Client Alerts
The California state legislature and courts as well as local governments are continuously changing the legal landscape. Staying abreast of new laws, regulations and other legal developments, and analyzing their impact on local governments is what makes our attorneys some of the best in the state. In addition, we write timely alerts to keep our clients informed of developing legal news and analysis.
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Some of our most recent alerts are presented below grouped by their practice area. Older alerts are available in the Archives, which can be accessed via the links in the left column.
Education Law
Appellate Court Explains "Balancing Test" Under California Public Records Act
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.
First Amendment
Appellate Court Holds that Due Process Prevents Partners From the Same Law Firm From Serving as Adviser and Advocate on Contested Hearings
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.
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
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.
Ninth Circuit Grants Panel Rehearing Regarding Constitutionality of Rules of Decorum for City Council Meetings
On Feb. 25, 2013, the Ninth Circuit Court of Appeals granted a request by plaintiff-appellant Acosta for a panel rehearing of its decision last September in Acosta v. City of Costa Mesa (2012) 694 F.3d 960 (Acosta), which concerns the constitutionality of an ordinance governing rules of decorum at city council meetings.
The Ninth Circuit order went on to withdraw the prior published opinion; it can no longer be cited as precedent. The petition for rehearing en banc was denied as moot. No schedule was provided for briefing or argument.
Labor and Employment
Ninth Circuit Permits Plaintiffs One More Chance to Amend Retiree Healthcare Lawsuit
The Ninth Circuit has reversed the District Court’s dismissal of a lawsuit brought by retired employees against their former employer seeking to avoid the reduction of retiree healthcare benefits. In Sonoma County Ass’n of Retired Employees v. Sonoma County, No. 10-17873 (9th Cir. Feb. 25, 2013), the Ninth Circuit cited and relied on the California Supreme Court’s recent holding that a public agency may form a contract with implied terms with its employees under specified circumstances. (See Retired Employees Ass’n of Orange Cnty., Inc. v. Cnty. of Orange (REAOC II), 52 Cal. 4th 1171, 1176 (2011))
U.S. Supreme Court to Determine the Meaning of "Changing Clothes"
The U.S. Supreme Court has agreed to hear a private sector "donning and doffing" case. In Sandifer v. United States Steel, the plaintiff steel factory employees assert that the FLSA requires they be paid for time spent changing into and out of protective gear, specifically "flame retardant pants and jacket, work gloves, metatarsal boots, a hard hat, safety glasses, ear plugs, and a snood." (678 F.3d 590 (2012).) Section 203(o) of the FLSA (found at 29 U.S.C. § 203(o)) specifically provides that an employer is not required to compensate employees for time spent "changing clothes or washing at the beginning or end of each workday" unless required by the "express terms or by custom or practice" under a collective bargaining agreement. The issue is whether the type of protective gear at issue in the case constitutes clothing under Section 203(o). Although Sandifer does not involve police officers or other public sector workers, the Court's decision could modify the state of the law in regards to all employees, including those in the public sector.
Court Approves Pregnancy Discrimination Action Under FEHA Even After Exhaustion of Required PDLL Leave
In a case of first impression, the Court of Appeal (Second District) found that an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), may nevertheless state a cause of action for discrimination under the California Fair Employment and Housing Act (FEHA). (Sanchez v. Swissport, Inc., 2013 Cal. App. LEXIS 131 (Cal. Ct. App. 2d Dist. Feb. 21, 2013).)
Plaintiff Ana Sanchez was diagnosed early in her first trimester with a high-risk pregnancy, requiring bedrest through her delivery date. Sanchez requested and was granted a temporary leave of absence. Sanchez proceeded to exhaust all of her vacation time in addition to the time provided under the PDLL (for a total of more than 19 weeks of leave). When that leave ran out, however, she still had more than three months before her scheduled delivery date. Because she was unable to return to work when she ran out of leave, Swissport fired her.
Land Use
California Supreme Court Holds Local Governments May Ban Medical Marijuana Dispensaries
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.
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.
Municipal and Special District Law
Appellate Court Clarifies Meaning of "Regularly Scheduled Election" for Placement of General Tax Measures under Proposition 218
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?
The Sixth Appellate District recently provided its answer in Silicon Valley Taxpayers Assn. v. Garner (H038971), holding that a "regularly scheduled general election for members of the legislative body" is a type of election. In the case, the County of Santa Clara held an election for the Board of Supervisors in June 2012. Candidates for two seats ran unopposed, and the third received a majority of votes. A runoff election in November 2012 was therefore unnecessary. The Board of Supervisors proceeded to place a general tax measure on the November 2012 ballot, even though no candidate for the Board would stand for election. Plaintiffs alleged that Article XIIIC, section 2(b) requires a candidate to appear on the ballot with general tax measures. The court disagreed.
Court of Appeal Makes It More Difficult for Local Agencies Other than Cities to Obtain Voter Approval of Parcel Taxes
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.
Superior Court Rules CPRA Requires Disclosure of Private Emails and Text Messages
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.
The decision, although not binding in other jurisdictions, sends a strong message that attitudes may be changing on exactly what amounts to a "public record" requiring disclosure under the Act. The ruling requires emails, voicemails, and text messages sent and received on the private electronic devices of San Jose City officials to be disclosed-if the messages relate to City business. The case, Smith v. City of San Jose, et al. (Case No. 1-09-CV-150427), stems from an individual's 2009 request to the City of San Jose for records related to a redevelopment project.
