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.

Client e-Alerts are emailed to our clients, and they can also be viewed on our website.  If you are interested in receiving our Client Alerts via email, please complete the subscription information in the left column.
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.

Environmental Law

Ninth Circuit Expands Judicial Scrutiny of CERCLA Settlement

August 8, 2014, Gregory J. Newmark, Lauren E. Quint

The Ninth Circuit recently issued an opinion that emphasizes the obligation of district courts to independently review the adequacy of proposed consent decrees under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA").  In Arizona v. City of Tucson, ---F.3d--- (9th Cir. 2014), 2014 WL 3765569, eighteen proposed consent decrees between the State of Arizona and de minimis settling parties were remanded because the district court did not compare each party's estimated liability with its settlement amount or explain why the settlements were fair, reasonable, and consistent with CERCLA's objectives.  According to the Ninth Circuit, the district court afforded undue deference to the Arizona Department of Environmental Quality's conclusions and methodology rather than conducting its own in-depth review of the evidence.  In a 2-1 decision, the majority held that state agencies with environmental expertise are entitled to "some deference" regarding the environmental issues underlying a consent decree.  However, the state agency's interpretation of CERCLA's mandate is not entitled to deference because the state agency is not charged with enforcing CERCLA. 

In a dissent, Judge Consuelo Callahan stated that the majority ignores "the critical role that Congress envisioned for the states under CERCLA and expands the level of scrutiny required for state-sponsored CERCLA settlements.... The decision will ultimately make it more difficult for states to...remediat[e] the numerous polluted sites that blight our nation."  Judge Callahan asserted that state environmental agencies, like U.S. EPA, should be entitled to significant deference in light of the agencies' expertise, CERCLA's policy encouraging settlements, and a recognition that settlements are generally negotiated at arms-length by a party acting in the public interest.

The majority therefore established a standard of review for district court consent decree approval.  A district court must "explain in a reasoned disposition why the evidence indicates that the consent decrees are procedurally and substantively 'fair, reasonable, and consistent with CERCLA's objectives.'"  To fulfill this responsibility, the district court must, inter alia, engage in a comparative analysis of the proposed settlement amounts and find that liability is properly apportioned among the settling parties based upon an acceptable measure of comparative fault.  Failure to perform this comparative analysis is an abuse of discretion.

The question now becomes whether expanding the level of judicial scrutiny for CERCLA consent decrees will discourage early settlement, especially in the case of de minimis parties.  If other parties oppose entry of the consent decree, it may be challenging for plaintiff state agencies and settling parties to efficiently and economically meet the Ninth Circuit's standard.

First Amendment

Anticipated Supreme Court Ruling in First Amendment Sign Ordinance Case

October 22, 2014, Deborah J. Fox, Dawn McIntosh, Margaret Rosequist

The Supreme Court of the United States granted Writ of Certiorari in the Ninth Circuit’s Reed v. Town of Gilbert (Reed II) case. The Ninth Circuit’s Reed II ruling considered a municipal sign ordinance that, among other things, imposed different limitations on signs depending on whether the sign was classified as a “temporary directional sign,” a “political sign” or an “ideological” sign.  Despite the fact that the sign ordinance drew distinctions based on the subject matter of the speech involved, the Ninth Circuit found that the regulation’s distinctions were content-neutral because the distinctions were not based on a preference for some messages over others. The Ninth Circuit’s ruling in Reed II was a departure from its previous precedent regarding the test for content-neutrality. While Reed II may have been seen by some as a welcome outcome for municipalities as it allowed potentially more latitude in distinctions and restrictions in sign regulations, its analysis does not appear to comport with previous precedent so left an already nuanced area of First Amendment law even more opaque. 

Ninth Circuit Upholds Reasonable Restrictions on Solicitation of Funds at LAX

August 27, 2014, Jennifer E. Faught, Margaret Rosequist

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.   

Land Use

First District Re-Affirms Public Agency's Ability to Recover Administrative Record Preparation Costs Even Where the Petitioner Elects to Prepare the Record

September 18, 2014, Edward Grutzmacher, Amrit S. Kulkarni

On September 16, in Coalition for Adequate Review v. City and County of San Francisco, the First District held that a public agency is not automatically barred from recovering administrative record preparation costs under the California Environmental Quality Act ("CEQA") even though the Petitioner has elected to prepare the administrative record.  The Court rejected arguments by the petitioners that their election to prepare the record immunized them from San Francisco's record preparation costs and the argument that high agency record preparation costs would "chill" the filing of CEQA petitions.

Supreme Court Holds Projects Approved By Council-Adopted Initiative Are Exempt From CEQA

August 8, 2014, Edward Grutzmacher, Amrit S. Kulkarni

The California Supreme Court ruled yesterday in Tuolomne Jobs & Small Business Alliance v. Superior Court (Walmart) that when a city council receives a voter initiative petition to approve a project and decides to adopt the initiative measure without alteration, its decision is not subject to the requirements of the California Environmental Quality Act (“CEQA”), and therefore does not require an Environmental Impact Report or other CEQA document for the action proposed in the initiative measure.

Municipal and Special District Law

New Legislation Revamps Design Build Procurement Requirements For All Public Projects Throughout The State

October 27, 2014, Eric S. Casher, Benjamin T. Reyes

On September 30, 2014, Governor Jerry Brown signed in to law Senate Bill 785 which, among other things, updates and rewrites the statutory law relating to design-build procurement for public projects throughout the State.  The new law goes in to effect on January 1, 2015.

Senate Bill 785 repeals several design-build statutes that apply to specific agencies in favor of one primary set of design-build procurement standards for all State agencies.  In addition, the new law adds a new chapter to the Public Contract Code (Section 22160 et seq.) which applies to design-build procurement for local agencies and municipalities.  Local agencies are now required to first prepare and issue a request for qualifications in order to pre-qualify a short-list of design build entities who, if qualified, will be invited to bid on the project. 

New Legislation to Increase Local Authority over Massage Establishments

September 22, 2014, Kristopher Kokotaylo, Jason Rosenberg

On September 18, 2014, Governor Brown signed Assembly Bill 1147 ("AB 1147") into law. AB 1147 changes numerous provisions of the Massage Therapy Act, effective January 1, 2015. Current law restricts local control over massage therapy businesses that employ therapists and practitioners that have been certified by the California Massage Therapy Council ("CAMTC"). AB 1147 restores local regulatory authority over these businesses.

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