HomeMy WebLinkAbout07/19/1995, C-6 - POLICY REGARDING AMICUS CURIAE (FRIEND OF COURT) PARTICIPATION ��i��► II�I�����ID��If���� city oSan Luis os�spo MEETING DATE:
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COUNCIL AGENDA REPORT ITEM N MB
FROM: JEFFREY G. JORGENSEN, CITY ATTORNEY
SUBJECT: POLICY REGARDING AMICUS CURIAE (Friend of Court)
PARTICIPATION
CAO ADOPT RESOLUTION ESTABLISHING POLICY
RECOMMENDATION: REGARDING ANICUS CURIAE (Friend of Court)
PARTICIPATION
DISCUSSION:
The City currently does not have a policy on participation by the
City as amicus curiae (friend of the court) in statewide legal
actions in which the issues raised may be significant to the City.
Because the City is frequently requested to join as amicus curiae
and the time limits for filing such briefs is often very short, the
City Attorney's Office is proposing the adoption of a policy to
read as follows:
''It is the policy of the City Council that the decision
whether the City will participate as amicus curiae in any
legal action in which the issues raised may be
significant to the City shall be made as follows:
Ill. For cases in which participation by all cities is
urged by the Legal Advocacy Committee of the League of
California Cities, the decision regarding participation
may be made by the City Attorney, if there is no cost to
the City to participate.
112. For cases in which participation by interested
cities is recommended by the Legal Advocacy Committee of
the League of California Cities, the decision regarding
participation may be made by the Mayor and City
Administrative Officer upon a recommendation by the City
Attorney, if there is no cost to the City to participate.
123. For all other cases, the decision regarding
participation shall be made by the City Council upon
recommendation by the City Attorney."
The reason for the proposed policy is to streamline the process
regarding amicus participation in litigation affecting the City's
interests. Often, because of the time limits for filing a brief,
it is not practical to place the matter on the City Council agenda
for consideration. The proposed policy would avoid this problem,
1
while at the same time setting clear guidelines and direction for
the City Attorney.
The League of California Cities has established a standing
committee of the City Attorney's Department known as the Legal
Advocacy Committee. It is composed of City Attorneys from around
the State. I have recently been appointed as the representative
for the Channel Islands Division. Its purpose is to review
litigation of significant interest to California cities and to make
recommendations regarding that litigation. The Committee carefully
considers all aspects of pending litigation before making a
recommendation. The Committee urges participation by all cities
only under very limited circumstances where there is a clear common
interest. Generally, participation is urged only when the "issue
would have a statewide significance and is one in which all cities
have a common interest in the same outcome. " Similarly,
participation is recommended only if the Committee determines that
"the issue would have a significant impact on a significant number
of cities which have a common interest in the same outcome and
would not have a foreseeable impact on other cities. " (A copy of
the Committee's bylaws are attached, as well as the most recent
Committee report, dated May 19, 1995, for your information. )
FISCAL IMPACT:
There is no fiscal impact to the City because the policy allows for
participation only if there is no cost to the City. In rare
instances where the City may be called upon to contribute
financially, the policy would require City Council concurrence.
ALTERNATIVES:
The City Council could require Council approval of all decisions to
join as amicus curiae. Because of the strict time lines involved,
and the safeguards written into the policy, this alternative is not
recommended. Conversely, the prompt and widespread participation
by cities in amicus curiae briefs has been extremely influential
with the judiciary in encouraging favorable legal opinions on
matters of statewide significance to cities.
JGJ/sw
Attachment 1: Legal Advocacy Committee Bylaws
Attachment 2: Legal Advocacy Report (May 19, 1995)
Attachment 3: Proposed Resolution
2
c- �- z
Section I-League structure and organization I-23
EXHIBIT A
Sacramento, California
July 12, 1991
LEAGUE OF CALIFORNIA CITIES
LEGAL ADVOCACY PROGRAM
(as adopted in April 1973, amended in January 1981,
July 1990 and July 1991)
There shall be a Legal Advocacy Program established within the framework of the league and the City
Attorneys' Department. The program shall be administered by a Legal Advocacy Committee.
4. Leaal Advocacy Committee
a oses
The Committee shall screen and evaluate all litigable issues submitted to it to determine the
existence of those of major significance to cities in general. Major significance is to be
determined by the effect the case outcome could have on existing statutory or case law and
in accordance with the following guidelines
(1) Whether the issue would have a statewide significance and is one in which all cities
have a common interest in the same outcome.
(2) Whether the issue would have a significant impact on a significant number of cities
which have a common interest in the same outcome and would not have a
foreseeable adverse impact on other cities.
b. Compo its ion
The Committee shall be composed of City Attorneys. One Committee member selected
from each of the Regional Divisions of the League, exclusive of the cities of Los Angeles,
San Diego, San Francisco and San Jose, shall be appointed by the President of the City
Attorney's Department, in consultation with the other Department officers.
The following division representatives shall be appointed in even numbered years: Central
Valley, East Bay, Imperial County, Los Angeles County, North Bay Orange County, South
San Joaquin Valley, Desert-Mountain Divisions. The following division representatives shall
be appointed in odd-numbered years: Channel Counties, Inland Empire, Monterey Bay,
Peninsula, Redwood Empire, Sacramento Valley and San Diego County. If any additional
divisions are created a representative shall be appointed from that division. The first such
appointment shall be made in odd-numbered years with any additional divisions alternating
League of California Cities The City AtlornWs Deskbook
19%Edition
Attachment 1 C •V
I-24 Section I-League Structure and Organization
between even- and odd-numbered years so one half of the Committee can be appointed
each year. All division Committee members shall serve for a period of two years.
The City Attorney, or a designated assistant or deputy, of the cities of Los Angeles, San
Diego, San Francisco and San Jose, shall serve as permanent members of the Committee.
The officers of the City Attorney's Department shall serve as ex-officio members of the
Committee without the right to vote.
The Committee shall select from among its members a chairperson who shall serve for a
period of one year. The chairperson shall be selected at the last meeting of the Committee
prior to the expiration of half the committee members' terms.
C. Meetines
The Committee shall meet regularly on a mutually convenient day within the month
preceding each quarterly meeting of the League Board of Directors, unless canceled by the
chairperson.
Special meetings may be called by the Committee chairperson or President of the City
Attorneys' Department.
At any regular or special meeting, a majority of members shall constitute a quorum. No
proxy votes shall be permissible at a duly convened meeting.
d., Executive Committee
The Committee shall select from among its members an Executive Committee of seven
which may act between meetings of the full Committee. The election shall occur at the last
meeting e'the committee prior to the expiration of half the Committee members' terms.
The Committee, in making its choices, should keep in mind the diversity of the department
and seek representation of its membership including small city versus large city, charter
versus general law, elected versus appointed, and full time versus part time. Two of the
seven Executive Committee members shall be selected from the four permanent members,
one from northern California and one from southern California. The other five Executive
Committee members shall be selected from the division representatives. The LAC
Committee chairperson shall be a member of the Executive Committee.
The Executive Committee shall act for the full Committee only when necessary because
time constraints for a case do not allow consideration at the next Committee meeting.
Actions subject to approval by the League Board of Directors require a majority vote of the
quorum. Actions not subject to review by the Board shall be taken in the name of the
Legal Advocacy Committee and shall require five affirmative votes. It is important that
such actions be representative of all of the League's membership and only be taken when
the issue is of clear importance, commonly shared and consistent with Department and
Board policy.
League or California Cities The City Attorney's Deskbook
1990 Edition
.ton i-League Structure and Organization I-25
5. mal Advocaa Pro rg am
a. Functioning
(1) Information Collection
(a) Division Committee members are responsible for keeping informed of all
litigable issues arising within their Division which potentially fall within the
purposes of the Committee.
(b) City Attorneys are responsible for providing on a regular basis to their
Committee member information concerning cases pending by or against
their city or other public agencies within their knowledge.
(2) Transmittal to Committee
(a) Division Committee members are responsible for having the city or other
public attorney litigant convey to all members of the Committee all
pertinent information concerning such issue or case so coming to their
attention.
(b) Any City Attorney may submit directly to all members of the Committee
for consideration and action by the Committee any litigable issue by
directing to all members of the Committee a request therefor, accompanied
by all pertinent documents.
b. Regular Committee Actions
Upon receipt of information concerning a litigable issue from a Division Committee
member c: upon receipt of a request for consideration and action by a City Attorney, the
Committee, in accordance with the guidelines set forth in the Purposes, supra, may as it
deems appropriate recommend one of the following actions:
(1) Inform all City Attorneys of the issue and the Committee's opinion that no further
action is warranted.
(2) Invite or solicit the filing of individual amicus curiae briefs.
(3) Approve amicus curiae appearance by brief and/or argument by a city or public
attorney on behalf of all cities consenting.
Whenever the committee determines to take action under this paragraph it may
take the following additional actions; (a) urging participation by all cities; or (b)
recommending participation by cities interested in the matter.
(4) Authorize a letter to be sent to either (a) seek or oppose court review of a certain
decision, or (b) seek or oppose publication of a certain court's opinion.
(5) Approve the instigation of litigation by participating cities.
League of California Citic The City Attoraey's Deskbook
1994 Edition r
1-3 a • & -J
1-26 Section 1-League Structure and Organization
(6) Select an attorney, if required, to prepare the case, as amicus curiae or otherwise,
to be funded:
(a) By voluntary contributions of cities solicited by the League on behalf of the
City Attorney's Department to be made directly to the attorney selected by
the Committee.
(b) By voluntary contributions of cities solicited by the League on behalf of the
City Attorney's Department to be administered by the League as trustee.
(7) Approve, by no less than a majority vote of the entire membership of the
Committee, dict League participation in an amicus curiae brief to be prepared, at
no expense to the League, by an attorney selected in accordance with subdivision 3
or 6 above. Direct participation by the League as amicus curiae shall be limited to
those exceptional cases in which the issue or issues would have a major impact on
all cities and all cities have a common interest in the same outcome.
The Committee's recommendations shall be placed on the agenda for the next meeting of
the League Board of Directors. After Board action the Legal Advocacy report with the
approved recommendations shall be sent to the city attorneys statewide.
C. Authorization for Committee Actions Without Board Review
It is recognized that because of time constraints, some actions by the LAC on requests for
amicus participation (Sections B 1, 2 and 3) and on petitions for certiorari, requests for
hearing, extraordinary writs and the publishing or depublishing of opinions (Section B 4)
must often be taken without prior approval from the Board. Such actions may be taken
provided they are consistent with the policy and programs of the League of California Cities
and are approved by a two-thirds vote of a quorum of the Committee. However, they must
be taken i a the name of the Legal Advocacy Committee and not on behalf of the League of
California Cities.
d. Reconsideration
Provided there has been a significant change in either the circumstances or the applicable
law which occurs after a committee action, or when the action may conflict with League
policy, a request for reconsideration may be made by a Committee member who also must
suggest an alternative action. The request, if possible, shall be made at the next meeting of
the Committee or be sent in writing by fax or mail to the committee together with the
reasons why reconsideration is warranted. Approval of actions subject to Board review
requires an affirmative vote by a majority and actions not subject to Board review requires a
two-thirds vote of the full Committee in favor of both reconsideration and the suggested
alternative action.
r\teganhm\eityatty\history\Bpaws94.drf: Rev-8/94
League of California cities 1-4
The City Attorney's Desk600k
1994 Edition
(-6
Section I-League Structure and Organization 1-27
C. How to Seek Amicus Curiae Assistance
Requests for city ami assistance are evaluated in the first instance by the League's Legal Advocacy
Committee, a committee of 23 city attorneys from around the state. The committee's recommendations are
then considered by the League's board of directors. This section explains the League's polity onma ices
assistance and the kind of information the committee needs to evaluate a case.
1. Criteria for League Amicus Assistance
The League board of directors' policy diction to the committee is thatma icus assistance is authorized when
the outcome of the case will have major significance to cities in general. Major significance is to be
determined by the effect the case outcome could have on existing statutory or case law and in accordance
with the following guidelines:
• Whether the issue would have a statewide significance and is one in which all cities
have a common interest in the same outcome.
• Whether the issue would have a significant impact on a significant number of cities
which have a common interest in the same outcome and would not have a
foreseeable adverse impact on other cities
2. What the Committee Needs
To assist the committee in determining whether a case meets this criteria, please provide the committee with
the following information
• What are the issues in this case? If the case has been accepted for review by either
the California or United States Supreme Courts,what were the issues identified in
the petition for review or certiorari? Was review granted as to all of the issues or
just some (and which ones)?
• Why is this case of major significance to cities in general? What effect will it have
on statutory or case law?
• To the best of one's knowledge, is this a case which cities have a common interest
in the same outcome?
• What can an amicus brief joined by a number of cities add to the material which
the parties in the case will present to the court?
• If this is a request for support for California Supreme Court review, how are the
standards for review met? Seg Cal. R. Ct. 29(a). If decertification from
publication or certification for publication is an issue, how are the standards for
publication met or not met? See Cal. R. Ct.976(b).
League of California Cities The City Allornefs Nsirbook
IM Edition
1-5 e- -7
1-28 Section I.League Structure and Organi:etbn
• What is the actual or anticipated filing schedule in this case? Be aware the
League's process takes some time. If an amicus brief is being requested, the issue
goes to the Legal Advocacy Committee and court deadlines permitting, the
League's board of directors A volunteer/pro n amicus brief writer must be
recruited and then cities must be notified of the opportunity to add their names to
these briefs. Even when only a letter brief in support of review or decertification
from publication is at issue, it can take as long as two or three weeks to distribute
the materials and schedule a conference call among executive committee members.
• Who might be recruited as a=hilmma Icus brief writer?
This information may be provided in list form or in the form of a cover letter to the committee. In addition,
please provide a copy of any petition for review, court of appeal decision, trial court memorandum of
decision (as appropriate) and any other material which may assist the committee members in understanding
the issues and importance of this case. Please be selective, however. In consideration of the committee
members'volunteer efforts and the League's faxing and photocopying budget, materials going to the
committee should not exceed 15 pages total.
3. What Next?
Please send these materials to the member of the Legal Advocacy Committee for the area In which the can
arose. This individual will be responsible for presenting the case to the committee,.with a copy to League's
general counsel at the League's Sacramento office. A roster of committee members, along with their
addresses, telephone numbers and fax numbers is attached to each Legal Advocacy Report.
Please call the League's Sacramento office with any questions
For general information on amicus participation and the rales of court relating to such participation, the League
has prepared a guide which can be purchased from the League's publications unit for$5 for city officials and
$10 for all others. The guide reviews court rales, the philosophy of amicus briefs and has sample forms. To
order, call 916/444-5790 and ask for the League publications unit.
j:\lepl\hm\deskbk\acasst
League of California Cities The City Attorney's Desldtook
1991 Edition
1-6
C- O
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. League of California Cities
-�■�` 1400 K STREET • SACRAMENTO,CA 95814 • (916)658-8200
Cali/omia Cities
Work Together
Legal Advocacy Committee Report
May 1995' y�
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TIME SENSITIVE MATERIALS --
PLEASE REVIEW AND RESPOND IlVZMEDIATELY
CONTENTS
I. CASES IN WHICH CITIES ARE URGED TO JOIN AN AMICUS BRIEF
A. Constitutionality of Fee Requirements -- Ehrlich v. City of Culver City
B. Expansions of Non-conforming Uses -- Hansen Brothers Enterprises v Board of
Supervisors of Nevada County
C. Officials' Qualified Immunity from Suit -- Behrens v. Pelletier
D. Nuisance Abatement Efforts Related to Alcohol Retailers -- California Beverage
Retailers v. City of Oakland
E. Regulation of Water Softeners -- Water Oualitv Association, et al v City of Santa
Maria
F. Effect of Suspending Housing Element Mandate -- Harris v. County of Madera
G. Pre-Hiring Employee Drug Testing -- Loder v. City of Glendale .
H. Enforceability of Covenants, Conditions and Restrictions -- Citizens for Covenant
Compliance v. Anderson
I. Constitutionality of Bubble Ordinances -- Edwards v. City of Santa Barbara
Legal Advocacy Committee Report-May 1995 1
At,taclunelt 2 �— 6-9
CONTENTS (cont.)
H. INFORMATION ITEMS
III. LETTERS SENT
IV. NOTE ON CASE UPDATES
V. FOR INFORMATION ON REQUESTING AMICUS ASSISTANCE
The League of California Cities' Legal Advocacy Committee and Board of Directors have determined
the following cases are of statewide importance and merit cities'participation as amicus curiae. For
those briefs which have not already been filed, city attorneys are encouraged to take the steps
necessary to have their cities join in these briefs.
The membership of the Legal Advocacy Committee is listed on the last page of this report, along with
instructions for bringing other cases to the committee's attention. The committee's next meeting is
on June 30, 1995.
I. CASES IN WHICH CITIES ARE URGED TO JOIN AN AMICUS BRIEF
A. Ehrlich v. City of Culver City, 15 Cal. App. 4th 1737, 19 Cal. Rptr. 2d 468 (2d Dist.
1993), rev. denied (August 26, 1993), remanded, _ U.S. _, 114 S. Ct. 2731, 62
U.S.L.W. 3853 (June 27, 1994), rev. granted (March 17, 1995).
1. Case Description
The controversy in this case surrounds the validity of-the city's art-in-public-
places program as well as a recreational facilities mitigation fee. The case has
been decided in the city's favor, however the city finds itself defending its
victory before the California Supreme Court.
One of the issues before the court is the constitutional standard by which these
types of exactions should be judged. Property rights-types are arguing the
standard should be judged be the stricter standard recently enunciated by the
United States Supreme Court in Dolan v. City of Tigard. _ U.S. _, 114 S.
Ct. 2309, 129 L. Ed. 2d 304 (1994).
In Dolan. the high court required an "essential nexus" between a legitimate
state interest and a permit condition. The court also required the relationship
2
2-2 Legal Advocacy Committee Report-May 1995
C- 6 io
between the exaction and the projected impact of the proposed development to
be "roughly proportional," in terms of its nature and extent, to the impact of the
proposed development.
Dolan involved a requirement a property owner dedicate property to the city as
a condition of city approval. Ehrlich involves fee issues.
2. Timeline
Please contact the brief writer by June 23 about adding on to the brief.
3. Brief Writer
Andrew Schwartz
Deputy City Attorney, San Francisco
1200 3rd Avenue, Suite 1200
San Francisco, CA 94102
415/554-3906
B. Hansen Brothers Enterprises v. Board of Supervisors of Nevada County 30 Cal. App.
4th 23, 35 Cal. Rptr. 2d 358 (November 1994), rev. granted (February 16, 1995).
1. Case Descrivtion
This is an interesting case involving the interplay between a property owner's
right to use (and use up) his property and a public agency's ability to adopt
zoning ordinances restricting that right. The case arises in the Sierra foothills
and involves a rock mining operation. The county adopted land use restrictions
which prohibited such mining, but made the existing mining operation a non-
conforming use.
The mine owner prepared a reclamation plan which contemplated a substantial
increase in the volume of materials mined and changed the location of the
mining efforts. The county objected to the expansion of the non-conforming
use. In upholding the county's objection, the court of appeal majority found
the board of supervisors properly disallowed the intensification of that use.
2. Timeline
Please contact the brief writer as soon as possible about adding on to this case.
2-3
legal Advocacy Committee Report-May 1995 3
3. Brief Writer
Andrew Arczynski
City Attorney, Irwindale
Markman, Arczynski, Hanson & King
Number One Civic Center Circle, 2nd Floor
Brea, CA 92621
714/990-0901
C. Behrens v. Pelletier. 968 F.2d 865 (9th Cir. 1992), cert. granted (1995).
1. Case Description
This is a case before the United States Supreme Court. At issue is a public
official's ability to appeal more than one pre-trial ruling denying the public
official's assertion to qualified immunity from suit. The doctrine of "qualified
immunity" shields public officials from civil damages as long as their actions
could have reasonably been thought consistent with the rights the officials are
charged with violating. See Anderson v. Creighton, 483 U.S. 635, 638 (1987).
In this case, the local federal appellate court has imposed basically a 'one bite
of the apple" rule that allows public officials to appeal a court ruling against
the existence of qualified immunity only once. The United States Supreme
Court has agreed to take a look at the issue.
2. Timeline
Please contact the brief writer by July 10 about adding on to this brief.
3. Brief Writer
G. Scott Emblidge
Deputy City Attorney, San Francisco
1390 Market Street, 5th Floor
San Francisco, CA 94102
415/554-4264
D. California Beverage Retailers v. City of Oakland, No. A068638 (1st Dist.).
1. Case Description
This is a challenge to a city's authority to impose public nuisance-related
standards on existing alcoholic beverage retailers. The city also imposed a fee
on all alcohol retailers to fund enforcement efforts.
4
2-4 Legs)Advocacy Committee Report-May 1995
The retailers and their association challenged the ordinance in several respects.
Now before the court of appeal is the issue of whether state law relating to
alcohol regulation preempts the city's efforts. The retailers' basic argument is
the restrictions will put them out of business and therefore "regulates the sale"
of alcohol.
2. Timeline
Please contact the brief writer by June 10 about adding on to this brief.
3. Brief Writer
John Fellows
City Attorney, Torrance
3031 Torrance Boulevard
Torrance, CA 90503
310/618-5810
E. Water Ouality Association, et al..v. City of Santa Maria No. SM 076130 (Santa
Barbara County Superior Ct. November 30, 1994).
1. Case Description
This is another case in which a city has been challenged after having
undertaken to regulate residential water softeners for water quality reasons.
The city was under order by its regional water quality control board to reduce
the amount of brine discharged into its wastewater system. The brine makes it
difficult for the city to meet the standards for total dissolved solids in the
reclaimed water produced by the system. The city therefore enacted an
ordinance prohibiting the discharge of brine from residential water softening
systems or devices into the city's system.
A water softening industry association has challenged the city's ordinance,
claiming among other things that it violates state law. The city argues its
ordinance is not inconsistent with state law because it allows alternative kinds
of water softening systems.
2. Timeline
No briefing schedule has been set yet. Please contact the brief writer by July 1.
LnW Advocacy Committee Report-May 1993 5
2-5
3. Brief Writer
Celia Brewer
Brown, Diven and Hentschke
12770 High Bluff Drive, Suite 240
San Diego, CA 92130
619/456-1915
F. Hams v. County of Madera. 5 Civil No. F020495 (5th Dist.).
1. Case Description
The controversy in this case concerns the effect of the legislature's having
"suspended" state mandates through state budget process. Specifically, the
issue related to the effect of such suspensions on local governments' obligations
to comply with those mandates. The mandate in question in this case relates to
housing element revisions.
2. Timeline
The appeal will be argued June 13, so please fax or mail letters seeking
joinder as soon as possible.
3. Coordinator for Joinder Effort
Michael Colantuono
City Attorney, Cudahy
Richards, Watson & Gershon
333 South Hope Street, 38th Floor
Los Angeles, CA 90071
213/626-8484
FAX 213/626-0078
G. Loder v. City of Glendale 5043548; 28 Cal. App. 4th 796, 34 Cal. Rptr. 2d 94, 94
Daily Journal D.A.R. 13519 (2d Dist. September 26, 1994), modified upon denial of
reh'g, 29 Cal. App. 4th 489d (2d Dist. October 20, 1994), rev. gLanted 95 Daily
Journal D.A.R. 2096 (February 16, 1995).
1. Case Description
The controversy in this case concerns the validity of city's pre-employment and
pre-promotional drug and alcohol testing program. The city's policy provides
for testing for every city position on the theory each and every city employee
affects the public health, safety, welfare, benefits, morals or fisc. The appellate
court did not buy into this theory, finding drug testing is valid only with
6
Legal Advocacy Committee Report-May 1995
2-6 C G _/�1
respect to positions whose duties involve "some special and obvious physical or
ethical demand" and a compromise of the employee's ability to meet such
demands could have an "immediate disastrous consequence" on the public
safety or security.
With respect to even these positions, the court said testing may be required
only a) upon initial employment in the job category, whether by hire or
promotion, and b) after a job offer has been made, and c) if the test does not
require disclosure of medical history information in violation of the Americans
with Disabilities Act, and d) if the testing is done in a way which does not
unnecessarily intrude on personal privacy, and e) an initial positive test is
confirmed by a second test regarded as reliable by the relevant scientific
community.
2. Timeline
Please contact the brief writer by June 30 about adding on to the brief.
3. Brief Writer
Lawrence Newberry
City Attorney's Office, Pasadena
100 North Garfield, Room 228
Pasadena, CA 91109
818/4054141
H. Citizens for Covenant ComR,liance v. Anderson, 29 Cal. App. 4th 490, 34 Cal. Rptr.
2d 523 (1st Dist. October 20, 1994), rev. granted (February 16, 1995).
1. Case Description
The controversy in this case surrounds what must happen to be able to enforce
conditions, covenants and restrictions (CC&Rs) relating to subdivisions. The
CC&Rs at issue in this particular case require lots in a subdivision to be used
only for residential purposes; one property owner is presently using the
property for commercial purposes.
The neighbors are suing to enforce the CC&Rs, the property owner is
contending that previous recordation of the CC&Rs with the subdivision map
was not sufficient and there must be some mention of the CC&Rs in the grant
deed for the CC&R's to be enforceable. The court of appeal ruled in favor of
the property owner; the neighbors have sought and received California Supreme
Court review.
t4d Advoncy Committer Report-May 1995 7
2-7
�'-
2. Timeline
Please contact the brief writers as soon as possible about adding on to the brief.
3. Brief Writers
David Aleshire/Elizabeth Hanna Dixon
City Attorneys, Palm Springs, Signal Hill, Lawndale, West Covina,
Canyon Lake and Twentynine Palms
Rutan and Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92628
800/767-8826
I. Edwards v. City of Santa Barbara No. CV 94-2243 RG(Jrx) (9th Cir.).
1. Case Description
This is a constitutional challenge to the City of Santa Barbara's "bubble"
ordinance. The ordinance bans certain activities (protesting, picketing,
distributing literature, and engaging in oral or silent protest, education or
counseling efforts) within an eight foot area around a driveway to a clinic or
place of worship. The ordinance also forbids an individual from impeding
access to such facilities by refusing to back off to eight feet away from a
person when the person so requests. This latter provision is effective within
one hundred feet of an access area to a clinic or place of worship.
The city enacted the ordinance in response to complaints protesters were
disrupting traffic, impeding access and confronting patients and staff at a local
Planned Parenthood clinic. Critics of the ordinance argue it impairs their first
amendment rights. A federal district court agreed with the critics and has
preliminarily ordered the city to stop enforcing the ordinance. The city of
Santa Barbara is seeking relief from the Ninth Circuit Court of Appeals.
2. Timeline
Please contact the brief writer as soon as possible about adding on to the brief.
3. Brief Writer
Glenn Schwartzbach
Deputy City Attorney, San Jose
151 West Mission Street
San Jose, CA 95110
408/277-2427
8 Legal Advocacy Committee Report-May 1995
J. California Federal Savings and Loan Association v. City of Los Angeles 29 Cal. App.
4th 1222, 34 Cal. Rptr. 2d 879, 94 Daily Journal D.A.R. 15199 (2d Dist. October 27,
1994), rev. rg anted 95 Daily Journal D.A.R. 2092 (February 16, 1995).
1. Case Description
A court of appeal has expressly declined to follow precedent and decided
public agencies must pay ten percent interest on judgments. The judgment in
question was a refund business license taxes paid by a savings and loan. The
court concluded Code of Civil Procedure section 658.010, which sets the ten
percent rate, applies. The court reached this conclusion even though other
courts of appeal have concluded seven percent is the appropriate figure, on the
Civil Procedure Code section does not apply to local public agencies. See Cal.
Gov't Code § 970.1(b).
2. Timeline
The California Supreme Court granted review back in February; please contact
the brief writer as soon as possible about adding on to this brief.
3. Brief Writer
Elizabeth Hanna Dixon
City Attorney, West Covina, Canyon Lake and Twentynine Palms
Rutan and Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92628
800/767-8826
H. INFORMATION ITEMS
A. American Airlines v. San Mateo County, No. SO44279, 30 Cal. App. 4th 837, 36 Cal.
Rptr. 2d 168 (1st Dist. November 30, 1994), rev. granted 95 Daily Journal D.A.R
2742 (March 2, 1995).
In this case, airlines are challenging their property tax assessments. The airlines
contend eighteen counties (San Mateo, Alameda, Fresno, Kern, Los Angeles,
Monterey, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Joaquin,
Santa Barbara, Santa Clara, El Dorado, Humboldt, Contra Costa and Solano) are
assessing taxes in violation of federal law (the Airport and Airway Improvement Act
of 1982, 49 U.S.C. § 40116(d)).
Specifically, the airlines are unhappy that most commercial and industrial property is
assessed at amounts substantially below the fair market value of that property and their
property is assessed at closer to the fair market value. The court of appeal found this
LcVd Advocacy Committee Report-May 1995 9
2-9 C- 6-17
— / /7
does not matter; federal law applicable to airlines does not create a basis for claiming
tax discrimination. The California Supreme Court has granted review.
B. City of Barstow v. Ludwig, No. 255017 (4th Dist.).
This case involves competing shopping malls in Barstow and Hesperia. One developer
(the Hesperia developer) attempted to kill the competing mall in Barstow by a variety
of means, including but not limited to filing a California Environmental Quality Act
challenge to the city of Barstow's action in approving the project.
In turn, the city of Barstow and its shopping mall developer sued the Hesperia
developer alleging, among other things, interference with business advantage. The
Hesperia developer is defending its actions by arguing the city's suit is barred by
recent amendments to state law relating to so-called SLAPP suits. See Cal. Civ. Proc.
Code § 425.16. The law protects citizens' right to free speech and to petition
government. One of the issues in this case is whether this new law applies to suits
brought by cities.
C. San Francisco Police Officers' Association Local 911 v City and County of San
Francisco, 29 Cal. App. 4th 648, 30 Cal. App. 4th 770B, 34 Cal. Rptr. 2d 830 (1st
Dist. October 24, 1994), rev. granted and cause transferred _ Cal. 4th _, 37 Cal.
,Rptr. 2d 580 (January 19, 1995).
At issue in this case is the relationship of the Meyers-Milias-Brown Act (relating to
public employee collective bargaining) and charter provisions relating to voters' right
to approve changes in city employee pension plans. The unions are arguing the
MMBA preempts local voters from reserving control over pension and other benefits.
Both parties are expected to seek California Supreme Court review of any adverse
decision.
D. California Democratic Party et al v Lun ren No. C 94-1703 (N.D. Cal. August 5,
1994).
This case (discussed at the last board meeting) involves a challenge to the
constitutionality of article II, section 6(b) of the California Constitution (requiring that
all judicial, school and local offices be non-partisan and providing that political parties
cannot endorse, support or oppose a candidate for non-partisan office). A federal trial
court ruled, in the context of a request for a preliminary (temporary) injunction that
political parties should be allowed to endorse candidates for non-partisan office
(judicial, school, county and city offices). The preliminary injunction restrained the
state from enforcing the proscription against party endorsement in the fall 1994
elections. The court determined the state constitutional ban on such endorsements
raises serious first amendment issues.
10 legal Advocacy Committee Report-May 1995
2-10
C l8'
The League is in contact with the Attorney General's office about the factual support
for the constitutional provision. Cities who are interested or can contribute to this
effort are urged to contact John Fellows, City Attorney, Torrance, at 310/618-5810.
III. LETTERS WRITTEN
A. People v. Gonzalez, 32 Cal. App. 4th 533, 38 Cal. Rptr. 2d 235 (2d Dist. February 17,
1995).
This case is a challenge to Los Angeles' gang abatement efforts. A suspected gang
member was charged with criminal contempt for violating the provisions of the gang
abatement injunction the city obtained from a superior court. The suspected gang
member defended by arguing the injunction was invalid. The question was: in what
court could the injunction be challenged?
The municipal court presiding over the contempt proceedings concluded it did not have
jurisdiction to rule on the validity of an injunction issued by the superior court.
Similarly, the appellate division of the superior court concluded it too was without
authority to review the validity of the injunction.
Concluding the defendant should be able to challenge the injunction in the contempt
proceeding, the court of appeal carved out an exception to the statutory mandate that
municipal courts have jurisdiction over misdemeanor actions. Despite legislatively-
prescribed jurisdictional requirements, the court bestowed upon the superior court
exclusive jurisdiction to hear criminal contempt proceedings to enforce injunctions that
it issues.
The city attorney's office in San Jose volunteered to write the letter; the letter was
filed the week of April 17.
B. Los Osos Valley Associates v. City of San Luis Obispo, 30 Cal. App. 4th 1670, 36
Cal. Rptr. 2d 758 (2d Dist. December 20, 1994), rev. denied (March 23, 1995).
In this case, shopping mall owners successfully sued a city for damage caused to mall
structures caused by subsidence which, in turn, was caused by the city's groundwater
pumping program. The court rejected the city's argument the case should be analyzed
according to constitutional provisions relating to competing beneficial uses of water; it
also gave short shrift to the argument the mall owners "unreasonably" used the water
in the ground under its buildings to support its buildings. See Cal. Const. art X, § 2.
Instead, the court found the city liable for having physically damaged the buildings by
removing part of the underground support system. The court said the city's actions
were not justified by an emergency exercise of police powers. See Cal. Const. art. 1,
§ 19. The court found no factual evidence an emergency existed and attributed the
decision to a "political" choice to not impose strict conservation measures.
Legal Advocacy Committee Report-May 1995 ](1
2-11
The executive committee sent a letter in support of California Supreme Court review;
unfortunately, the request to the committee was too late to also ask for decertification
from publication. The letter supporting review was written on a volunteer basis by the
law firm of Hatch and Parent in Santa Barbara. The letter was unsuccessful and the
adverse decision stands.
C. State of California v. Sonoma Superior Court, 32 Cal. App. 4th 325, 39 Cal. Rptr. 2d
1, 95 Daily Journal D.A.R. 2046 (1st Dist. January 23, 1995).
This case arose out of an accident involving a motor bike, a horse and its rider and a
publicly-owned trail. The injured equestrian argued a combination of natural
conditions and third party conduct (the motor bike rider) creates an exception to
governmental immunities principles. The court of appeal rejected this argument.
The committee voted to support publication of the favorable decision; the decision was
in fact published.
D. Stubblefield Construction Co., et al. v. City of San Bernardino, 32 Cal. App. 4th 687,
38 Cal. Rptr. 2d 413, 95 Daily Journal D.A.R. 2418 (4th Dist. January 27, 1995), rev.
denied April 20, 1995.
'In this case, a court of appeal rejected a developer's claim a city violated his
constitutional rights by manipulating city processes and procedures. In a nutshell, the
developer's beef was the city changed the requirements applicable to his project over a
period of some 20 years such that his project was no longer feasible. The court found
the developer had no vested right to build his project because he had not applied for or
received a building permit; the court also found the developer had no vested right to
develop the project in accordance with the zoning in effect at the time he submitted
plans for review.
According to the court, city officials had not acted in an arbitrary or irrational manner;
instead, the record showed the city was merely responding to citizen concerns about
the project and exercising its right to amend its zoning laws.
The committee voted to support publication because the case has a helpful summary of
the law which applies to these kinds of claims; the decision was in fact published.
California Supreme Court review has been denied; the developer is taking his case to
the United States Supreme Court
E. Burchett v. City of Newport Beach, 33 Cal. App. 4th 1472, 40 Cal. Rptr. 2d 1 (4th
Dist. March 10, 1995).
This case involves a number of interesting issues, including a) circumstances under
which a plaintiff can use substitute service on elected officials (that is, simply leaving
the summons and complaint with the city clerk); and b) circumstances under which
12 Legal Advocacy committee Report-May 1995
2-12 e- � -�v
assistant city planner's representations relating to non-conforming use will bind the
city. The court of appeal resolved these issues in favor of the city and its officials.
The executive committee voted to seek publication because the case favorably resolved
the legal issues in a way not reflected in other published court of appeal decisions.
The letter seeking publication was written by Rourke, Woodruff and Spradlin in
Orange County. The decision has been published.
F. Hill v. City of Lone Beach, _ Cal. App. 4th _, 40 Cal. Rptr. 2d 125 (2d Dist.
March 14, 1995).
This is a personnel case in which a city employee is suing the city for eliminating his
position. The employee was one of the assistant directors for the city's port. The
employee sued the city for breach of contract and breach of the covenant of good faith
and fair dealing. The issues in the case relate to whether public employees can bring
claims for wrongful termination like those brought by private sector employees. The
court of appeal resolved these issues in favor of the city in an unpublished decision.
The committee voted to ask for publication of-the favorable decision. The board
approved friend-of-the-court participation in early 1994. The brief was written by the
city attorney's office in Escondido; however the court did not accept the brief (since it
is under no obligation to hear from non-parties in an action). This was the first time
this happened.
Happily, however, the court nonetheless issued a favorable ruling and the city
attorney's office in Escondido volunteered to write the letter seeking publication. The
decision has been published.
IV. NOTE ON CASE UPDATES
For information on the resolution of cases which have been the subject of amicus assistance
by the League, please see the monthly "Legal Notes" column in Western City magazine.
Because of the publication schedule, there is approximately a two-month delay between a case
being reported in the advance sheets and a description being published in the "Legal Notes"
column.
V. FOR INFORMATION ON REQUESTING AMICUS ASSISTANCE
If you are aware of appellate court litigation which may be of interest to cities, please call
JoAnne Speers at the League of California Cities, 916/658-8233. If you get voice mail
(which may happen every once in awhile), please leave a fax number so the League can fax
you information on what the committee needs to know about the litigation to evaluate it for
potential amicus assistance. The next committee meeting is June 30; materials go to the
committee for their review on June 15.
g:VegalWnUaevep ts\May5.95
Legal Advomey Committee Report-May 1995 2-13
_13 13
Cr 6-a2/
LEGAL ADVOCACY COMMITTEE
CENTRAL VALLEY DIVISION• MONTEREY BAY DIVISION" SAN DIEGO COUNTY DMSION••
Michael Millich William B.Conners David R.Chapman
City Attorney,Modesto City Attorney,Monterey Executive Committee
801 11th Strect/P.O. Box 642 399 Madison Street City Attorney, Escondido
Modesto, CA 95353 Monterey,CA 93940 201 North Broadway/Civic Center Plaza
209/577-5284 4081646-3915 Escondido, CA 92025
FAX 209/544-8260 FAX 408/373-1634 619/7414608
FAX 6191741-7541
CHANNEL COUNTIES DIVISION" NORTH BAY DMSiON•
Peter N. Brown Charles O.Lamoree SO. SAN JOAOUiN VALLEY DWI [ON*
Ckair and Executive Committee City Attorney,Vacaville [vacant]
City Attorney,Carpinteria 650 Merchant Street
21 E. Carrillo Street Vacaville,CA 95688
Santa Barbara,CA 93101 707/449-5105
805/963-9231 FAX 707/449-5149
FAX 805/9654333 FAX
ORANGE COUNTY DIVISION*
DESERT MOUNTAIN DMSiON• Lois E.Jeffrey CITY OF LOS ANGELES(permanent)
James Markman Ewcuttve Committee Pedro B.Echeverria
City Attorney,Hesperia City Attorney,Laguna Hills Sr. Assistant City Attorney,Los Angeles
Number One Civic Center Circle,2nd Floor 701 South Parker Street,Suite 7000 [For James Kenneth Hahn,City Attorney]
Brea,CA 92621 Orange,CA 92668 200 N. Main St./1800 City Hall East
714/990-0901 714/558-7000 Los Angeles,CA 90012
FAX 714/990-6230 FAX 714/835-7787 213/485-5412
FAX 213237-0399
EAST BAY DIVISION• PENINSULA DIVISION**
Michelle Marchetta Kenyon Ariel Pierre Calonne CITY OF SAN DIEGO(permanent)
Executive Committee Executive Committee Eugene P. Gordon or C.Alan Sumption
City Attorney,Momga City Attorney,Palo Alto Executive Committee
1999 Harrison Street, Suite 1300 250 Hamilton Avenue Chief Deputy City Attorney
Oakland, CA 94612 Palo Alto,CA 94301 [For John Witt,City Attorney]
510/444-7372 415/329-2171 1200 3rd Avenue,Suite 1200
FAX 510/839-9104 FAX 415/329-2646 San Diego,CA 92101
619/533-5800
IMPERIAL CQUNITf DIVISION• REDWOOD EMPIRE DIVISION•• FAX 619/533-5847
James Darrow Kenneth Wilson
City Attorney,EI Centro City Attorney,Cloverdale,Clearlake, CITY OF SAN FRANCISCO(permanent)
1275 Main Street(P.O. Box 2039 Healdsburg&Sonoma Burk Delventhal
EI Centro,CA 92244-2039 555 5th Street,Suite 230 Executive Committee
619/3374535 Santa Rosa,CA 95401 Chief Deputy City Attorney U
FAX 619/352-2246 707/545-8009 1390 Market Street, 5th Floor
FAX 707/545-6617 San Francisco,CA 94102
INLAND EMPIRE DMSiON•• 415/554-4233
John F. Wilson SACRAMENTO VALLEY DMSION•• FAX 415/554-4248
City Attorney,Banning Dennis Crabb
99 E. Ramsey City Attorney,South Lake Tahoe and Truckee CITY OF SAN JOSE(permanent)
Banning,CA 92220 1052 Tata Lane Joan Gallo
909/922-0306 South Lake Tahoe,CA 96150-6324 City Attorney,San Jose
FAX 909/922-0433 916/542-6040 151 West Mission Street
FAX 916/544-8657 San Jose,CA 95110
LOS ANGELES COUNTY DMSION• 408/277-4454
John L. Fellows IB FAX 408277-3159
City Attorney,Torrance • Appointed in July of even-
3031 Torrance Boulevard numbered years.
Torrance,CA 90503 •• Appointed in July of odd-
310/618-5810 numbered years.
FAX 310/618-5813
LEAGUE STAFF: JoAnne Speers,General Counsel,916/658-8233;Helen Marshall,916/658-8231;FAX 916/658-8240;
League of California Cities, 1400 K Street,4th Floor,Sacramento,CA 95814
Ex Officio: (City Attorneys'Department Officers)
PRESIDENT IST VICE PRESIDENT 2ND VICE PRESIDENT DIRECTOR
Manuela Albuquerque Daniel S. Hentsehke Thomas R.Curry Lynn McDougal
City Attomey,Berkeley City Attorney,Oceanside and Solana City Attomey,Livermore City Attorney,EI Cajon and
2180 Milvia Stteet Beach 1052 South Livermore Avenue Imperial Beach
Berkeley,CA 94704 12770 High Bluff Drive,Suite 240 Livermore,CA 94550-4899 460 N. Magnolia Avenue
510/644.6380 San Diego,CA 92130 510/373-5120 P.O. Box 1466
FAX 510/6448641 619/456-1915 FAX 510/373-5125 EI Cajon,CA 92020
FAX 619259-0292 619/440 4444
FAX 619/440-4907 �-42
2-14
j:\Iegal\hm\lac\doc\roster.95
Rev: May 17, 1995
RESOLUTION NO. (1995 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO ESTABLISHING A POLICY REGARDING AMICUS CURIAE
(FRIEND OF COURT) PARTICIPATION
WHEREAS, the City is frequently requested to join as Amicus
Curiae (Friend of Court) in cases of statewide significance to
Cities; and
WHEREAS, because of the often short time limits for filing an
Amicus Curiae brief, it is not practical to place these matters on
the City Council agenda for consideration; and
WHEREAS, the City Attorney's Department of the League of
California Cities has established a Legal Advocacy Committee to
review requests to join as Amicus Curiae and makes recommendations
regarding cases of statewide significance in which Cities should
join;
NOW, THEREFORE, BE IT RESOLVED, by the City Council that the
following policy regarding Amicus Curiae (Friend of Court)
participation is hereby established:
It is the policy of the City Council that the decision whether
the City will participate as Amicus Curiae in any legal action in
which the issues raised may be significant to the City shall be
made as follows:
1. For cases in which participation by all cities is urged
by the Legal Advocacy Committee of the League of
California Cities, the decision regarding participation
may be made by the City Attorney, if there is no cost to
the City to participate.
Attachment 3
Resolution No. (1995 Series)
2 . For cases in which participation by interested cities is
recommended by the Legal Advocacy Committee of the League
of California Cities, the decision regarding
participation may be made by the Mayor and City
Administrative Officer upon a recommendation by the City
Attorney, if there is no cost to the City to participate.
3. For all other cases, the decision regarding participation
shall be made by the City Council upon recommendation by
the City Attorney.
Upon motion of seconded by
and on the following roll call vote:
AYES:
NOES:
ABSENT:
the foregoing resolution was adopted this day of
1995.
Mayor Allen K. Settle
ATTEST:
Diane R. Gladwell, City Clerk
APPROVED AS TO FORM:
t tto n
3_2