Thursday, January 21, 2010, 02:14:32 PM
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 city'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.
City of Ontario police sergeant Jeff Quon used his city-issued pager to send and receive hundreds of personal text messages. He incurred overage charges on the city's wireless plan that prompted the city to audit his text messages to determine if they were related to city business. Quon argued before the Ninth Circuit that his department's informal practice of allowing officers to exceed their character limits if they paid overage charges nullified the city's written policy that employees had no expectation of privacy in communications sent on city-issued equipment.
The City of Ontario subsequently appealed the case to the Supreme Court, and the League of California Cities (LOCC) issued a brief in support of the appeal, as described on the LOCC Web site.
It is anticipated that the Supreme Court will issue its ruling by the end of June.
Tuesday, December 29, 2009, 03:41:03 PM
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.
Friday, October 30, 2009, 05:49:39 PM
California Supreme Court denies request for review, depublication of appellate decision regarding application of inclusionary housing ordinance to rental developments
The California Supreme Court denied a petition for review and depublication of the Second District's decision in Palmer/Sixth Street Properties v. City of Los Angeles. The appellate court decision was significant in holding that Los Angeles was preempted, by a provision of the state's Costa-Hawkins Act, from enforcing its inclusionary housing ordinance against a development of rental apartments, The state provision in question, Civil Code, Section 1954.53(a), authorizes landlords to "establish the initial rental rate for a dwelling or unit." The appellate court had found that the local requirement to reserve a specified percentage of the rental units as low income units, conflicted with the state provision. The local ordinance was not saved by its "in-lieu" fee, which the appellate court found to be "inextricably intertwined with the invalid portion" of the ordinance.
Monday, October 12, 2009, 10:36:04 AM
Court of Appeal Revokes City's Anti-SLAPP Protection in Case Where Plaintiff Claimed First Amendment Protections
The California Court of Appeal, Sixth Appellate District, recently reversed a trial court judgment entered in favor of the City of Morgan Hill pursuant to California's anti-SLAPP statute (Code of Civil Procedure section 425.16.) SLAPP is an acronym for "strategic lawsuit against public participation," and the anti-SLAPP statute is designed to allow a defendant to gain early dismissal of a lawsuit that a court determines is designed to chill the exercise of First Amendment rights.
In the case, Tichinin v. City of Morgan Hill, the Morgan Hill City Council adopted a resolution that condemned a local attorney for hiring a private investigator to conduct surveillance of the City Manager and then denying that he had done so. In response to the resolution, the plaintiff filed an action against the City, alleging a violation of his constitutional rights. From the beginning, the case garnered media attention, involving as it did rumors of an affair between city employees and private surveillance of public officials.
In reversing the trial court's judgment in favor the City under the anti-SLAPP statute, the Court of Appeal acknowledged that the plaintiff's lawsuit was based on acts by the City that qualify for protection under the anti-SLAPP statute. However, the Court also concluded that the plaintiff had made a prima facie showing that he himself was engaged in conduct protected by the First Amendment, that the City took an adverse action in response to his conduct with the intent to retaliate against him, and that the City's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct.
Read the Court's opinion here and check out the San Francisco Chronicle's summary of the interesting circumstances of the case here.
Friday, June 5, 2009, 08:45:00 AM
California Supreme Court Upholds Existing Standards for Public Expenditures on Local Ballot Measures
The Supreme Court's recent decision in Vargas v. City of Salinas reaffirms the Court's holding in Stanson v. Mott (1976) 17 Cal.3d 206, and maintains existing limitations on the expenditure of public funds for materials and activities related to ballot measures. Although the Court rejected the adoption of a proposed bright-line test that would have permitted public expenditures for all communications that were not express advocacy, it provided some useful new general guidance beyond that in Stanson. It also provided helpful specific examples both of acceptable publicly funded communications--by approving the specific expenditures by the City of Salinas at issue in the lawsuit--and of unacceptable communications --by expressly disapproving communications from other cases and from a recent California election. Read more.
Monday, May 4, 2009, 08:10:18 AM
Court of Appeal Finds Binding Interest Arbitration Statute Unconstitutional
On April 24, 2009, the First Appellate District ruled in Sonoma County v. Superior Court (Sonoma County Law Enforcement Association) that SB440, a labor negotiations interest arbitration statute applicable to public safety unions, violated both Article XI, Section 1(b) and Article XI, Section 11(a) of the California Constitution. This was the first Court of Appeal decision to rule on the constitutionality of SB440 and is an important decision regarding how California public agencies may resolve negotiation impasses with their public safety unions. Read more here.
Monday, September 22, 2008, 08:23:27 AM
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.
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Sunday, September 21, 2008, 02:12:54 PM
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.
Friday, September 5, 2008, 05:22:42 PM
First Appellate District Rejects City’s Lease of Public Street Located on Reclaimed Tidelands for Private Use Without Notice and Comment
In Zack’s Inc. v. City of Sausalito, First Appellate District Case Nos. A118244, A118723 (August 11, 2008), the Court of Appeal for the First Appellate District reversed a trial court's judgment, siding with the Plaintiff in a nuisance challenge to Sausalito’s practice of leasing a section of a public street located on reclaimed tidelands for use as a private boat storage facility. The plaintiff had alleged that the storage of boats constituted a nuisance per se, as it interfered with traffic and parking, and effectively prevented the use of the plaintiff’s warehouse as a restaurant.
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Tuesday, April 15, 2008, 04:10:25 PM
Court Holds Prop 59 Does Not Abrogate the Common Law Mental Processes Principle
In Sutter's Place v. Superior Court of Santa Clara County, the Court of Appeals for the Sixth District upheld a trial court discovery order protecting specified documents from disclosure on the ground that discovery would violate the common law mental processes principle which precludes judicial inquiry into the motivation or mental processes of legislators in enacting legislation. Petitioner Sutter's Place ("Petitioner") sought discovery of documents reflecting the motives and thoughts process of the City of San Jose Mayor and/or City Council relating to the adoption of an ordinance which Petitioner was challenging. Petitioner's challenged the trial court's order denying discovery of specified documents on the grounds that Proposition 59 abrogated the common law mental processes principle.
Proposition 59 (California Constitution, article I, section 3) amended the California Constitution to include the public right to access public records. It is considered by some to be the constitutionalization of the California Public Records Act ("CPRA"). The Court found that under the CPRA, public records to which the mental processes principle applies are exempt from disclosure in accordance with California Government Code Section 6254(k) which exempts from disclosure public records whose disclosure is prohibited pursuant to federal or state law, including the common law and constitutional separation-of-powers principles, such as the mental processes principle. The Court held that there is no inherent inconsistency between the application of Proposition 59 and the mental processes principle which precludes their concurrent operation and there is no evidence of an intent by the voters to supersede, override, or alter the operation of the mental processes principle under Proposition 59.
