Vol. 41, Nos. 1 & 2
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MCLE Self-Study Article
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By Isra Shah
Isra Shah serves as Interim City Attorney to the City of Buena Park and Deputy City Attorney to the City of Upland. She received her JD at the University of California, Irvine School of Law, where she was a member of the inaugural class, and practices law in the Orange County and Los Angeles offices of Richards, Watson and Gershon.
On January 1, 2018, Senate Bill (“SB”) 54 became effective. The key part of this legislation enacted the California Values Act, which is codified at Government Code Section 7284 et seq. SB 54 is intended to limit the involvement of state and local law enforcement agencies in federal immigration enforcement efforts. The Legislature declared the following purposes for doing so: “to ensure effective policing, to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments.” What followed was a (perhaps predictable) assertion of preemption rights by the federal government, and (perhaps less predictable and rather remarkable) pushback from local agencies about their own communities’ right to determine policing methods, public safety measures, and the use of resources.
Two months later, the U.S. Department of Justice (“DOJ”) filed a complaint against the State of California over, amongst other immigration-related laws, the California Values Act, on the basis that its provisions are preempted by federal law. Shortly thereafter, the City of Los Alamitos adopted an ordinance purporting to exempt itself from the California Values Act on the grounds that SB 54 conflicts with the U.S. Constitution. Los Alamitos also indicated its intent to file an amicus brief in support of the DOJ in the litigation against the State. In April, amidst a cascade of cities and counties taking formal positions on SB 54, the City of Huntington Beach filed its own complaint against California, asserting its right to govern its own municipal affairs (including its police department), under the power granted to charter cities by the California Constitution.
The purpose of this article is to describe: 1) the constitutional framework for analyzing the SB 54 legislation; 2) California’s attempt to craft the legislation in a way that fits this constitutional framework; 3) the various arguments made by the DOJ, Los Alamitos, and Huntington Beach asserting that SB 54 is unconstitutional; and 4) the implications of California’s decision to regulate localfederal cooperative agreements on topics extending beyond immigration.
II. Constitutional Framework
The litigation surrounding SB 54 collectively depends on an analysis of a number of constitutional principles, which are summarized as follows:
III. Overview of SB 54
SB 54 places significant new restrictions on when and how California law enforcement agencies cooperate with immigration authorities. California generally takes the position that SB 54 simply directs the expenditure of police resources, a subject of local control, away from federal immigration efforts. It further takes the position that SB 54 protects the civil rights of California residents. Among other things, the statute specifically prohibits California law enforcement agencies from performing the following activities:
In addition, Section 7284.6(a) bars California law enforcement agencies from placing peace officers under the supervision of federal agencies, and from employing peace officers who have been deputized as special federal officers or special federal deputies for purposes of immigration enforcement. The statute also bars California law enforcement agencies from using immigration authorities as interpreters for law enforcement matters relating to individuals in custody. Finally, law enforcement agencies are barred from contracting with the federal government to house federal detainees and from providing office space for exclusive use by immigration agents.
Section 7284.6(b) provides limited exceptions to these prohibitions. One exception is that a California law enforcement agency is not precluded from responding to a request for information about a specific person’s criminal history, as accessed through the California Law Enforcement Telecommunications System (CLETS). Another exception allows an agency to participate in joint law enforcement task forces with the federal government if the following criteria are satisfied: (i) the task force’s primary purpose is not immigration enforcement; (ii) the enforcement or investigative duties are primarily related to a violation that is unrelated to immigration enforcement; and (iii) participation in the task force does not violate a local law or policy.
Notably, the SB 54 legislation is not the first time that California acted to regulate law enforcement agencies’ cooperation with immigration authorities. In 2013, the Legislature enacted Assembly Bill (“AB”) 4, known as the Trust Act, to address when law enforcement agencies may continue to detain an individual pursuant to a hold request from federal immigration authorities. AB 4 limited the time a law enforcement agency could continue to detain an individual to 48 hours, and only if certain criteria were met, including that the individual had been convicted of certain types of felonies. The latest limitation on law enforcement’s discretion to respond to a notification request revises the 48hour rule imposed by the Trust Act. The Trust Act did not result in litigation brought by any local agency.
IV. Associated Litigation
On March 6, 2018, the U.S. Department of Justice filed a complaint in the United States District Court for Eastern District of California, seeking to invalidate and enjoin enforcement of certain provisions of California law, including the California Values Act. The complaint generally alleges that the California laws violate the Supremacy Clause and the provisions of a federal statute, 8 U.S.C. Section 1373 (“Section 1373”). That section generally provides that a government entity or official may not prohibit or restrict any other government entity or official from sending to or receiving from the Immigration and Naturalization Service information regarding an individual’s citizenship or immigration status, or from maintaining and/or sharing the information with other government entities.
B. Los Alamitos
On March 19, 2018, the City of Los Alamitos approved, by a 4-1 vote, the first reading of an ordinance declaring its itself “exempt” from SB 54. Authored by Los Alamitos’ Mayor Pro Tem, the agenda report for the ordinance asserted that: 1) SB 54 is contrary to the U.S. Constitution and/or federal law; 2) this conflict between the U.S. Constitution and the California Constitution must be resolved in favor of the U.S. Constitution; and 3) failure to favor the U.S. Constitution/federal law in this scenario constitutes a violation of a city councilmember’s oath to support and defend the U.S. Constitution. On April 18, 2018, the Los Alamitos City Council, after four hours of public comment, approved the ordinance on second reading on a 4-1 vote. In doing so, Los Alamitos took the unusual step of “opting out”, without city attorney input, of the SB 54 legislation rather than challenging some or all of its provisions in court.
In addition to adopting the ordinance, the Los Alamitos City Council decided at its March 19, 2018 meeting to file an amicus brief in support of the DOJ in its litigation against the State of California.
C. Huntington Beach
On April 4, 2018, the City of Huntington Beach took a different approach in response to SB 54. Rather than join the existing federal litigation brought by the DOJ, and rather than declare itself “exempt” from the legislation, Huntington Beach filed a Petition for Writ of Mandamus and Complaint for Declaratory and Injunctive Relief against the State of California in the Orange County Superior Court. Huntington Beach generally alleged that:
V. Constitutional Issues
A. Supremacy Clause vs. Tenth Amendment considerations
At the heart of the issues surrounding the SB 54 legislation in the DOJ case is the boundary line between the federal government’s immigration powers and California’s powers under the Tenth Amendment to establish and enforce laws protecting the welfare, safety, and health of the public.
On one side is the argument that SB 54 is a proper exercise of a state’s authority to determine how to expend law enforcement resources. To that end, in Printz v. United States, the U.S. Supreme Court struck down certain provisions of a federal law that required local law enforcement officers to conduct background checks prior to the sale of firearms. The U.S. Supreme Court ruled that, under the Tenth Amendment, the federal government may not “commandeer” states into becoming the enforcement agents of federal law.
On the other side is the issue of whether SB 54 actually thwarts federal enforcement of immigration laws. SB 54 acknowledges and explicitly authorizes compliance with all aspects of Section 1373, the federal statute prohibiting restrictions on the flow of information regarding individuals’ legal status amongst government agencies. In response to the DOJ’s argument in a related litigation that SB 54 itself violates Section 1373, California has argued that the Tenth Amendment prevents Section 1373 from being constitutionally enforced against state statutes.
In Arizona v. United States, the State of Arizona enacted legislation requiring registration of immigrants and authorizing officers to arrest without a warrant a person “the officer has probable cause to believe has committed any public offense that makes the person removable from the United States.” The U.S. Supreme Court held that the legislation was preempted by the removal system created by Congress. In doing so, the Court acknowledged that federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer, but the Court concluded that the Arizona statute attempted to provide state officers even greater authority than Congress had given to trained federal immigration officers. The Court thus found that Arizona’s action violated the Supremacy Clause of the U.S. Constitution.
SB 54 is essentially the “mirror image” of the Arizona legislation. While Arizona afforded its law enforcement officers with responsibilities that belonged to federal immigration authorities, SB 54 directs law enforcement to take only the minimum action with respect to immigration enforcement required under federal law. Whether this distinction is enough for a court to uphold the SB 54 legislation is an issue that will be decided in the DOJ case. The recent attention to SB 54 following Los Alamitos’s decision to adopt its exemption ordinance resulted in the filing of dozens of amicus briefs on behalf of individuals, public officials, advocacy groups, cities, and states in just the initial stages of the DOJ litigation. Ultimately, the issue will likely be resolved by the U.S. Supreme Court.
B. Matters of Statewide Concern vs. Municipal Affairs
While the DOJ litigation against the State of California tests the boundary line between the federal and state governments’ respective sovereign powers, the Huntington Beach litigation will test the boundary line between California’s ability to regulate matters of statewide concern and charter cities’ authority to manage their own municipal affairs.
Notably, Huntington Beach elected to challenge SB 54 by pointing to Article XI, Section 5 of the California Constitution. The California Constitution provides that cities that adopt their own charter have supreme authority over municipal affairs. With respect to municipal affairs, charter cities’ laws supersede other inconsistent laws. And, although the term “municipal affairs” is undefined, certain “core” categories, including the regulation of a city’s police force, are generally considered municipal affairs. Accordingly, Huntington Beach alleged that because SB 54 regulates the circumstances in which local police may work with federal authorities, Huntington Beach’s ability to regulate its police force is impaired, in violation of the California Constitution.
Whether the SB 54 legislation properly applies to charter cities will be determined by the court through a four-part inquiry:
“First, a court must determine whether the city ordinance at issue regulates an activity that can be characterized as a “municipal affair.” Second, the court “must satisfy itself that the case presents an actual conflict between [local and state law].” Third, the court must decide whether the state law addresses a matter of “statewide concern.” Finally, the court must determine whether the law is “reasonably related to…resolution” of that concern and “narrowly tailored” to avoid unnecessary interference in local governance. “If … the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution [and not unduly broad in its sweep], then the conflicting charter city measure ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.”
Although the focus of the court’s inquiry will be the regulation of police versus cooperation with federal authorities with respect to immigration enforcement, the court’s decision in this area may have far-reaching consequences for cities.
VI. Implications and Conclusion
The DOJ and Huntington Beach cases will clarify the appropriate constitutional limitations of federal, state, and local governments with respect to federal immigration enforcement. For cities, the outcome of the cases may soon become instructive in responding to future legislation that extends beyond the topic of immigration. Already, one proposed bill, AB 1578, sought to similarly restrict state and local agencies from cooperating with federal investigations of cannabis activities that are illegal under federal law, but legal under state law. The extent to which local agencies must comply with regulations mandating how they interact with federal agencies may hinge on the courts’ interpretation of arguments made in the current slate of cases with respect to SB 54.
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John M. Appelbaum
Immediate Past Chair
Scott C. Smith
Christopher J. Diaz
Bernadette S. Curry
K. Scott Dickey
Donna R. Mooney
Elizabeth G. Pianca
Rachel H. Sommovilla
Bonnie C. Maly
Director, California Lawyers Association
Section Administrative Assistant
Port of Oakland
Scott C. Smith
Best Best & Krieger LLP
K. Scott Dickey
Office of County Counsel, Alameda
Rachel H. Sommovilla
City Attorney’s Office, Richmond
The statements and opinions here are those of the contributors and not necessarily those of the Public Law Journal, its Editorial Board, California Lawyers Association, the Public Law Section, or any government body. This publication is designed to provide information regarding the subject matter covered and is made available with the understanding that if legal advice is required, the services of a competent professional should be sought.
By Ryan Brown
Ryan Baron is Of Counsel at Best, Best & Krieger’s Irvine office and the Chair of the Public Law Section Executive Committee.
The California Lawyer’s Association (CLA) is in its first year of transition implementation and matters are going extremely well. The CLA board is holding a robust recruitment for an executive director who will see the transition forward as the second largest bar association in the nation. CLA members attended a town hall on June 18, 2018, providing direction to the board on the desired qualifications for the director. The board has been working with all 16 educational sections on revising individual section bylaws that will comply with CLA bylaws as well as implement procedures to ensure meaningful participation by section members. And, I have been working with the Location Development Committee to locate the next headquarters. With our committee’s assistance, the board voted to relocate CLA from San Francisco to Sacramento to save costs on rent and labor and be closer to the state capitol and the judiciary to ensure CLA member interests are fully represented.
The Public Law Section Executive Committee has also been active through the first half of 2018, having met three times this year in coordinating section members educational activities. On April 27, 2018, our Section’s annual Open Meetings and Public Records Act conference was held at UCLA School of Law. The conference was attended by over 100 registrants with a diverse program that included PRA updates, discovery and PRA request Q&A, best practices in records retention, and a program on cost controls.
I am also pleased to announce two upcoming programs that Public Law Section members should not miss – the inaugural CLA annual meeting and our Section’s Law Enforcement Use of Force and Liability conference. On September 14-15, 2018, CLA will kick-off its inaugural annual meeting at the Sheraton Hotel and Marina in San Diego. Public Law Section programs will include State and Local Regulation of Cannabis, Brown Act Update, and Dissecting the Lizard: The Reptile Brain Strategy of Litigation and How to Defend Against It. We will also be ending the year on a high-note by bringing back our successful Law Enforcement Use of Force and Liability Conference to be held on November 16, 2018 at the UC Berkeley School of Law. The program will be keynoted by Dean Erwin Chemerinsky and will feature programs on recent U.S. Supreme Court jurisprudence, new technologies, and best practices in use of force investigations.
Lastly, I want to thank you for your continued membership in CLA and the Section. Should you be interested in doing a webinar or submitting an article for publication in the journal, please do not hesitate to send me an email.
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By Bernard S. Kamine
A graduate of Harvard Law School, Mr. Kamine has been helping contractors, owners and sureties avoid and resolve construction project disputes since 1974. He has been listed as a construction lawyer in Best Lawyers of America since 2007 (best construction lawyer in Los Angeles, 2015), and Southern California Super Lawyers since 2008, and is the author of Public Works Construction Manual - A Legal Guide for California (BNi Building News, 1996), which is cited as a secondary source in Judicial Council of California Civil Jury Instructions (2014 ed.), CACI Nos. 4500, 4501, 4502, 4521, 4522 and 4543.
Every invitation for bids that promises to award the contract to the lowest responsible bidder qualifies that promise with a sentence like this: “The agency reserves the right to reject any or all bids.” As a general rule, the public agency has the discretion to reject all of the bids. However, the agency cannot abuse that discretion. Such an abuse of discretion can arise not only from an arbitrary or capricious rejection of bids, but also from a bid rejection (1) that is not required by cogent and compelling reasons or (2) that impairs the public interest by damaging the integrity of the competitive bidding system.
The popular understanding is that no matter what goes wrong in a public bid process, a public agency can simply reset it with no questions asked by rejecting all bids. However, as the court explained almost 75 years ago, it’s not that simple: “To have a set of bids discarded after they are opened and each bidder has learned his competitor’s price is a serious matter, and it should not be permitted except for cogent reasons.” Since then, federal courts have continually returned to this touchstone.
II. Compelling Reasons
In Prineville Sawmill Co. v. U.S., the court held that the successful bidder for the extraction of several species of Forest Service lumber in yet-to-be-determined quantities second-guessed the Service’s estimate of those quantities. The Service had sought bids for a mixture of species with the award going to the bidder with the highest sum of the prices offered per thousand board feet of extracted timber for each species. The per-species quantities would be multiplied by Forest Service’s estimates of available quantities from those species. Prineville’s bid relied upon its own estimate for one species (Lodgepole Pine), which was much lower than the Forest Service’s estimate. The court explains Pineville’s bid:
Prineville prepared to follow a skewed bidding strategy at the oral auction, as permitted under Forest Service policy. Under such a bidding strategy, a bidder would submit an unusually high bid for the species which it believes to have been overestimated by the Forest Service and a correspondingly lower than usual bid on the remaining, more accurately-estimated species. The skewed bidding strategy permits the bidder to offer the Forest Service an apparently higher overall price for the total timber than could be offered without skewing the bids. Since the actual purchase price is calculated from the scaled timber values as removed from the site, a skewed bidder awarded the contract would end up paying less for the salvage timber than would a bidder using its bid values against the Forest Service estimates. However, the bidder pays less only if its estimates were indeed more accurate than the Forest Service’s.
After determining that Prineville was the highest responsive bidder, the Forest Service reevaluated its estimates, decided that Prineville’s were more accurate (with lower prices corresponding to the higher revised estimates), refused to award the contract, and, relying upon its “right to reject any and all bids,” announced that it was rejecting all bids “because of errors in its original estimate” that allowed Prineville to submit the “apparent high bid [that] was not in fact the high bid.”
Relying upon Massman, Prineville sued to enjoin the proposed rebidding, arguing that “the Forest Service could reject bids only for a ‘cogent or compelling’ reason and that the rejection of the bids [here] was not based on a cogent or compelling reason.” The Forest Service responded that it had “an ‘unlimited’ right to reject all bids.” On cross-motions for summary judgment, the trial court decided that in rejecting all bids, the Forest Service did not need to explain itself, that its reasoning “did not require a cogent or compelling reason, but is within the discretion of the Forest Service, sustainable absent clear proof of arbitrary or capricious action amounting to an abuse of discretion.” The appellate court reversed, holding, that the Service’s right to reject all bids was not unfettered:
Since the government generally has a duty to treat fairly responsive bids, and since the statute [16 USC § 472a] specifically requires the Service to adopt procedures which insure open and fair competition, we simply cannot accept the government’s argument that there is no limitation on the right . . . to reject responsive bids . . . To the extent such rejections are determined to be arbitrary and capricious, an aggrieved bidder is entitled to equitable relief . . . . Nor do we believe that the express reservation contained in the advertisement in which the Forest Service reserved the right to reject all bids allows the Service the discretion to be arbitrary or capricious in rejecting all bids. If the Service could free itself from statutory obligations merely by written warnings to parties with whom it deals, statutes of the kind at issue here would have no binding significance.
The appellate court also rejected the trial court’s distinguishing of Massman, on the grounds that submission of preliminary written bids was followed by oral bidding. This created an undesirable relationship among the bidders because:
the opportunity for competitors to know and appreciate the positions of the other bidders could not fully present itself until after the oral auction was completed, and, as in the case of completely sealed bids, a bidder’s competitive advantage could be lost only by post-sale acquisition by other bidders of knowledge regarding its bidding position. It would be virtually impossible for one bidder to determine the reason for another bidder’s skewed bidding and to switch its own bidding strategy during the brief intervals between the bids being made while the oral auction was in progress. But as Prineville rightly stresses, a postauction cancellation and reoffering gives the other bidders the chance and the time to analyze the prior bidding, including the successful bidder’s bidding strategy, and change their strategies.
Finally, the appellate court concluded, “in our view, Prineville has clearly shown that the Forest Service’s decision to reject all bids was, under the circumstances presented here, without reasonable basis.”
Massman is currently codified in the Federal Acquisition Regulations under the following language: “Preservation of the integrity of the competitive bid system dictates that, after bids have been opened, award must be made to that responsible bidder who submitted the lowest responsive bid, unless there is a compelling reason to reject all bids and cancel the invitation.”
III. U.S. Comptroller General
No tribunal has more experience in evaluating and resolving bid disputes on public contracts than the U.S. Comptroller General; the office has been performing that function since 1921.
In one administrative hearing, the Comptroller General decided that even though some bids offered manual typewriters that satisfied the Government’s needs within the budget for the contract, all bids were rejected because of questions about height requirement adjustments allowed in the invitation for bids (IFB). On the rebid, the same companies bid, offering the same equipment, but at lower prices. The Comptroller General explained that an IFB’s inadequate, ambiguous or otherwise deficient specifications is not, itself, a “compelling reason” to cancel an IFB and readvertise. Rejecting all bids discourages competition because it results in making all bids public without award, which is contrary to the interests of the low bidder, and because it wastes the bidders’ manpower and money expended in preparation of bids without the possibility of acceptance.
Given the facts in this case, the Comptroller General held:
The Comptroller General analyzed acceptance or rejection of a mathematically unbalanced bid, which turned upon whether the solicitation estimate was reasonably accurate. It was not; it was so questionable that rejection of all bids and rebidding was approved. Along the way, the Comptroller General pointed out that the agency should consider two key factors: (1) whether the best interests of the Government would be served and (2) whether bidders would be treated in an unfair and unequal manner.
IV. Show Your Work
In another hearing, the Comptroller General noted: “It has been repeatedly held that invitations for bids should not be cancelled and readvertised after prices have been revealed except for the most cogent of reasons.” Moreover, the Comptroller General found that rejection of all bids tends to discourage competition.
The Comptroller General held that an arguable error with the patent infringement clause in the contract, which probably caused bidders to submit higher prices, did not amount to cogent reasons, or a bona fide determination that the public interest would be served by rejecting all bids.
The same test for rejection of all bids has been included in two American Bar Association Model Code commentaries. Both commentaries state: “It is contemplated that the authority [to reject all bids and readvertise] granted by this Section should only be exercised for cogent and compelling reasons . . . .”
Although no California appellate case has dealt with this exact issue, the courts of other states have. For example, in Petricca Construction Co. v. Commonwealth, the issue was whether the state could “recapture the benefit of a lower bid that was properly rejected for noncompliance with the bidding procedure” by rejecting all bids and rebidding the project. Petricca’s bid was the 3d lowest; however, it was responsive and below the engineer’s estimate for the project. The two lowest bids were found to be defective. The state rejected all bids, giving three reasons: (1) avoid delay, (2) avoid litigation, (3) to try to obtain a lower price than Petricca’s in the rebidding. The court found that awarding to Petricca would not have caused delay and that litigation resulted anyway. Turning to the cost issue, the applicable statute permitted the state to “reject any and all bids, if it is in the public interest to do so.” The court construed this language as, among other things, requiring:
[A]n open and honest competition with all bidders on an equal footing. Absent such a restriction, an awarding authority would be free to rebid a contract until a preferred bidder submitted the lowest bid price, and thwart one of the important legislative goals . . . While there is no Massachusetts case directly on the point, other courts have made clear that awarding authorities may not reject bids simply to obtain a lower price.
V. Rejection of All Bids Leading to Higher Prices
In Caruci v. Dulan, the incumbent garbage collection services contractor was the lowest responsible bidder for the new contract. The city of Utica, New York, rejected all bids to avoid litigation and hoping for a lower bid price. The court explained its function: “That the petitioners are the lowest dollar bidder is unquestioned. The matter for determination is whether or not respondents abused their discretion in
failing to award them the contract.”
 The court ordered the city to award the contract to petitioners:
[T]o sanction readvertisement under the circumstances as they exist in this case, would be to authorize a pernicious practice, the long-range effect of which could only be detrimental to the best interests of the municipality. While the intention of the respondents to seek the lowest possible bid is commendable, continued readvertisement can only result in limiting the number of prospective contractors willing to expend the cost and energy necessary for submitting bids when they have no assurance of being awarded the contract even if they are the low bidder. Such a procedure also exposes the secret bid price to other potential bidders and may provide the means whereby a future municipal government can use this power of rejection to award contracts to persons of their choice. This practice has been condemned by the courts of this State.
On appeal, the appellate court concluded that “[a]lthough the courts generally will not disturb an honest exercise of discretion, it has been said that they will intervene to prevent the arbitrary rejection of a bid when its effect is to defeat the object to be obtained by competition.”
In Ronald G. Hinson Electric, Inc. v. Union County Board of Education, the agency rejected all bids and rebid the project. The low bidder sued. The appellate court remanded to the trial court for a factual determination of whether the agency had abused its discretion by manipulating the bid process to favor a particular bidder.
Although no California case holds that a rejection of all bids was an abuse of discretion, there are many cases where the court has overturned the acceptance or rejection of one bid.
In Valley Crest Landscape, Inv. v. City Council etc., the city allowed the low bidder, after bid day, to correct percentages allocated to listed subcontractors in the bid, and awarded it the contract. The second low bidder sought a writ of mandate to void the contract. The invitation for bids said that “[t]he City Council reserves the right to reject any or all bids and to determine which proposal is, in its opinion, the lowest responsible bid of a responsible bidder, and that which it deems in the best interest of the City to accept . . . .”
Despite that language, the court voided the contract.
VI. Compliance With Agency Policy
There is also California authority that courts can compel an agency to comply with its governing laws and established procedures. Pozar v. Department of Transportation explains:
This court has no power to direct the award of a public contract to any individual. We can, however, direct an agency to follow its own rules when it has a ministerial duty to do so or when it has abused its discretion. Here, as in the Glendale case, we are concerned with a ministerial duty. Caltrans’ own rules obligate it to accept the per-unit price in the absence of specified circumstances, none of which are here present.
Public works contracts in California must generally be awarded to the lowest responsible bidder, by statute, or city charter, or city ordinance, or by the terms of the invitation for bids. Surely, California courts can prevent an agency from violating that competitive bidding requirement through an abuse of discretion by improperly rejecting all bids.
In doing so, California courts can also rely upon the express purposes of the Public Contract Code, including: (c) To provide all qualified bidders with a fair opportunity to enter the bidding process, thereby stimulating competition in a manner conducive to
sound fiscal practices.
That language echoes the statutory requirement for “open and fair bidding” on which the court relied in Prineville Sawmill Co.
Thus, before any California public entity rejects all bids, it must demonstrate that there are cogent and compelling reasons for doing so, and that doing so does not impair the public interest by damaging the integrity of the competitive bidding system. Otherwise, that rejection probably amounts to an abuse of discretion which will be overturned by the court.
Do you have experience in a specialized area of public law, just came out of the trenches of litigation over a timely subject, or enjoy enlightening your colleagues on recent public law updates? If so, the Public Law Section invites you to submit topics for webinars that will be presented to members of the California Lawyers Association.
Webinars are generally held over the lunch hour and are eligible for MCLE credit for presenters. Brief written materials must be prepared prior to the webinar.
For webinar proposals and for more information, please contact Caroline Fowler at email@example.com.
By Arne B. Sandberg
Arne B. Sandberg is Senior Counsel in Lozano Smith’s Walnut Creek office. Mr. Sandberg represents public agencies in construction disputes and complex property cases. He has litigated property and construction cases on behalf of public agencies since 1993.
The English common law rule of rex non potest peccare (“the king can do no wrong”), which is the basis of government immunity in the United States, has recently received a second look in California in relation to the recreational trail immunity. Immunity for public agencies relating to recreational trails has traditionally been broadly applied, providing significant protection from liability when hazards on adjacent property result in injuries to users of recreational trails. However, two 2017 cases have narrowed that protection from liability so that public agencies now should think carefully about how their trails relate to their surroundings.
California Government Code section 831.4 (“Section 831.4”) provides immunity for public agencies and employees from an injury caused by a “condition of ” any trail used for fishing, hunting, camping, hiking, riding, water sports, recreational or scenic areas, or access to these purposes. If the condition of the trail is “relating to [the trail’s] design,” then the immunity still applies.
But what if the condition causing the harm is adjacent to the trail? Is it still a “condition of ” the trail so that it provides immunity under Section 831.4(b)? Amberger addressed this issue in 2006, but no other case did so until 2017 and 2018, when four were published. Amberger and two of the recent cases held that conditions adjacent to a trail would be treated as a condition of the trail, but the other two recent cases created a new approach and refused to apply the immunity.
I. Amberger-Warren v. City of Piedmont
In this decision, plaintiff was bumped off a path and started to slip down a hill. She injured her hand as she grabbed for the edge of the path to stop her slide. The plaintiff argued that the trail’s dangerous location next to a slope where people could fall was a condition “unrelated” to the trail, and that the recreational trail immunity did not protect the city from liability.
The Court of Appeal held that the hill was “not unrelated to the trail because the trail is what provides access to the hill and exposure to the alleged danger. Plaintiff is in effect arguing that the trail is situated in a dangerous location …, but location, no less than design, is an integral feature of a trail, and both must be immunized for the same reasons.”
II. Leyva v. Crockett & Company, Inc.
In January 2017, the appellate court in Leyva v. Crockett & Company, Inc. relied on Amberger and Prokop to hold that Section 831.4(b) protected the owner of the trail from liability for an injury caused by a condition adjacent to the trail (an errant ball from a golf course). The owner of the trail also owned the golf course, and it claimed immunity under Section 831.4(b). The plaintiff argued that the condition that caused the injury was the lack of safety barriers on the golf course which would have stopped balls from flying onto the trail, and that this condition was not a faulty design or “condition of ” the trail.
The Fourth Appellate District agreed with the owner that the immunity applied. “Just as the trail’s location next to a hill in [Amberger] is an integral feature of the trail, so is the trail’s location next to the golf course. Further, it makes no difference whether the alleged negligence in failing to erect safety barriers along the boundary … occurred on the golf course or on the trail itself because the effect is the same. [¶] Additionally, the erection of a safety barrier … is equivalent to the installation of a handrail in [Amberger].”
III. Garcia v. American Golf Corporation
In May 2017, the Second Appellate District in Garcia v. American Golf Corporation departed from the previously broad application of the recreational trail immunity, and the California Supreme Court later denied review of the opinion.
The Garcia court held that the recreational trail immunity did not apply, despite the strong factual similarity to the Leyva case. The plaintiff in Garcia was a child in a stroller who was hit in the head by a golf ball while on a pedestrian walkway between a roadway and a golf course. The defendant city owned the roadway, the walkway, and the golf course, and a third party operated the golf course for the city. The walkway supported the same asphalt surface as the roadway but was painted light brown, and it was only separated from the roadway by a 12-inch white painted line and intermittent “delineators.” The walkway and the golf course were separated by a concrete wall topped by a chain link fence almost 7 feet high.
The city filed a motion for summary judgment. In opposition, the plaintiff argued that the dangerous condition at issue was not the walkway, but the golf course itself since the golf course’s holes were too narrow and the fences were too low, and since the warning signs inside the course did not provide a reasonable warning to pedestrians outside the golf course. The plaintiff’s experts submitted declarations that the warning signs were inadequate, that the walkway was “inherently unsafe,” and that protection “could have easily been accomplished.” These dangers were especially present where the plaintiff was hit, the plaintiff argued, due to golf holes being close together, the short fence, and the trees obscuring both the pedestrians’ vision of incoming golf balls and the golfers’ vision of pedestrians who needed warning.
The trial court granted summary judgment to the city, and the plaintiff appealed.
The appellate court concluded that Amberger “did not hold that there must be immunity for every injury occurring on a trail when an adjacent public property was a contributing factor. Rather, the [Amberger] court examined the causation question in light of the policy of section 831.4. It identified the issue as whether the trail and an adjacent public property meet a relatedness test. That test has two parts: proximity and liability that will likely cause the trail to close. Thus, the [Amberger] court embraced a nuanced, policy based relatedness test for determining whether an injury is caused by a condition of a trail when an adjacent public property may have contributed to the injury.”
Next, the Garcia court summarized Prokop by stating that the Prokop court “did not have to decide whether an adjacent public property had caused injury” since it had decided that the gate was an “integral part” of the path. The Garcia court also summarized the Leyva case.
The Garcia court then concluded that the golf course “does not pass the relatedness test” of Amberger (i.e., “unless properties are deemed related for policy reasons, courts will not immunize adjacent public properties”) and it distinguished Amberger, Prokop, and Leyva. The Garcia court concluded that Amberger does not control since the hill was clearly related to the path on the hill, and not applying the immunity would have likely led to the path’s closure. In Garcia, however, the golf course was not related to the walkway since, among other things, people did not use the walkway to go to the course, there was a risk of harm from third parties (i.e., golfers), and imposing liability would not likely close the walkway since the golf course generated revenue that could pay for insurance and renovations to protect users of the walkway. In short, the Garcia court concluded that the Amberger path and hill were inseparable, but the Garcia walkway and golf course were separable.
The Garcia court then quickly distinguished the Prokop and Leyva cases, even though the effort to distinguish the latter’s facts could be viewed as weak.
Despite its creation of a “relatedness test” and failure to follow Leyva, it should be noted that the Garcia court issued a narrow holding when reversing the trial court’s summary judgment ruling: A public golf course cannot assert a trail immunity defense when the trail abuts a public street, the course is a commercially operated revenue-generating enterprise, the course has a dangerous condition, and the dangerous condition caused harm to a user of the trail.
Essentially, Garcia holds that the scope of the “condition of” the trail did not include an unrelated adjacent golf course.
IV. Toeppe v. City of San Diego
In July 2017, the Fourth Appellate District issued its opinion in Toeppe v. City of San Diego, which reached the same result as Garcia, but with clearer reasoning. In Toeppe, the plaintiff was walking through Mission Bay Park on a bicycle path when a branch from a eucalyptus tree fell on her. The trunk of the tree was 25 feet from the trail, the tree was planted when the park was constructed by the defendant city (or was the “offspring” of such a tree), and it had been maintained by the city.
The court refused to grant immunity to the city under Section 831.4. Whereas the Amberger hill could not be separated from the path and the only way to be exposed to the danger of the hill was to use the path, the Toeppe tree could be accessed by persons on the trail and persons using the other park areas (grass, picnic tables, and benches) surrounding the tree. The alleged dangerous condition (the tree) “is independent of the trail.” In addition, the dangerous conditions in Amberger (the hill and the lack of handrails) were of a different nature since protection from the dangerous conditions would have required modification to the design of the trail, but the tree did not require any improvements to the trail. Lastly, the Toeppe court reasoned that the Amberger hill was fundamentally different than the Toeppe tree since the hill was a natural condition that was not maintained by the public agency, but the tree was in a man-made park and was maintained by the city.
Even though the Fourth Appellate District also issued the Leyva case six months earlier, the Toeppe case distinguished Leyva. The Toeppe court held that “the condition of the golf course could not be dangerous but for the location of the trail next to it,” but “[t]he same cannot be said about the eucalyptus tree here. If that tree was negligently maintained, it was a dangerous condition regardless of the location of the subject trail.” It could be argued that this reasoning lacks persuasive effect, since persons off the trail near the golf course would be equally in danger of being hit by a golf ball. Anyone who has played (or suffered through) a round of golf, or has spent significant time near a golf course, knows that balls leave the course at a wide variety of trajectories and speeds, thus landing across a wide area. The balls are not limited to just landing in a path next to the course.
In addition, the Toeppe court observed that the plaintiff in Leyva claimed that the lack of safety barriers to prevent golf balls from hitting the trail created a dangerous condition, but that the plaintiff in Toeppe does not claim that the trail lacked safety barriers or should have been designed differently. This logic could also be questioned since the alleged lack of safety barriers in Leyva concerned the golf course, not the trail. The plaintiff in Leyva claimed that there should have been barriers on the course to protect persons off the course.
The Toeppe court concluded “In short, this is not a case about trails. It is about trees.”
V. Arvizu v. City of Pasadena
In February 2018, the Second Appellate District – the same District that issued the Garcia decision – decided Arvizu v. City of Pasadena. Despite the park in question being closed during the night, plaintiff and his friends decided to enter the park and climb down a steep hill to reach a particular trail. Unfortunately, plaintiff lost control down the hill, and then tumbled onto the trail, across the trail, and over the top of a 10-foot high retaining wall. There was no guardrail on the downhill side of the trail.
Plaintiff argued that the trail immunity should not apply since he was not injured by a condition of the trail, but by the lack of guardrails or warnings along the retaining wall. The appellate court disagreed, and relied on Amberger-Warren, Prokop, and Leyva for the proposition that the immunity applies to the design and location of the trail, which includes the areas adjacent tothe trail. Plaintiff specifically argued that the trail immunity should not apply due to Garcia, but the appellate court quickly distinguished Garcia since the present case did not involve a golf course or a revenue generating City asset. Although decided seven months after the Toeppe decision, the Arvizu decision did not mention it.
VI. Reconciliation of These Decisions
It appears that the Garcia and Toeppe courts were not comfortable with the Leyva court’s broad application of the Amberger holding, but they did not want to openly disagree with Leyva and create a new rule for analysis out of thin air. Thus, the Garcia court construed Amberger to require a “relatedness test,” Toeppe characterized it as a matter of “independence,” and both courts attempted to distinguish Leyva.
However, despite the Garcia and Toeppe courts’ apparent fear of directly disagreeing with the Leyva court’s holding, the Garcia and Toeppe courts’ approaches may have identified a flaw in the Leyva court’s broad holding, thus justifying their exception to the broad application of the immunity. After all, if there is a hazardous condition on adjacent public property that is unrelated to the recreational trail, it seems to make little sense that a plaintiff should be barred from suing the owner of that condition for that condition simply because he/she was on a recreational trail.
For example, consider the incongruous result if the Garcia court had applied the Leyva holding to the Garcia facts: Motorists on the roadway would be allowed to sue for the hazardous golf course condition, but pedestrians on the walkway (who need more protection than the motorists on the roadway) would not be allowed to sue. If the Leyva holding had been applied to the Toeppe facts, then a person injured by a falling branch on the trail would not have recourse, whereas persons elsewhere near the tree would.
The potential flaw in the broad scope of Leyva’s holding also becomes apparent by slightly changing the Leyva facts. Consider a situation where the public golf course (i.e., the hazardous adjacent condition) is owned by a different public agency (unlike the cases discussed above). Rather than the public owner of the golf course being able to avoid liability due to the recreational trail immunity, the immunity would not protect the public owner of the golf course since it is not the owner of the trail. No logical reason seems to exist for the trail user’s ability to sue the public golf course to depend on whether the golf course is owned by the same public entity that owns the trail.
As to Arvizu, while it distinguished Garcia and ignored Toeppe, its holding does not appear to be inconsistent with them. If the Arvizu court had applied the Garcia and Toeppe tests, it could have easily reached the same result since the plaintiff’s injuries were caused by the steep hillside and retaining wall adjacent to the trail, which were clearly related to, and not independent of, the trail.
In short, while the Garcia and Toeppe courts may have taken the backstreets to distance themselves from Leyva, and while their holdings may not be the ones desired by public agencies, their holdings may ultimately prove to be more sound, thus resulting in more cohesive and reasoned application of recreational trail immunity.
For the time being, due to the potentially increased risk of liability caused by these two cases, public agencies may wish to review conditions that are adjacent to, and independent of, their recreational trails. If such a hazard exists for users of a trail, the agency may want to consider what measures could be taken to protect users of the trail.
The Public Law Journal is currently accepting article submissions. The article deadline for the next Summer 2018 edition is August 24, 2018; deadline for the Fall 2018 edition is September 30, 2018.
The Journal solicits original manuscripts of 2,500-3,000 words in length, not including endnotes, on public law topics including: administrative law, constitutional law, municipal law, open meeting law, political/election law, education law, state and federal legislation, public employment and labor, government contracts, tort liability and regulations, land use/environment issues, public lawyer ethics, and public finance. MCLE self-study credit up to 12.5 hours may be available to published contributing authors. Citations should be in endnotes.
To submit an article or for more information, please contact either Eugene Park at firstname.lastname@example.org or Scott Smith at email@example.com.
About the Public Law Journal: The Public Law Journal is a quarterly journal published by the Public Law Section, which includes articles of interest to public law practitioners. Past issues of the Journal are available in the Members Only area of the Public Law Section’s website at www.calawyers.org/Public.
By Katherine Cook, Carmen Gibbs, Leslie Lopez, and Chris Whitman
Katherine Cook is Of Counsel at Meyers Nave. Carmen Gibbs is Staff Counsel at the California Department of Community Services and Development. Leslie Lopez is the Deputy Director and Chief Counsel at the Department of General Services. Chris Whitman is a Deputy City Attorney for the City and County of San Francisco.
Public Records Act
Labor & Workforce Dev. Agency v. Superior Court (2018) 19 Cal.App.5th 12, filed Jan. 8, 2018.
Materials submitted by Legislative Counsel to the California Labor and Workforce Development agency are protected by the California Public Records Act’s deliberative process exemption and attorney work product privilege.
The Governor directed the Labor and Workforce Development Agency (Agency) to draft legislation related to piece-rate employees. The Agency, in response to the Governor’s directive, communicated with Legislative Counsel and sought confidential input from representatives of the business and labor sectors to draft the legislation which became AB 1513. This legislation addressed minimum wages for employees on a piecerate basis, along with safe harbor provisions for employers; however, the legislation also provided carve-outs from those safe harbor provisions.
A Public Records Act (PRA) request was made on behalf of Fowler Packing Company, Inc. and Gerawan Farming (who opposed the carve-outs) in response to the 2015 enactment of AB 1513. The request was for communications between Agency staff and the United Farm Workers of America, any records related to the carve-out, and any records related to Fowler and Gerawan. The Agency provided 119 pages in response to the request, but withheld an unspecified number of other documents claiming that they were privileged under the deliberative process, Evidence Code 1040, and attorney work product. The requestors contended the Agency’s withholding of documents did not comply with the PRA and brought an action against the Agency.
The trial court ordered the Agency to produce an index identifying the records and the author. The Agency filed an ex parte application to seek a stay of the court order and an enlargement of time to file a writ. The trial court denied the application. The Agency submitted a writ petition to the Court of Appeal for the Third Appellate District (“appellate court”) to prevent disclosure of the identities of the parties with whom the Agency communicated with confidentially. The appellate court granted a stay to review the matter. It conducted an independent review of the trial court’s ruling to the Agency submitting an index.
The PRA provides that each state or local agency, upon request for a copy of records, shall make such records promptly available with the exception of various listed exemptions. The appellate court focused on the deliberative process exemption. It is of note that the PRA does not require an index of records available for public inspection, but also does not prohibit courts from ordering such an index.
The appellate court used the balancing test to weigh the public interest in nondisclosure and the public interest in disclosure when it determined whether the deliberative process privilege was properly applied. The deliberative process is about pre-decisional communications. Communications sent after the decision is made are not privileged, however not all deliberative processes are privileged. The balancing test must be applied to determine whether the public interest in nondisclosure outweighs the public interest in disclosure. In this case, the Agency would have received less candid input for the proposed legislation and may not have heard the viewpoints of knowledgeable persons. The deliberative process is important to test and discuss ideas that will not automatically become the subject of public discussion. The appellate court also cites precedent that discusses the reality of politics and that government must have the ability to take all perspectives into account, knowing not all ideas will be popular.
The appellate court found that the trial court erred. It held that the Labor and Workforce Development Agency should not have been ordered to produce an index identifying author, recipient, general subject matter, and nature of the exemption because that would require disclosure of matters protected by deliberative process and work product privileges. The appellate court also disagreed with the trial court finding that the Agency waived privilege when it shared documents with Legislative Counsel. The attorney-client relationship between Legislative Counsel and the Governor extended to the Agency because the it acted under the authority and at the direction of the Governor in formulating this Bill. The Legislative Counsel provided confidential legal services to the Agency by submitting draft legislation, legal opinions, and recommendations. Agency attorneys reviewed these drafts and legislative proposals. The materials that were submitted to the Agency, and not a third party, were impressions, conclusions, opinions and theories which are protected by the work product privilege.
Thus, the appellate court directed the trial court to vacate its order directing the Agency to produce an index disclosing the author, recipient, and general subject matter of documents.
Employment Law/Civil Rights
Perez v. City of Roseville, 882 F.3d 843 (9th Cir. 2018), filed Feb. 9, 2018.
Did the City of Roseville terminate a probationary police officer, at least in part, on the basis of her off-duty extramarital affair with another officer? This question asked by the Ninth Circuit was enough for the appellant’s Section 1983 claim for violation of her constitutional rights to privacy and intimate association to survive summary judgment and be remanded for further proceedings. The decision creates tension with the Fifth and Tenth Circuits on the issue. The Ninth Circuit did, however, affirm the trial court’s granting of summary judgment for the City on the plaintiff’s due process and gender discrimination claims.
Plaintiff Janelle Perez, a probationary police officer, was released from probation about nine months into her employment with the City. About six months into her employment, a citizen complaint filed with the City alleged that Perez was having an extramarital affair with a male officer in the department and that the two were engaging in sexual conduct while on duty. The complaint was filed by the wife of the male officer with whom Perez was having the affair.
The City’s internal affairs investigation found that no on-duty sexual contact occurred between the two officers, but did find that the pair participated in excessive texting and phone calls with each other while on duty and that this may have violated department policy. A captain and lieutenant who reviewed the investigation report concluded that Perez should be terminated because of the affair and also expressed moral disapproval of it. However, Perez and the male officer received written reprimands.
Perez was released from probation about two months after the conclusion of the investigation. The police chief testified that she was released based on three complaints that surfaced after the investigation. These complaints concerned an allegation that Perez “was not getting along with other female officers,” a citizen complaint (later dropped) that she was rude, and a disagreement over the application of the “shift trade policy.”
Perez sued the City and three police command staff members individually for gender discrimination and violation of 42 U.S.C. section 1983 based on her constitutional rights to privacy and intimate association, alleging her release was wrongly based, in part, on the defendants’ disapproval of her purported off-duty sexual conduct. The trial court granted summary judgment for the City on all claims.
The Ninth Circuit reversed the summary judgment on Perez’s privacy and freedom of association claims, holding that theses constitutional guarantees: “prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.”
Because a genuine factual dispute existed on the Section 1983 issues, the district court’s grant of qualified immunity to the officers on these claims was reversed. The Ninth Circuit held that because “these rights were clearly established by our precedent in Thorne such that any reasonable official would have been on notice that…Perez’s termination was unconstitutional.”
The Ninth Circuit affirmed summary judgment for the City on the sex discrimination claim based on the fact that the evidence, “taken in the light most favorable” to the appellant, “indicates that the defendants’ disapproval of her extramarital affair, rather than gender discrimination, was the cause of her termination.”
Local Government/Landlord-Tenant Law
San Francisco Apt. Assn. v. City and County of San Francisco (2018) 20 Cal. App.5th 510, filed Feb. 14, 2018.
San Francisco enacted an ordinance that prohibits no-fault evictions of families with children and educators during the school year. One of the ordinance’s purposes was to “reduc[e] the number of evictions during the school year of families with children, and of teachers and other school staff . . . by regulating the timing of certain no-fault evictions.” Two non-profit organizations representing San Francisco property owners sued, claiming the ordinance was facially invalid because it was preempted by the state’s unlawful detainer statutes. The trial court found the ordinance was preempted, but the appellate court reversed.
As the appellate court noted, cases addressing whether landlord-tenant ordinances are preempted use a substantive/ procedural framework: a local government, using its police powers, may place substantive limitations on the otherwise available grounds for an eviction, but it may not impose additional procedural limits. The basis for this framework is the California Supreme Court’s reasoning that the purpose of the unlawful detainer statutes is procedural. As the appellate court also noted, drawing a distinction between procedural and substantive law “can be ‘shadowy and difficult.’” The appellate court ultimately found the ordinance does not impose procedural requirements, rather, it “simply has a procedural impact limiting the timing of certain evictions.” (emphasis in original).
On the procedural side of the equation, the appellate court found the procedural impact was simply necessary to regulate the substantive defense created by the ordinance. And as to substance, the court viewed the defense to eviction for tenants in the protected group as a permissible police power limitation on a landlord’s property rights. The court therefore reversed, finding the ordinance was not preempted by the state’s unlawful detainer statutes.
Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, filed Feb. 21, 2018.
After three decades of judicial certainty, there is now an active split in the Courts of Appeal as to whether the electorate has the right to vote on a referendum for a zoning ordinance, that, if repealed, would result in zoning inconsistent with a general plan. Pursuant to Government Code section 65860 and established case law, county and general law city zoning ordinances must be consistent with their respective general plans.
In Save Lafayette v. City of Lafayette, the First District Court of Appeal recently held that a City Council could not prevent a referendum on a zoning ordinance from going to the voters, even where the Council found it to be invalid or illegal because, if passed, it would result in zoning inconsistent with the general plan. The holding in Save Lafayette directly conflicts with the 32-yearold case deBottari v. City Council of Norco (1985) 171 Cal.App.3rd 1204. And in 2017, the Sixth District Court of Appeal also rejected the Fourth District’s holding from deBottari in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34.
Both the Sixth District and First District Courts of Appeal found that a referendum to reject a Council-adopted zoning ordinance does not create inconsistency with the general plan because it simply returns the zoning to the status quo. Unlike an initiative that enacts a zoning ordinance inconsistent with a general plan, a referendum that would return the zoning to the prior status does not violate Section 65860 because it does not enact zoning inconsistent with the general plan. The California Supreme Court granted review of Bushey, while the Save Lafayette case is final.
In Save Lafayette, the City Council amended its general plan to allow for residential development on a 22-acre property known as “Parcel 27.” The Council passes a Resolution amending the general plan designation of the site from “Administrative Professional Office” (“APO”) to “Single Family Residential District -20” (“R-20”). After the 30- day period to challenge the general plan amendment expired, the City Council approved an ordinance changing the zoning on Parcel 27 from APO to R-20. The appellants then filed a referendum challenging the zoning ordinance, requesting that the Council either repeal the ordinance or submit it to a vote. The city clerk informed appellants that the referendum met the requirements of the Elections Code. The City Council voted to neither repeal the ordinance nor place it on the ballot, finding that repeal would create inconsistency with the City’s general plan because it would return the site to APO zoning while the general plan designated the site as R-20.
The trial court found that the City had met its burden to make a compelling showing that the referendum was clearly invalid because, if passed, it would create inconsistency with the general plan. The Court of Appeal overturned, holding that the referendum would not, in fact, create the inconsistency: “The referendum does not seek to enact a new or different zoning ordinance; it simply seeks to put the existing ordinance before the Lafayette voters. If the voters reject it, then the zoning ordinance returns to the status quo, which was inconsistent at the time the city council amended the general plan. The referendum does not create the inconsistency.
This result simply stresses the need for a city to amend its general plan and any conflicting zoning ordinance at the same time, in order to avoid the result of creating an inconsistent zoning ordinance. Were it otherwise, the holding in deBottari effectively precludes citizens from challenging tardy zoning ordinances by referendum following amendments to general plans.”
The Court of Appeal emphasized the critical function of the electorate’s right to initiative and referendum granted by the California Constitution, noting that “(l)ocal governments are not empowered to exercise discretion in determining whether a duly certified referendum is placed on the ballot.” The Court of Appeal found that the proper course of action for a City faced with a potentially illegal referendum is to file a writ of mandate seeking removal from the ballot.
This split among the Courts of Appeal will be taken up by the California Supreme Court with the petition in City of Morgan Hill v. Bushey. In granting the petition, the California Supreme Court was specific as to the issue to be briefed and argued: “Can the electorate use the referendum process to challenge a municipality’s zoning designation for an area, which was changed to conform to the municipality’s amended general plan, when the result of the referendum-if successful-would leave intact the existing zoning designation that does not conform to the amended general plan?”
Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, filed Mar. 15, 2018.
Under the City of San Diego’s charter, a two-thirds vote of qualified electors is required to change the use of property that has been formally dedicated for park purposes. The charter also gives the City Manager authority to manage the city’s parks, and gives the City Council authority to adopt ordinances “for the proper use and protection” of parks. By ordinance, the City retained the right to establish underground public service easements in specified parks. The City subsequently approved development and use permits for Verizon Wireless to construct a wireless telecommunications facility in the park, and found the project was categorically exempt from CEQA.
In its lawsuit, the not-for-profit group Don’t Cell Our Parks claimed that Verizon’s facility was not a permissible park or recreational use within the meaning of the City charter and it did not qualify for a CEQA categorical exemption. The trial court disagreed, finding that Verizon’s project would not interfere with or detract from park uses and, consequently, was consistent with the City charter. The trial court found it persuasive that the City had a significant history of legal opinions and policies interpreting its charter to allow wireless telecommunications facilities in City parks so long as the facility did not detract from park uses or interfere with park purposes. The appellate court affirmed.
The appellate court found that the intent of the City’s voters could be ascertained from the City charter’s plain language and therefore did not need to consider extrinsic aids. It held that the charter’s distinction between dedicated and designated parks to be significant. Under the City charter, designated parks can, without voter approval, be used for any public purpose the City deems necessary, but the use of dedicated parks cannot be changed without voter approval. Consequently, voter approval is required when a project “changes the use or purpose of a dedicated park.”
The appellate court used a two-step approach to analyze the City charter and the Verizon project. First, the court addressed the specific charter and language used to dedicate the park to determine whether the proposed use is permissible. If the proposed use is permissible, the second step is to determine whether the proposed use would disrupt or interfere with park purposes. Under the first prong, the court found the proposed use was permissible: the project would use 0.14% of the park’s 8.53 acres, much of the project would be masked by existing park features, and it would clearly benefit park visitors. For the same reasons, the court found the second prong was satisfied. The court also looked at a formal City policy requiring wireless communications facilities located on parkland to be consistent with the City charter. The court pointed to requirements to disguise the project so as to not detract from the park’s recreational and natural character, and not disturbing the parkland’s environmental integrity by being integrated into existing facilities. Additionally, the court gave “great weight and respect” to the City’s view that the Verizon project would not detract from or interfere with the park or its uses.
The appellate court also rejected Don’t Cell’s CEQA challenges. The court determined that Verizon’s facility fell within the categorical exemption applicable to, among other things, a “limited numbers of new, small facilities or structures.” In reaching that decision, the court rejected Don’t Cell’s assertion that the exemption was intended to apply to urban infill developments. The court also rejected Don’t Cell’s claim that CEQA’s “unusual circumstances” exception applied. This exception prohibits the use of a categorical exemption when “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” The court found the exception inapplicable because the record evidence showed that Verizon’s project would not significantly impede views or otherwise result in significant aesthetic impacts, and the park was not a government-designated “environmental resource of hazardous or critical concern.
Rizo v. Yovino, 887 F.3d 453 (9th Cir. 2018), filed Apr. 9, 2018.
An employer subject to the Equal Pay Act cannot rely on prior salary information to set an employee’s starting salary.
Plaintiff Aileen Rizo was hired as a math consultant for the Fresno County Office of Education. The County calculated her salary for this position using her prior position’s salary. It did not rely on her past experience. Rizo sued the Fresno County Office of Education and claimed a violation of the Equal Pay Act (EPA) and sex discrimination under federal and state laws.
The EPA states that both men and women should receive equal pay for equal work, regardless of sex. There are four statutory exceptions that the Act determined as acceptable reasons for a pay differential between men and women: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. The County moved for summary judgment, and the motion was denied by the District Court. The Ninth Circuit granted the County’s request for an interlocutory appeal. The three-judge panel vacated the denial of summary judgment and remanded it with the instruction that precedent stated prior salary constituted a factor “other than sex.” Prior to remand, the Ninth Circuit granted a petition for rehearing en banc. The Ninth Circuit reviewed the case de novo.
The County did not deny that there was a difference of its salary between men and women, and argued that the differential fell within the fourth exception because prior salary information constituted a factor other than sex. The Ninth Circuit, however, stated that the difference in pay between men and women must be based on a job-related factor because reliance on past wages perpetuate the gender discrimination that the EPA seeks to eradicate. The purpose of the EPA is to eliminate historical discriminatory wages, and the Ninth Circuit reasoned that to rely on prior wages is to rely on the historical discriminatory practices in setting wages. The County argued that prior salary was a facially neutral factor, which the court rejected and stated that the catchall exception should not be based on prior salary, but job history according to legislative intent. The court stated that in reading the statute in context, the first three exceptions to the rule were related to job performance and experience. The catchall exception was not meant to be prior salary, as it would be inconsistent with the other exceptions. The exceptions are limited to job-related factors, and prior salary according to legislative history and analysis, did not seem to be considered jobrelated.
The Ninth Circuit also spent some time looking at the difference between the terms “job-related” and “business-related.” Jobrelated is related to performance, while business-related may be connected to what makes economic sense, which could still perpetuate sex discrimination. The District Court opinion was thus affirmed and the case was remanded.
Significantly, the Ninth Circuit used this case as an opportunity to overrule Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982), which held that there was not a strict prohibition against using prior salary for the catchall exception if it effectuated a business policy. The Ninth Circuit overruled Kouba and emphasized that the catchall exception must be job-related, and job salary as a factor perpetuates the discrimination that the EPA is trying to eliminate. It also rejected the idea that salary may be considered in conjunction with other factors, and reasoned that if salary is impermissible by itself, then it is impermissible linked with other factors; the court mentioned prior opinions have not explained how salary linked with other factors will not perpetuate disparities.
Keynote by Dean Erwin Chemerinsky
Friday, November 16, 2018
University of California Berkeley, Boalt School of Law
Save the date for an exciting conference that will feature leading experts and the finest speakers discussing law enforcement’s use of force, accompanying liability, and best practices to minimize exposure. Topics will include trends in law enforcement use of force laws, police officer liability, use of emerging technologies, and best practices in conducting use of force investigations. Do not miss this exciting conference!
Click here for more details!