April 2007

California's Supreme Court Rules on the Applicability of Pre-Proposition 35 Statutory Regulations

In Professional Engineers in California Government et al. v. Kempton (Professional Engineers), the California Supreme Court held that Proposition 35 repealed preexisting statutes regulating private contracting for architectural and engineering services. The Court also held that Proposition 35 did not invalidate certain procedures for selecting private architectural and engineering firms.

Proposition 35 (entitled the "Fair Compensation and Taxpayer Savings Act") was passed by California voters in 2000. The initiative added article XXII to the California Constitution and Chapter 10.1, commencing with section 4529.10, to the California Government Code. Proposition 35 removed existing restrictions on public agencies when contracting for private architectural and engineering services.

The Court also held that the "qualification based selection process" ("QBS procedure"), codified at California Government Code section 4525 et seq., is not inconsistent with Proposition 35 and may be used by public agencies in the post-Proposition 35 era. The QBS procedure requires a public agency to negotiate a contract with the best qualified firm for such services at compensation which is fair and reasonable. Although qualifications are the primary competitive measure by which contracts are awarded under the QBS procedure, the Court concluded that cost is not irrelevant and, therefore, not inconsistent with the intent of Proposition 35.

For more information about this case, please feel free to contact Ben Reyes or Elizabeth Pianca.

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

Court Rejects "Untimely" Challenge to City's Approval of DDA and Adoption of a Negative Declaration

In Citizens for a MegaPlex-Free Alameda v. City of Alameda, the court affirmed CEQA principles that once a CEQA document (here, a negative declaration) has been adopted, a notice of determination filed, and the statute of limitations has expired, subsequent discretionary approvals, such as design review, do not reopen the initial document to challenge. The Court further affirmed that a "project" for CEQA purposes refers to the underlying activity which may be subject to approval, not subsequent approvals that may be necessary for actual construction of the project.

U.S. Supreme Court Rules EPA May Regulate Greenhouse Gas Emissions

In a 5–4 decision in Massachusetts v. EPA, the United States Supreme Court ruled that the Environmental Protection Agency (EPA) has the authority to promulgate regulations of greenhouse gas emissions, including carbon dioxide from vehicles. The Court further held that that EPA’s failure to do so in response to a rulemaking petition, without providing sufficient explanation, was arbitrary and capricious, and in violation of law.

Meyers Nave Named One of California's Top Real Estate Law Firms

Meyers Nave has been named one of California's top real estate law firms in a special report published by California Real Estate Journal (CREJ). The results were based on a 2007 CREJ survey which ranked law firms by the number of real estate attorneys, partners, real estate practice areas and specialities, and recent California projects and/or cases.

Court Rejects Certification of EIR for Inadequate Project Description, Baseline Assumptions, and Improperly Deferred Mitigation

In San Joaquin Raptor Rescue Center v. County of Merced, the Court of Appeal ordered that the County’s certification of an EIR for expansion of mine operations be vacated, finding that the EIR’s project description and baseline assumptions were inadequate, and that the EIR improperly deferred mitigation by allowing for the future development of a land management plan to address biological impacts.

Certification of EIR Overturned for Failure to Mitigate Significant Impacts and Use of Improper Baseline

The Court of Appeal reversed the trial court’s denial of a writ in Woodward Park Homeowners Assn. v. City of Fresno, finding that the City violated CEQA in certifying an EIR while failing to impose mitigation measures for significant freeway impacts. The EIR was further inadequate for using, as the baseline for environmental review, a hypothetical development that could be approved under the current zoning, rather than the existing physical conditions of the site.

Impacts of Obesity in the Workplace Reviewed in Study

Attorney Authors: 

The San Francisco Chronicle recently ran an article describing the results of a study that reviewed the impacts of obesity in the workplace. Among other things the article asserts that employees classified as obese use more sick days and file more workers' compensation claims than employees that are not characterized as obese.

Court of Appeals Upholds Federal Equal Protection Clause in Public Contracting Discrimination Case

On April 18, 2007, the Court of Appeal, First Appellate District, in Coral Construction, Inc. v. City and County of San Francisco ruled that despite Proposition 209, if the City has evidence of long-standing and pervasive discrimination by both city employees and contractors resulting in the exclusion of minority and women owned firms in public contracting, such evidence may justify the City's affirmative action program for minority and female contractors. Proposition 209 was adopted by California voters more than 10 years ago prohibiting state and local governments from discriminating against, or granting preferential treatment to "any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting."

Meyers Nave attorney Mara Rosales, a principal in the firm's the Airport and Public Contracting practices, assisted the City and County of San Francisco in defending its Minority/Women Business Utilization Ordinance against a challenge alleging the ordinance violated California's Proposition 209. The Court agreed with Ms. Rosales' legal theory that the U.S. Constitution's guarantee of equal protection requires the City to grant narrowly tailored bidding preferences to minority and women contractors to eliminate the effects of demonstrated discrimination against them in public contracting.

The Court ruled 3-0 on the constitutional duty issue, sending a clear message to all local governments statewide that their duties and obligations under the Constitution to eliminate discrimination in public contracting does not stop with Proposition 209. Notably, Justice Timothy Reardon stated that "[t]he federal equal protection clause is the last word.''  This ruling is significant because if the City is able to show a constitutional violation (e.g. evidence of long-standing and pervasive discrimination against minority and women contractors by the City or its contractors) the equal protection clause of the U.S. Constitution would override Proposition 209's ban on race and gender preferences in public contracting and allow a race or gender specific remedy.

For complete decision, go to Download a1078031_2.pdf Coral Construction decision.pdf

CRA Basic Affordable Housing Workshop

Please join Meyers Nave attorneys Sue Bloch, Ruben Duran, Michelle Sexton and Keith Nagayama at the May 15-16, 2007 CRA Basic Affordable Housing workshop at the Ontario Convention Center.

Also joining them:

David Paul Rosen & Associates (DRA)

David Rosen, Ph.D., Principal

Nora Lake Brown, Principal

Michael Pyatok Architects

Mike Pyatok, Principal

Laura Simpson, Housing and Community Development Manager, City of Vallejo

For more information, please contact California Redevelopment Association or send an e-mail to info@meyersnave.com.

Supreme Court Rules that Police Car Chases Do Not Violate the Fourth Amendment

The Supreme Court has ruled in Scott v. Harris, No. 05-1631, 2007 WL 1237851 (U.S. April 30, 2007) that a police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. The case involved a Section 1983 action brought against a county and its police officers alleging the use of excessive force in connection with a high-speed chase. The 19-year old motorist claimed that his Fourth Amendment rights had been violated.

Harris, the driver, initially came to the attention of police for driving 73 miles/hour in a 55 miles/hour zone. Harris failed to pull over when followed by a deputy and a chase ensued, with Harris reaching speeds of 85/mph. Scott, a police officer, joined the pursuit, but was not told that the chase was initiated by a speeding infraction. Scott terminated the ten-mile chase by ramming Harris's vehicle. Harris was rendered a paraplegic when his vehicle went off the road and crashed. He claimed that Scott's actions constituted "deadly force" which was not justified in the circumstances.

In an 8-1 decision, the Supreme Court disagreed. The Court included a videotape of the chase with its decision. Justice Scalia referred to the chase video as "the scariest chase I ever saw since 'The French Connection,'" and stated "We are happy to allow the videotape to speak for itself."  Finding that the record blatantly contradicted the plaintiff's version of events, the Court ruled that the car chase that Harris initiated posed a substantial and immediate risk of serious physical injury to others, and that Scott's attempt to terminate the chase by forcing Harris off the road was reasonable. Accordingly, Scott was entitled to summary judgment on qualified immunity grounds. The Court noted that, at the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there was a "genuine" dispute as to those facts.

County Ordinance Requiring Use of Local Public Entities Does Not Violate the Commerce Clause

In a ruling issued today, the U.S. Supreme Court found that county ordinances requiring that solid waste in two counties be processed at a publicly-owned transfer station did not discriminate against interstate commerce. The case, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, arose from two separate U.S. Court of Appeals Second Circuit decisions in which the Court ruled that:

1) the counties' ordinances requiring that solid waste in the two counties be processed at a publicly-owned transfer station did not discriminate against interstate commerce (United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Auth., 261 F.3d 245 2d Cir. 2001); and

2) the counties' ordinances were valid under the Pike balancing test (United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Auth., 438 F.3d 150 2d Cir. 2005).

Oneida and Herkimer County ordinances required that the garbage generated by local households and businesses within the counties be delivered to one of several waste processing facilities owned by the Oneida-Herkimer Solid Waste Management Authority, a public corporation, thereby preventing the garbage from being processed at non-local facilities. The Authority charged a per-ton tipping fee for receiving waste, a fee that was apparently significantly higher than the fees charged on the open market elsewhere in the state. However, the counties did not exclude private commercial entities from other aspects of the local market for waste disposal: the ordinances expressly allowed any licensed private entity, whether local or non-local, to collect solid wastes from area businesses and households for delivery to the Authority's processing facilities. Through an open bidding process, the Authority periodically selected a private hauler to transport processed wastes/recyclables from its facilities for delivery to other locations.

Several solid waste management companies and an association representing their interests brought a Section 1983 action against the counties and the Authority, claiming that the ordinances regulating the collection, processing, transfer, and disposal of all solid waste within the counties violated the Commerce Clause. They specifically stated that as long as private entities were permitted to collect garbage from customers, they could not be required to deliver that waste to an in-state facility.

On appeal, the Supreme Court affirmed the Second Circuit's decisions and upheld the ordinances noting that this case presented "flow control ordinances quite similar to the one invalidated in [C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994)]. The difference being that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. Applying the Pike test, the Court first pointed out that, after years of discovery, no disparate impact on out-of-state, as opposed to in-state businesses, could be found regarding the ordinances.