League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track

San Diego Convention Center, San Diego

General Municipal Litigation Update

Thursday, September 6, 2012 General Session; 4:15 – 5:30 p.m.

Wynne S. Furth, Attorney at Law

League of California Cities 2012 League of California Cities Annual Conference City Attorneys’ Track

San Diego Convention Center, San Diego

City Attorney's Department, Annual Conference League of California Cities

September 2012 Wynne Furth

GENERAL MUNICIPAL LITIGATION

UPDATE

For Cases Reported Between May 1, 2012 and July 31, 2012

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Table of Cases Alpha Delta Chi-Delta Chapter v. Reed 684 F. 3d 790, petition for cert. denied………………………………………………………. .1 American Coatings Association v. South Coast Air Quality District 54 Cal. 4th 446……………………………………………………………………………….. 12 American Trucking Associations, Inc. v. City of Los Angeles 660 F. 3d 384…………………………………….…………………………………………… 1

Armour v. City of Indianapolis, Indiana 132 S. Ct. 2073…………………………………………………….…………………………. 7 Assessor of County of Santa Barbara v. Assessment Appeals Board No. 1 (Rancho Goleta Lakeside Mobileers, Inc.) Petition for rehearing granted…………………………………………………………………6 Association of Irritated Residents v. California Air Resources Board 206 Cal. App. 4th 1487……………………………………………………………………….13 City of Chula Vista v. Gutierrez 207 Cal. App. 4th 681……………………………………………………………………...…12 City of Colton v. Singletary 206 Cal. App. 4th 751………………………………………………………………………...15 City of Maywood v. Los Angeles Unified School District 207 Cal. App. 4th 1075..............................................................................................................15 City of Palmdale v. State Board of Equalization 206 Cal. App. 4th 329………………………………………………………………………...14 Consolidated Irrigation District v. Superior Court (City of Selma) 205 Cal. App. 4th 697…………………..…………...…………………………...…………….4 Goldstone v. County of Santa Cruz 207 Cal. App. 4th 1038…………………………………………………………………...…..12 Griffith v. City of Santa Cruz 207 Cal. App. 4th 1318.............................................................................................................12 Haynes v. City and County of San Francisco ___ F. 3d ___...........................................................................................................................15

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Housing Partners, Inc. I v. Duncan 206 Cal. App. 4th 1335…………………………………………………………………………9 Long Beach Police Officers Association v. City of Long Beach 203 Cal. App. 4th 292, petition for review granted………………...………………….………5 Kaahumanu v. State of Hawaii 682 F. 3d 789…………………………………………………………………………………10 Marsh v. County of San Diego 680 F. 3d 1148………………………………………………………………….…………….. 5 Michael Leslie Productions, Inc. v. City of Los Angeles 207 Cal. App. 4th 10....................................................................................................................9 National Federation of Independent Business v. Sebelius 132 S. Ct. 2566……………………………………………………………………………...…1 Nordyke v. King 681 F.3d 1041…………………………………………………………………………….…..11 Patel v. City of Los Angeles ___ F.3d __.................................................................................................................................6 The Press Democrat v. Sonoma County Herald Recorder 207 Cal. App. 4th 578…………………………………………………………………………..2

Ralphs Grocery Company v. Missionary Church of Disciples of Christ Petition for review granted……...............................................................................................12

State Building and Construction Trades Council of California, AFL-CIO v. City of Vista 54 Cal. 4th 547…………………………………………………………………………………6

Opinions of the California Attorney General

No. 10-902 (McLeod)………………………………………………………………………….1 No. 11-401 (Gaines)……………………………………………………………………...……2 No. 12-301 (de Leon)…………………………………………………….…………………….1

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General Municipal Law Litigation Update

(excluding land use, eminent domain, personnel, medical marijuana, red-light camera, civil rights and tort cases)

CHAPTER 1. NATURE OF MUNICIPAL CORPORATIONS

I. D. CONSTITUTIONAL LIMITS ON MUNICIPAL AUTHORITY §1.33 Federal Preemption Doctrine UPDATE: American Trucking Associations, Inc. v. City of Los Angeles 660 F.3d 384 (9th Cir. 2011) - Petition for writ of certiorari filed December 22, 2011. [Harbor air-pollution regulations.] §1.36 Preemption Due to Conflict with State General Law Police department may establish guidelines allowing impound of vehicle seized under “community caretaking” procedures for less than thirty days. Opinion of Kamala D. Harris, Attorney General (No. 12-301 – de Leon) May 3, 2012 Vehicle Code 22651(p) and 124602.6(a)(1) both authorize impounding of vehicles when the driver cannot legally remove the vehicle from the street. One specifies a minimum thirty-day impoundment for unlicensed drivers, while the other sets no minimum. Los Angeles adopted a policy permitting early release for “minor” problems upon showing proof of license, current registration, et cetera. The Attorney General concludes this is lawful. Both statutes grant discretionary authority to local police; one is not a special statute governing a more general one. The Legislative Counsel reached an inconsistent conclusion on February 11, 2012 in its (unpublished) opinion No. 1200017. §1.64 Free Exercise Clause UPDATE: Alpha Delta Chi-Delta Chapter v. Reed 648 F. 3d 790 (9th Cir. 2011) Cert. denied, March 19, 2012 [Public university may deny official recognition to student .clubs that limit participation based on religion.] I. F. INTERGOVERNMENTAL RELATIONS §1.89 Power Reserved for States under Tenth Amendment Federal government may not require States to expand existing Medicaid program in order to keep federal funding. National Federation of Independent Business v. Sebelius United States Supreme Court, June 28, 2012 132 S. Ct. 2566

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The Patient Protection and Affordable Care Act of 2010 was intended to reduce the number of United State’s residents without medical insurance. It requires most Americans to obtain “minimum essential” health insurance coverage and it requires insurers to sell policies to almost everyone (“guaranteed issuance”). In 2014, those who do not have this minimal coverage will be required to make a “shared responsibility payment” to the Internal Revenue when filing their tax returns. Numerous organizations sued to challenge this “individual mandate.” They lost. Medicaid offers federal funds to the states to assist in providing medical care for the needy. All 50 states participate in the program. The Affordable Care Act requires that states enlarge the pool of those eligible to participate or face reductions in the federal subventions. This expansion is an integral part of the financing plan for the Affordable Care Act. Twenty-six states challenged the constitutionality of this “Medicaid expansion.” They won. A divided Supreme Court held: The majority: a. (Roberts, Breyer, Kagan) Congress has the power to tax and spend money for the general Welfare. One way to do this is to make grants to the States. Conditioning these grants greatly expands federal power and can be a threat to federalism. Furthermore, when States carry out federal programs it is harder for citizens to hold the proper elected officials accountable. A federal program may appear to be a State program. Conditions on grants must be unambiguous; they must relate to the program being funded; they may not induce States to engage in unconstitutional activities. Most importantly, conditions must be inducements, not compulsions. An example of a permissible inducement was the federal law reducing highway funds by 5% to States that refused to raise the minimum drinking age to 21. [South Dakota v. Dole, 438 U. S. 203 (1987).] Congress, by expanding the Medicaid program from one covering certain classes of poor people (the elderly, disabled, children, or and those carrying for their children) to the coverage of poor people generally, created a new program. A second ground for striking down the provision is that Medicaid subventions are so big that refusal is not a realistic option. (Medicaid subventions are typically one-fifth of each state’s budget.) However, the provision is severable. b. (Scalia, Kennedy, Thomas, Alito) The provision is not severable and the entire Act should be struck down. It is central to the funding of the Act. The dissent: (Ginsburg, Sotomayor) Congress has the right to spend federal funds for the general Welfare, and each Congress has the right to modify existing programs. Medicaid grants have always been explicit on this point. The Affordable Care Act did not create a new health care program. Medicaid always provided health care for the poor and it still would, since people making $14,856 a year (133% of the poverty level—the new eligibility standard) are definitely poor. The required changes in services to be provided have been a local option for years and the reimbursement rates have only gone up. States have four years to adjust to the change. The Roberts’ test of practical ability to turn the grant down is unworkable.

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II. MUNICIPAL ORGANIZATION AND REORGANIZATION II. C. ANNEXATION AND DETACHMENT §1.149 Annexation and Detachment LAFCO cannot split large “island” into smaller chunks to streamline annexation proceedings. Opinion of Kamala D. Harris, Attorney General (No. 10-902 - McLeod) June 1, 201 To facilitate annexation of “pockets of unincorporated territory,” California adopted “island annexation procedures” which, under certain circumstances, eliminate the protest rights of those being annexed. One requirement is that the island “not exceed 150 acres in area, and that the area constitutes the entire island.” (Government Code section 56375.3.) The Attorney General continues to be of the opinion that LAFCO may not carve an “island” into islets of less than 150 acres in order to allow streamlined annexation. III. B. CITY COUNCIL §1.222 Term Limitations in Cities. Term served before effective date of term-limit initiative cannot be counted towards limits; terms that commenced ten days before the effective date are to be counted towards the limit. Opinion of Kamala D. Harris, Attorney General (No. 11-401 – Gaines ) July 12, 2012 Government Code section 36502 authorizes local voters to set city council term limits prospectively. The voters of Loomis, a general law city, passed a measure that provided “any [council] member who has served two terms prior to August 1, 2010 must sit out eight years.” At the same time, they re-elected two council members who had served more than two terms before August 1, 2010. The Attorney General’s opinion is that the “sit out” requirement is void because it retroactively alters the consequences of past service. There is a ten-day delay after the certification of the election results before the new ordinance is in effect. Therefore, three councilmembers were sworn in, and commenced their new terms ten days before the term limits came into effect. The Attorney General concludes these new “partial terms” are to be counted (as full terms) towards the two term limit. §1.239 Publication of Ordinance Newspaper loses its status as a paper of general circulation when it is no longer printed in county and cannot prove it qualifies under exception for pre-1923 papers. The Press Democrat v Sonoma County Herald Recorder (June 9, 2012) C.A. 1st 207 Cal. App. 4th 578

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The Herald Recorder, then known as the Sonoma County Herald, was adjudicated a newspaper of general circulation in 1953. In 2010, The Press Democrat sued to vacate this determination on the grounds that the paper was no longer printed in the county and did not qualify for an exemption from the printing requirement for pre-1923 papers. The Press also argued that the Herald Recorder no longer had a bona fide list of paying subscribers in the county. Reversing the trial court, the appeals court found that the defendant had failed to meet its burden to show that it was [the successor to] a paper of general circulation before 1923 and should lose its status as a paper of general circulation. (The New York Times owns The Press Democrat; the Daily Journal owns the Herald Recorder. At stake was the right to publish notices of trustee’s sales, a big business in recent years.) CHAPTER 2. OPEN GOVERNMENT AND ETHICS IV. CALIFORNIA PUBLIC RECORDS ACT| §2.215 Records Subject to Inspection Under California Public Records Act 1. Reference to document by general website insufficient to make it part of administrative

record. 2. Subconsultant’s files were not public records

Consolidated Irrigation District v Superior Court (City of Selma) C. A. 5th April 26, 2012 – petition for review filed July 2, 2012 205 Cal. App. 4th 697 The City of Selma certified an EIR on a new commercial development; the irrigation district sued, arguing that the City has failed to adequately consider damage to the local aquifer. A dispute arose about (1) what documents the district could obtain under a public records request and (2) what should be included in the administrative record required by CEQA. CEQA requires that the record include written comments received and written evidence submitted, as well as “documents referenced and relied upon in the EIR.” Held:

1. A document is submitted and becomes part of the record when: a. A physical copy is delivered by the commenter, b. The commenter advises the Lead Agency that it already possesses a copy

of the document and offers to provide another if needed, c. The commenter provides the specific URL of the document on the World

Wide Web and requests that the document be part of the record. 2. A document is not made part of the record by reference to a “general web page”

rather than a document-specific URL. 3. Under both CEQA and the Public Records Act, the city’s “files on the project”

included the environmental consultant’s files. Under typical contract language the city has ownership of those documents. However, under that same language, the city had no right to subconsultant’s documents and never had copies of them. The court noted that sub-consultant documents may become part of the record under other CEQA provisions.

4. The (CEQA) administrative record includes audio recordings of public hearings (as well as minutes) if no verbatim transcript exists.

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IV. D. EXEMPTION FROM DISCLOSURE § 2.229 Overview of Exemptions U.S. Constitution Gives Family Control of Public Dissemination of Death Images Marsh v. County of San Diego 680 F. 3d 1148 9th Circuit May 29, 2012 Marsh’s child died of traumatic injuries; her companion was convicted of murder. Twenty years later, the conviction was set aside. A retired county prosecutor, who had retained a copy of a picture of the dead child, wrote a memorandum asking What Really Happened to Phillip Buell? He gave this material and the picture to a newspaper and television station. Marsh sued the County and the retired prosecutor for violation of her 14th Amendment Due Process Rights. Expanding on earlier cases finding a privacy right against distribution of death images where “publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern,” the court ruled that Marsh had a right not to have the image distributed in this fashion. The Court based its decision in part on Code of Civil Procedure section 129, which severely limits copying and distribution of autopsy photos. CCP section 129 establishes a privacy right which cannot be ended without due process. While the right exists, the §1983 action fails. The prosecutor’s post-retirement actions were not government conduct. For his pre-retirement misappropriation of the picture, he is entitled to qualified immunity because there was no clear federal constitutional right involved at the time. § 2.236 Law Enforcement Records UPDATE: Long Beach Police Officers Association v. City of Long Beach Petition for review granted by California Supreme Court April 18, 2012. [Names of officers involved in shootings are not statutorily exempt from disclosure under the Brown Act.] CHAPTER 3. ELECTIONS See Opinion of Attorney General Kamala D. Harris (Gaines) above. CHAPTER 4. PERSONNEL - See, generally, Labor Law Update

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CHAPTER 5. FINANCE AND ECONOMIC DEVELOPMENT II. B. TAXES §5.20 Property Taxes After 1978 Passage of Proposition 13 Assessor of County of Santa Barbara v. Assessment Appeals Board No. 1 (Rancho Goleta Lakeside Mobileers, Inc.) C.A. 2nd, May 16, 2012. Rehearing granted June 16, 2012 [Board of Equalization-supported reassessment formula for sales of individual sites in tenant-owned mobile home park, used by County Assessor, was inconsistent with statute; valuation approach also unsupported. Problems with equity a matter for legislature.] §5.52 Transient Occupancy Taxes City may require hotels to provide registry information without search warrant. Patel v. City of Los Angeles 9th Circ. July 17, 2012 ___ F. 3d ___ The City of Los Angeles requires hotels to make available, upon request of the police department, the following registry information: Names and addresses of guests and total number of guests Make, type and license number of guest’s car if parked on hotel property Room number, rate charge and collected, and payment method Name of employee handling check-in. Records must be maintained for at least 90 days. Plaintiff brought a facial challenge under the Fourth Amendment’s guarantee of a right to be free from unreasonable searches and seizures and the right to privacy. A divided appellate court ruled for the City. Held:

1. Guests have no expectation of privacy in registry information once provided. 2. The use of registry information for other business purposes does not create an expectation

of privacy on the part of the hotel operator. 3. An ‘as-applied” challenge might establish a privacy expectation in some cases. 4. There is no trespass since the records may be provided in the publically accessible lobby.

The dissent is of the opinion that the ordinance authorizes a warrantless search that is not justified, as it must be, by a specifically established and well-delineated exception.

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II. D. BENEFIT ASSESSMENTS AND ASSESSMENT DISTRICTS §5.124 Annual Versus Installment (Bonded) Assessments No denial of equal protection when installment payments are cancelled but those who paid in full do not receive refund of sewer assessment. Armour v. City of Indianapolis, Indiana (U.S. Supreme Court, June 4, 2012) 132 S. Ct. 2073 Indianapolis financed the extension of sewer assessments to neighborhoods using septic tanks by assessing the cost on a per lot basis; property owners had the option of paying in full up front or using a ten, twenty, or thirty year payment plan. In 2005 the City shifted to a new system of lower flat rates, with part of the cost paid through utility bonds. It believed that this new system would speed the replacement of septic systems. As part of the transition, it cancelled future installment payments of outstanding assessments, but it did not offer a refund to those who paid in full. The unfortunate plaintiffs, who had paid about $8,000 each just a few months before the conversion, sued when denied a refund. (Some of their neighbors had paid less than $500.) The majority ruled for the City:

…this case falls directly within the scope of our precedents holding such a law constitutionally valid if "there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational."… And it falls within the scope of our precedents holding that there is such a plausible reason if "there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

The court noted that many thousands of payments would have to be tracked---some as little as $25---over many decades if the City did not forgive the installments. The three dissenters (Roberts, Scalia, and Alito) argued that Alleghany Pittsburgh Coal, which invalidated a “welcome stranger” real property tax system based only on purchase price, should invalidate Indianapolis’s approach. The majority characterized Alleghany as involving a burden on interstate commerce and the right to travel; the minority argued that there was not even a minimal justification for refusing to grant refunds. Practice Tip: This is a useful case for defending past conduct, but read the case in full before considering it as a basis for future policy decisions. The City’s position is defensible but not attractive. CHAPTER 6. MUNICIPAL SERVICES AND UTILITIES

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CHAPTER 7. PUBLIC CONTRACTING I. PUBLIC WORKS CONTRACTS I. G. PREVAILING WAGES § 7.84 Applicability to Charter Cities Wages paid for a locally funded public work are not a matter of statewide concern. State Building and Construction Trades Council of California, AFL-CIO v. City of Vista California Supreme Court, July 2, 2012 54 Cal. 4th 547 The voters of the general law city of Vista converted their city to a charter city to avoid the statutory requirement of paying prevailing wages on public works projects. Vista then built two fire stations without requiring prevailing wages. The building trades sued, arguing that wages on public works projects within a city affected regional wages in their industry. Vista countered that its action was within the right of a charter city to govern its own municipal affairs (Cal. Const., art XI, §5). The unions presented economic data in support of their contention that Vista’s actions would depress regional wages. The divided appellate court, treating the question before it as one of fact, said that the union failed to show such a regional effect. The Supreme Court majority said this was the wrong approach: whether a matter is a municipal affair and not subject to state regulation is a question of law. However, the answer may very depending upon shifting “social and economic realities.” The fact that the Supreme Court found the prevailing wages inapplicable to charter cities in the 1930s did not mean that the same answer would necessarily be given in 2012. As a narrowly focused law and one that dictates how a city spends its money, the State’s prevailing wage law was doubly suspect:

No one would doubt that the state could use its own resources to support wages and vocational training in the state’s construction industry, but can the state achieve these ends by interfering in the fiscal policies of charter cities? Autonomy with regard to the expenditure of public funds lies at the heart of what it means to be an independent governmental entity. . . . Therefore, the Union here cannot justify state regulation of the spending practices of charter cities merely by identifying some indirect effect on the regional and state economies.

The court noted a line of its own decisions finding compensation of public employees to be a local affair; it also noted it was more willing to let the state impose procedural requirements (such as labor negotiation rules) on charter cities than substantive requirements.

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I. G. PREVAILING WAGES § 7.87(c) “Paid for in Whole or in Part Out of Public Funds.” Different funding-source exemptions from prevailing wage requirements cannot be combined in a single project. Housing Partners, Inc. I v. Duncan C.A. 4th June 15, 2012 206 Cal. App. 4th 1335 Housing Partners is a tax-exempt non-profit. It financed a senior housing project with a HOME loan, city redevelopment funds, and a housing authority loan. Several sections of the prevailing wage statutes exempt projects financed with these sources of funds individually. The Director of the Department of Industrial Relations found the project subject to prevailing wage laws because the various exemptions under Labor Code section 1720 cannot be combined. Housing Partners argued that this was an absurd result that violated public policy. Declining to address issues of public policy better left to the legislature, the court upheld the director’s decision.

II. CONTRACTING FOR GOODS AND SERVICES II. A. Authority to Contract § 7.174 In General City’s decision to reject all bids and provide golf cart service with its own staff is not reviewable by court.

Michael Leslie Productions, Inc. v. City of Los Angeles C.A. 2d, June 21, 2012 207 Cal.App. 4th 1011 The Los Angeles City Charter requires that contracts for a term of more than three years be approved by the City Council. J.H. Kishi Company’s contract to provide golf carts expired in 2003. It then provided services on a month-to-month basis during the RFP process. That process took seven years. The Board of Parks and Recreation Commissioners, which had the power to select the successful bidder, unanimously recommended an award of a three-year contract to Plaintiff. The alternative of using City staff was also analyzed and rejected as more expensive. However, the length of the contract meant it required City Council approval. When the matter finally came before the Council, it was advised that Kishi was being audited for underreporting concession payments. The City Council voted to disapprove the contract with Plaintiff. It also asked the Parks and Recreation Board to award the contract to Kishi and restudy self-operation by the City. The audit confirmed that Kishi was short-changing the City. Staff reanalyzed the economics of self-operation and recommended that option. (It also recommended terminating the contract with Kishi.) The Board accepted the recommendation and all bids were rejected. Plaintiff brought a writ of mandate action to compel the Council to vote on its contract or to compel the City to execute the contract. The City’s demurrer was sustained without leave to amend:

No matter how distasteful we may find the appearance of bias in favor of Kishi, the courts have no authority to substitute judicial discretion for the

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City’s discretionary decision to self-operate the golf-cart concession.

The court listed a number of other scenarios in which mandate might lie, such as award of a contract to Kishi, or a violation by the City of its own procedural requirements. Held:

1. The award of a contract is legislative in character, and traditional mandate (CCP §1085) is the appropriate procedure to review a legislative act. Its scope is very limited.

2. While it is reasonable to infer that losing bidder improperly interfered with the contracting process, the losing bidder did not get a contract. All bids were rejected.

3. Courts are not empowered to review the City’s exercise of its discretion to self-operate.

CHAPTER 8. PUBLIC PROPERTY CHAPTER 9. REGULATING BUSINESSES AND PERSONAL CONDUCT (Cases involving medical marijuana regulation are reported elsewhere.) II. REGULATING BUSINESSES AND OCCUPATIONS II. A. Business Licenses and Regulations § 9.5 First Amendment State may regulate commercial weddings on state beaches but cannot have discretion to revoke or modify permits “as necessary and appropriate.” Kaahumanu v. State of Hawaii 9th Circuit, June 6, 2012 682 F. 3d 789 Hawai’i regulates all commercial activity on state beaches through an on-line, instant-issue permit system. A fee, an insurance certificate, and a limited indemnity agreement are required. Placing of furniture or other objects on beaches is limited, as is the use of amplified music. Commercial wedding planners sued, arguing that the regulations violated the First Amendment and denied equal protection. The court found that marriage ceremonies are protected speech, but the regulations were not unduly burdensome and were content neutral. The rules are valid even if the court were to determine the beaches are a traditional public forum. (It made no determination because it applied the most rigorous test to the regulations.) However, the unfettered discretion of a government official to revoke or modify a permit, though never exercised, was unconstitutional. II. C. Rent Control § 9.54 Permissible Rent Control Regulation Inspection program for rental units and associated fees are lawful. Griffith v. City of Santa Cruz C.A. 6th July 16, 2012 207 Cal. App. 4th 1318

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Santa Cruz, a charter city, adopted a rental unit inspection program in 2010. Inspections may result in notices of violation, which in turn may lead to other, unspecified, enforcement action. The trial and appellate courts rejected plaintiff’s argument that the ordinance was pre-empted by state housing law, denied equal protection (in comparison to owner-occupied dwellings), or violated Proposition 218 (as a tax on real property) or Proposition 26 (as a tax rather than a regulatory fee.) City demonstrated that the revenues merely covered the reasonable costs of administration of a legitimate regulation of the residential rental business. Practice Tip: Santa Cruz drafted its ordinance very thoughtfully; other ordinances might not do as well. C. 4. Special Considerations for Mobile Home Rent Control County may base denial of mobile home park subdivision map on tenant opposition. Goldstone v. County of Santa Cruz C.A. 6th July 17, 2002 207 Cal. App. 1038 The Subdivision Map Act has special, but somewhat murky, rule on the approval of the subdivision of a mobile home park. A survey of residents to determine their views on the proposed change is to be “considered” (Government Code section 66427.5). However, the scope of the review is also “limited to the issue of compliance with [the section.]” Concluding that the requirement to consider the survey must mean something, the court upholds the County’s denial of approval based on tenant opposition. It also says clearer legislation would be nice. III. REGULATION OF PERSONAL CONDSUCT III. H. GUNS AND WEAPONS §9.101 Second Amendment Requirement that guns at gun show be “secured” does not violate Second Amendment Nordyke v. King 9th Circuit en banc, June 1, 2012 681 F. 3d 1041 It is a misdemeanor to possess a firearm at the Alameda County Fairgrounds with certain exceptions. One exception is for possession of a firearm as an authorized participant in a “motion picture, television, …or theatrical production or event…provided that when such firearm is no in the actual possession of the authorized participant, it is secured to prevent unauthorized use.” When this litigation began in 1999, Alameda interpreted its ordinance to ban gun shows (sales events) from the County fairground. The United States Supreme Court subsequently recognized an individual right to guns under the Second Amendment in 2008 and held in 2010 that the right is fundamental and incorporated against states and cities under the Fourteenth Amendment. (McDonald v. City of Chicago, 130 S. Ct. 3020.) At oral argument, the County took the position that a gun show is an “event” and can proceed under the ordinance. The court found that the rules

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requiring that guns be secured did not unnecessarily burden plaintiff’s Second Amendment rights and affirmed the three-judge panel’s dismissal of plaintiff’s Second Amendment claims. III. L. Speech §9.128 Charitable Fund-Raising No right to enter parking lot of free-standing store and solicit charitable contributions and preach. Ralphs Grocery Company v. Missionary Church of Disciples of Christ C.A. 2d April 26, 2012 Petition for review granted by California Supreme Court. [Question presented: should respondents be permanently enjoined from soliciting activity outside one of petitioner’s grocery store? (They made no claim under Pruneyard.)] CHAPTER 10. LAND USE (see CEQA/Land Use Update Paper) CHAPTER 11. PROTECTING THE ENVIRONMENT (excluding CEQA/NEPA cases)

V. AIR QUALITY V. A. Basic Regulatory Scheme §11.198 Regional Air Quality Regulations SCAQMD could issue pollution retrofit regulations based on “reasonably anticipated” technologies. American Coatings Association v. South Coast Air Quality District Cal. Sup. Ct. June 25, 2012 54 Cal. 4th 446 Air Quality Management Districts regulate non-vehicular air pollution emissions. In 2002 the South Coast Air Quality Management District amended its rule on paints and coatings. The trade association sued. It argued that the rules exceeded the District’s regulatory authority under statutes requiring the use of “best available retrofit control technology” (BARCT) because the District did not show that the technology was available. The Association won at the appellate level but lost before the California Supreme Court. The Association argued that the District had failed to show that paints and coatings existed that met the proposed standards. The District argued that the statute, which references ‘achievable’ emissions reductions, authorizes retrofit standards that are ‘technology-forcing.’ The appellate court ruled for the trade association, finding that technology had to be commercially available or capable of being readily assembled when the 2002 amendments were promulgated. The Supreme Court disagreed:

In assessing the validity of a quasi-legislative regulation in an action for mandamus under Code of Civil Procedure section 1085, “ [o]ur inquiry necessarily is confined to the question whether the classification is “arbitrary, capricious, or [without] reasonable or rational basis.”

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Furthermore, “[u]nless otherwise provided by law . . . the petitioner always bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085. . . .It is worth noting that “the question whether agency action is “entirely lacking in evidentiary support” is not the same as a substantial evidence test…[however] the proper interpretation of a statute is ultimately the court’s responsibility.

After a close reading of the statute and implementing regulations, and the philosophy and implementation of the federal Clean Air Act, the court concludes that the BARCT standard is designed to compel the development of new technologies to meet public health goals. Because air pollution is a cost-free industry externality, industry has no incentive to reduce it absent regulation. Rejecting the trade association’s suggestion that the court apply a “fair argument standard” to regulations, invalidating them whenever the challenger can make such an argument the court said:

such a rule might be plausible if the primary purpose of BARCT were to rein in overzealous air pollution control districts, but as discussed above section 40406 had the contrary purpose of requiring districts to pursue more aggressive regulation.

V. G. Global Warming § 11.238 The Climate Change Scoping Plan adopted by CARB meets requirements of the Global Warming Solutions Act. Association of Irritated Residents v. California Air Resources Board C.A. 1st June 20, 2012 206 Cal. App. 4th 1487

Plaintiff is an environmental justice group. A first step in reducing California’s greenhouse gas emissions through regulation is the adoption, by CARB, of a scoping plan. AIR argued in court that the adopted plan was not adequate for achieving the maximum technologically feasible and cost-effective reduction in greenhouse gas emissions by 2020 as required by the Global Warming Solutions Act. AIR said that no serious consideration had been given to a carbon tax, that agriculture and much of industry were unregulated without any rational basis for their exclusion, and that the damage “cap and trade” does to air quality around facilities that elect to buy pollution rights was ignored. The trial court rejected most of AIR’s challenges under CEQA. It did agree with AIR that the CARB failed to adequately analyze alternatives to the cap-and-trade program and provided no meaningful information or discussion about the carbon fee (or carbon tax) alternative. CARB then wrote an appendix and readopted its earlier conclusions, and the court discharged its writ. The appellate court was then left to review AIR’s claims that the Scoping Plan violated the Global Warming Solution Act. The court noted its limited power in reviewing a quasi-legislative act:

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1. Does the rule lie within the lawmaking authority delegated by the Legislature? 2. Is it reasonably necessary to implement the purpose of the statute , i.e. did CARB

exercise its discretion arbitrarily and capriciously, without substantial evidentiary support?

The court noted the broad discretion granted CARB, the enormity of its task, and the extensive work that went into the plan and found the Scoping Plan to be a lawful exercise of CARB’s power. CHAPTER 12. CODE ENFORCEMENT IV. ADMINISTRATIVE ENFORCEMENT. IV. C. CIVIL REMEDIES § 12.71 Administrative Abatement Procedures for Substandard Residential

Buildings Receiver appointed at request of city to abate substandard building may not recover costs from foreclosing lender for work done before foreclosure at request of City. City of Chula Vista v Gutierrez C.A. 4th, July 3, 2012 207 Cal. App. 4th 681 World Savings/Wachovia made a $400,000 loan on a four-unit building in 2006; it recorded a notice of default in 2008. Two months later, the City notified the landlord of multiple violations. On learning she was a prisoner in another state, the City petitioned to have a receiver appointed under Health and Safety Code section 17980.7 to correct the problems and operate the building. The court order was issued but specifically stated that it did not apply to Wachovia. The receiver promptly boarded up the building and relocated the families living there. He notified the court in early 2009 that Wachovia would foreclose and be responsible for rehabilitation. The court authorized the receiver to file a lien superior to the deed of trust; he apparently did not. In 2010 Wachovia foreclosed on its note and resold the property. The receiver then filed a report requesting a receiver’s lien for about $40,000. On learning the property had already been sold, he instead requested an order for direct payment from Wachovia. The court only allowed charges for the three months when Wachovia actually held title. The receiver appealed, arguing that Wachovia would be unjustly enriched if it did not have to pay his costs. The court disagreed: Wachovia did not request the receiver – the City did. Wachovia received no discernible benefit. The court “expressed no opinion regarding whether Adams could have recovered from the City through principles of unjust enrichment or otherwise.” However, the court also notes the receiver might have avoided the problem with better diligence earlier. Practice Tip: The obligation to pay a receiver is often assumed by a secured lender through “receivership certificates.” Alternatively, the party requesting the receiver typically has the payment obligation. A city requesting the appointment of a receiver should address this issue at the outset.

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CHAPTER 13. LIABILITY AND LITIGATION 13.163 Private Attorney General Doctrine /CCP §1021.5 City’s non-pecuniary interest in outcome of CEQA lawsuit does not prevent award of attorney’s fees. City of Maywood v. Los Angeles Unified School District C.A. 2d July 18, 2012 207 Cal. App. 4th 1075 The City of Maywood successfully challenged the certification and was awarded $650,000 in attorney’s fees. On appeal, only one of its objections to the EIR was sustained: inadequacy of analysis of danger to pedestrians in a campus divided by a public road. LAUSD argued that Maywood was not eligible for a private attorney general’s fee award because the lawsuit was brought solely to benefit Maywood and its residents “whether for financial or other reasons.” While it is true that the pecuniary interests of both a city and its residents must be considered in deciding whether it qualifies for a private attorney general’s fee award, its non-pecuniary interests are irrelevant. In reaching this conclusion, the court applied the reasoning in Conservatorship of Whitley (2010) 50 Cal. 4th 1214 to actions bought by a public agency. Cases to the contrary that pre-date Whitley are no longer dispositive. Case remanded to trial court to reconsider attorney’s fees award if motion is renewed. §13.169 Motions for Sanctions Court has discretion to reduce statutory sanctions against lawyer for frivolous litigation in bad faith on basis of inability to pay. Haynes v. City and County of San Francisco C. A. 9th July 23, 2012 ___ F. 3d. ____ Haynes pursued frivolous causes of action in bad faith against the City and County of San Francisco and numerous other agencies and public officials. He was sanctioned under 28 U.S.C. § 1927; he pled poverty but the trial court believed it had no discretion to reduce the amount. The 9th circuit reversed. §13.173 Municipality as Plaintiff 1. City’s cause of action to enjoin property developer convicted of bribery from “profiting

further” by his crimes vulnerable to anti-SLAPP motion; public interest exceptions do not apply.

City of Colton v. Singletary C.A. 4th May 30, 2012 206 Cal. App. 4th 751

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James Singletary admitted, as part of a federal plea bargain, that he bribed a Colton councilman. The bribed councilman provided the third vote on the substitution of a development agreement for a subdivision agreement, which shifted millions of dollars of property-owner improvement obligations to the City of Colton. Singletary and various public officials went to jail. The City nevertheless constructed millions of dollars worth of improvements; Singletary sued to have them construct even more. During the course of discovery, the City found the original subdivision improvement agreement and counter-sued for (1) restitution for the cost of improvements made by the City; (2) specific performance of the subdivision improvement agreement; and (3) an injunction against “further attempts to profit” from his wrongdoing. (The guilty plea was admissible as evidence that Singletary was guilty of bribery; it is not collateral estoppel in a civil action.) Singletary brought an anti-SLAPP motion, arguing that the City was trying to silence his protected speech, i.e., his lawsuit. The trial court ruled for Singletary and awarded attorney’s fees. A divided appellate court also ruled for Singletary, after analyzing the various causes of action and striking some and upholding the others. It rejected the City’s arguments that either the prosecutorial or public interest exceptions to the anti-SLAPP remedies were applicable. It declined to view the interest of a public agency in recovering millions of dollars in expenses incurred because of the conduct of Singletary and a corrupt public official as “in the public interest.” 2. Judgment finding illegal conduct by Board of Equalization will not be vacated at stipulation

of parties because it is against public interest to do so. City of Palmdale v. State Board of Equalization C. A. 2nd May 23, 2012 206 Cal. App. 4th 329, motion to vacate denied. At the request of the City of Pomona, the Board of Equalization reallocated sales tax revenue from a business from county-wide pool to Pomona alone. The Board did this by applying a “warehouse as point of sale rule” retroactively for eight years. It ignored the advice of its legal counsel and failed to explain the reasons behind its ruling. Other Los Angeles County public agencies tried to appeal this decision at the Board and then sued. The trial court, after wading though a complex record, set aside the Board’s decision. The case was appealed and the record lodged with the appellate court. Before briefs were due, the parties requested a vacation of the trial court decision, having entered into a settlement agreement that reallocated some revenue from Pomona to the plaintiff agencies. The appellate court, in a sharply worded decision, denied the motion to vacate the judgment. The court explained that Code of Civil Procedure section 128 requires that before vacating a judgment upon stipulation of the parties, the court must find:

(A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal, and (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of

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stipulated reversal will reduce the incentive for pretrial settlement. The appellate court was unable to make these findings and went on to say:

The trial court‘s judgment is tantamount to a public reproval and is an embarrassment to an agency charged with functions vital to the financial stability of California and its subdivisions and the finances of state taxpayers. The judgment provides a strong practical incentive for the Board to consider, in the future, the laws that govern the way it operates in deciding any tax appeal. We reject the parties’ contention that this case is merely a dispute over money.

It then ordered publication of the case.