January 2013

U.S. Supreme Court Reverses Ninth Circuit Ruling on Municipal Storm Water Discharges

Good news for owners and operators of municipal separate storm sewer systems, also known as "MS4s."  In Los Angeles County Flood Control District v. Natural Resources Defense Council, the U.S. Supreme Court held that storm water flowing from an improved, channelized portion of a navigable waterway into an unimproved, natural portion of the same waterway does not qualify as a "discharge of a pollutant" under the Clean Water Act.  The Ninth Circuit had ruled to the contrary, that the flow of pollutants from channelized portions of two rivers into what it termed "naturally occurring portions of those rivers" was the point where a "discharge of a pollutant" occurred.  In a five-page opinion authored by Justice Ginsburg, the Supreme Court unanimously reversed the Ninth Circuit's decision as wholly inconsistent with the rule announced in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), which held that the flow of polluted water between two parts of the same waterway does not constitute a "discharge of a pollutant" under the Clean Water Act.

To read more about this case, follow this link.

Library Leafleting Policies Struck Down In Court Of Appeal

A recent challenge to broad policies regulating leafleting at the municipal library of the City of Redding saw a number of those policies struck down on First Amendment grounds.  In response to leafleting activity at the library, the library established a number of controls over leafleting.  The library designated a “free speech area” near the front entrance where leafleting could occur; prohibited all leafleting in the library parking lot; prohibited all leafleting involving solicitation of funds; required leafleting reservations at least 72 hours in advance; and prohibited any “offensively coarse utterance, gesture, or display, or… abusive language toward another person.”

San Diego to Stop Prosecuting Pot Dispensaries

San Diego Mayor Bob Filner has ordered the City Attorney to stop prosecuting a dozen pending cases against medical marijuana dispensaries, and for the city to temporarily halt any prosecutions until new regulations are put in place.  Filner made public his support for the use of medical marijuana during his election campaign.  His directive only impacts code enforcement, and does not affect cases brought by the San Diego County District Attorney’s Office or by federal authorities.  For more information, click here.

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.

San Bernardino Shelves Eminent Domain Mortgage Plan

Late last week, the County of San Bernardino and two of its cities abandoned a proposal to use eminent domain (the power to condemn) to seize troubled mortgages and write down debt for homeowners.  San Bernardino was among the hardest hit by the housing bust with tens of thousands of homeowners in underwater mortgages.  The decision strikes a blow to an idea that garnered national attention as a potential, if controversial and some argue unconstitutional, solution to the mortgage crisis.  Criticism of the plan came from the mortgage industry, Wall Street groups and bankers, who argued that it would spark lawsuits, higher interest rates and a tightened market for borrowers.  Eminent domain is used to seize land for public projects and public use – such as roads, utilities and transit systems.  The San Bernardino County effort would have been the first widespread attempt at using eminent domain to seize residential mortgages.   The City of Chicago rejected a similar idea last year.  The idea was proposed by the firm of Mortgage Resolution Partners in San Francisco.  The group is still talking with more than 30 other jurisdictions across the country.  Representatives of homeowners in need were disappointed in the County’s decision noting a creative solution to the mortgage crisis must be found soon.        

Transit Unions Seek Exemption from PEPRA

California public transit unions are supporting Assembly Bill 160 which would exempt their members from the recently-adopted Public Employees’ Pension Reform Act (PEPRA). Under the bill, introduced by Assemblyman Luis Alejo on January 22nd,  thousands of transit employees would be exempt from the PEPRA.  PEPRA became law in September 2012.  It requires increased cost-sharing of pension contributions and reduced pension benefit formulas for new members hired on or after January 1, 2013 (and provides for some changes for existing members, which are not scheduled to take effect  until 2018).

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.