district's act.

Senate Bill 511 (Hollingsworth): This bill was signed by the Governor on September 14. The bill mandates that a county water authority prepare and submit, at its own expense, a report to the Legislature (not before January 1, 2008, and not later than January 1, 2009), pertaining to the implementation of the procedures governing the meetings and actions of standing committees of its board of directors that were adopted by that board in 2004 or 2005.

Senate Bill 1169 (Cox): This bill was also signed by the Governor on September 14. The bill amends the Municipal Utility District Act provisions relating to purchases of supplies.

For more information about these bills, please visit:

Court of Appeal Clarifies Limits on Extensions of Vesting Tentative Maps under Subdivision Map Act

In Ailanto Properties, Inc. v. City of Half Moon Bay, the First Appellate District clarified two issues of longstanding ambiguity under the Subdivision Map Act. First, the Court addressed the issue of the amount of time that the life of a vesting tentative map may be extended due to development moratoria. Government Code section 66452.6(b)(1) extends the life of a vesting tentative map for any period of time during which a development moratorium is in existence, but states that "the length of the moratorium shall not exceed five years." In this case, the City of Half Moon Bay approved a vesting tentative map for the developer's project, but subsequently imposed a sewer moratorium that lasted eight years. The Court held that the statute limits to five years the length of any moratorium-related tolling of the expiration of a tentative map.

The second issue under the Subdivision Map Act was whether the developer's filing of a phased final map with the city engineer constituted an effective filing entitling the developer to a 36-month extension of its vesting tentative map under Government Code section 66452.6(a)(1), where the phased final map did not conform to the requirements of the vesting tentative map and was not in a form that could be approved by the City. The Court held that section 66452.6(a)(1) was unambiguous, and that delivery of an admittedly nonconforming phased final map to the city engineer does not extend the life of the tentative map.

To read the decision, click here.

New Rules for Office Holder Gift Giving

New public official ethics rules go into effect today! On August 23, 2006, a new Fair Political Practices Commission (FPPC) gift regulation goes into effect.

Title 2, Division 6, Section 18944 states that “a single gift given to both a public official and candidate (hereinafter “official”) and one or more members of the official’s immediate family is a gift to the official for the full value of the gift.” While somewhat ambiguous, the rules also attempt to state that a gift is not a gift, unless it confers “personal benefit” on a recipient or a member of his/her family. Factors for consideration of when a gift is a gift include whether there is an existing working or social relationship between the official and gift-giver.

Comment: It appears that the FPPC is attempting to address complaints voiced by some public officials that the FPPC regulations on gifts were restricting or subjecting to scrutiny certain presents or tokens of respect to spouses/dependent children that clearly were not attempts to curry favor with the public official or improperly influence the political process (e.g., monthly flower or plant exchanges between fellow members of a gardening club that the spouse has participated in for years).

For the full text of the Rule, please click here

Public Agencies Need Not Disclose Competitive Proposals During Negotiations

In Michaelis, Montanari & Johnson v. Superior Court (June 22, 2006) Supreme Court No. S133464, the California Supreme Court considered when competitive proposals submitted to a public agency in response to a Request for Proposals ("RFP") for a public contract or lease must be disclosed under the California Public Records Act, Government Code section 6250 et seq. (the "Act"). At issue were responses submitted to an RFP for a lease of airport property at the Van Nuys Airport, part of Real Party in Interest Los Angeles World Airports.

In balancing the public interest in disclosure versus the public interest in nondisclosure under the "catch all" exemption to the Act, the Court agreed that there was a "legitimate and substantial" public interest in reviewing the agency's selection of a winning proposal. However, in a 7-0 decision the Supreme Court held that "public disclosure of such proposals properly may await conclusion of the agency's negotiation process, occurring before the agency's recommendation is finally approved by the awarding authority."

The decision can be found here.

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