California State Association of Counties

Transcription

1 California State Association of Counties March 11, K Street Suite 101 Sacramento California Telephone Fa0imile Honorable Ronald M. George California Supreme Court 350 McAllister Street San Francisco, CA Re: (b)) Opposition to Request for Depublication (Cal. Rules of Court, rule Priceline.com Inc. v. City of Anaheim California Supreme Court Case No. S (Court of Appeal Case No. G041338) Dear Chief Justice George : The California State Association of Counties (CSAC) 1 and the League of California Cities (League) 2 write in opposition to the requests to depublish the Fourth Appellate District's opinion in the above-referenced case? Those requests do little more than restate the arguments that were raised below, which were soundly rejected by both the trial court and the Court of Appeal in this case. Though the outcome may not The California State Association of Counties (CSAC) is a non-profit corporation. The membership consists of the 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels' Association of California and is overseen by the Association's Litigation Overview Committee, comprised of county counsels throughout the state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determined that this case is a matter affecting all counties. 2 The League of California Cities is an association of 474 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide -or nationwide -significance. The Committee has identified this case as being of such significance. 3 CSAC and the League adopt the factual and procedural background of the case as set forth in the City of Anaheim's opposition to depublication, to be filed with this Court on March 12, In the interest of the Court's time, that background will not be repeated here.

2 Honorable Ronald M. George March 11,2010 Page 2 of4 have been favorable to the interests requesting depublication, the case clearly warrants publication under the couti rules and it was therefore within the Court of Appeal's discretion to order it published. For the reasons that follow, we urge this Court to reject the depublication requests. The Opinion Clearly Merits Publication Under the Court Rules California Rules of Court, rule does not provide guidance to the Court when being asked to consider a request for depublication. Therefore, the question before the Court is not whether the opinion should be depublished, but rather, whether publication in the first instance was proper. 4 To answer this question, the Court should consider the guidelines provided to appellate courts in California Rules of Court, rule (c), which sets forth the nine circumstances under which an appellate court may certify an opinion for publication in the Official Reports. The opinion in this case plainly merits publication under those standards. Applying and Explaining An Existing Rule o[law Rule (c)(2) and (3) provides that an opinion may be certitied for publication where it "[a]pplies an existing rule of law to a set of facts significantly different from those in published opinions" or "[m]odifies, explains, or criticizes with reasons given, an existing rule of law." The Court of Appeal made clear from the start that it was considering an existing rule of law in just this manner. The court begins its opinion by noting that People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740 (Clancy), permitted government attorneys to hire private counsel on contingency to try a civil case, but prohibited it "in a vaguely defined 'class of civil actions' that require 'a balancing of interests' and 'a delicate weighing of values'." (Priceline.com, Inc. v. City of Anaheim (20 I 0) 180 Cal.App.4th 1130, 1133.) The court goes on to make clear that it will be taking the existing rule of law set out in Clancy and deciding whether use of contingency counsel in the tax assessment proceeding at issue here is permitted or prohibited under the rule. The court below also explained that this case differs from Clancy in the level of oversight the government lawyer had over the contingency counsel. (!d. at p ) The court cited to the record to explain how both in formality (the contingency agreements) and in practice (declarations submitted by the city attorney concerning his management of the case), "the city attorney actively exercised his supervisory authority over the tax 4 Rule (a)(3) requires any person seeking publication to concisely state the person's interest and the "reason why the opinion should not be published."

3 Honorable Ronald M. George March 11,2010 Page 3 of 4 assessment proceedings." (!d.) The court compares this to the facts of Clancy, "in which a single contingency fee lawyer served as the sole 'special attorney' for the city in the public nuisance action." Those seeking depublication take issue with the court's reasoning in the opinion, and then assert that those issues with which they disagree will result in such confusion around the State that depublication is required. The City of Anaheim's opposition to depublication quite correctly explains why the opinion below was properly decided, and that no such hyperbolic confusion will ensue. But in addition, no matter where one comes out on the merits, this is clearly a case that both explains an existing rule of law and applies it to a new set of facts. This is precisely the type of case the court rules contemplate for publication. Reviewing the Development o[a Common Law Rule Rule ( c )(7) provides that an opinion may be certified for publication where it "[m]akes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law." This is clearly such a case. The prohibition against the government's use of contingency fee counsel in certain circumstances is not compelled by statute. Instead, it is a common law rule that culminated in the Clancy decision. The court below reviewed in detail the Clancy decision. (Price line, supra, 180 Cal.App.4th ) This review includes a discussion of the cases leading up to Clancy, and of the handful of cases on this issue decided since. The court also discusses federal and outof-state cases that inform how the Clancy rule might be applied in California. (Ibid. at ) This kind of careful review merits publication of the opinion, despite the disagreement that the depublication requestors have with the outcome. Involves a Legal Issue of Continuing Public Interest Rule (c)(6) directs the appellate courts that an opinion may be certified for publication where the case "[i]nvolves a legal issue of continuing public interest." That is clearly the situation with this case, where the issue of under what circumstances government lawyers can be aided by private counsel on contingency has attracted statewide attention. There were four amicus briefs filed in this case in the Court of Appeal. And as the depublication requests point out, a similar issue in the context of a public nuisance action is now pending before this Court. (County of Santa Clara v. Atlantic Richfield Co. (2008) 161 Cal.App.4th 1140, review granted Jul. 23, 2008 (S ).) In that case, there were at least 19 amicus briefs filed. Given the volume of

4 Honorable Ronald M. George March 11, 2010 Page 4 of4 interest both of these cases have generated, no elaborate argument is needed to demonstrate that the opinion below "involves a legal issue of continuing public interest." Conclusion For these reasons, CSAC and the League believe that the Fourth Appellate District properly certified this opinion for publication as it meets at least four of the nine certification standards, and therefore, we request that this Court leave that certification in tact. nnifer B. Hennmg, SBN Litigation Counsel California State Association of Counties Proof of Service Attached

5 Proof of Service by Mail Price line. com Incorporated, et al. v. City of Anaheim, eta! Case No. S I, Sharlene B. Miller, declare: That I am, and was at the time of the service of the papers herein referred to, over the age of eighteen years, and not a party to the within action; and I am employed in the County of Sacramento, California, within which county the subject mailing occurred. My business address is 1100 K Street, Suite 101, Sacramento, California, I served the within LETTER OPPOSING REQUEST FOR DEPUBLICATION, by placing a copy thereof in a separate envelope for each addressee named hereafter, addressed to each such addressee respectively as follows: Proof of Service List Attorney Party Darrell J. Hieber Plaintiffs and Appellants: Skaden Arps Slate Meagher & Flom LLP Priceline.com, Incorporated 300 S. Grand A venue, Suite 3400 Travelweb LLC Los Angeles, CA Lowestfare.com LLC Thomas R. Malcolm Plaintiffs and Appellants: Jones Day Hotels.com LP 3161 Michelson Drive, Suite 800 Hotels.com GP, LLC Irvine, CA Hotwire.com, Inc. Expedia, Inc. Travelnow.com, Inc. Jeffrey Alan Rossman Plaintiffs and Appellants: McDermott Will & Emery LLP Orbitz, Inc. 227 W. Monroe Street Orbitz, LLC Chicago, IL Trip Network, Inc. Internet Publishing Corporation

6 Attorney Party J. Chad Arnette Plaintiffs and Appellants: Brian S. Stagner Travelocity.com, Inc. Kelly Hart & Hallman LLP Travelocity.com, LP 201 Main Street, Suite 2500 Site59.com, LLC Fort Worth, TX Thomas R. Malcolm Jones Day 3161 Michelson Drive, Suite 800 Irvine, CA Gary Cruciani Defendants and Respondents: Steven D. Wolens City of Anaheim McKool Smith P.C. Curt Pringle 300 Crescent Court, Suite 1500 Jack White Dallas, TX Paul R. Kiesel Kiesel Boucher & Larsen LLP 8648 Wilshire Boulevard Beverly Hills, CA Patrick J. O'Connell Baron & Budd, P.C. 701 Brazos Street, Suite 650 Austin, TX Moses W. Johnson Anaheim City Attorney 200 S. Anaheim Boulevard, Suite 356 Anaheim, CA Alison Le Tsao Amicus Curiae for Appellant: Carlton DiSante et al., LLP National Federation of Independent 601 Montgomery Street, Suite 350 Business San Francisco, CA Edward Matthew Teyssier Amicus Curiae for Appellant: 3200 Highland Avenue, Suite 300 The Tax Foundation National City, CA Jana S. Leslie Staff Counsel/Council on State Taxation 122 C Street N. W., Suite 330 Washington, DC Amicus Curiae for Appellant: Council on State Taxation

7 Attorney Court of Appeal Fourth Appellate District Division Three 601 W. Santa Ana Boulevard Santa Ana, CA Party Court Appeal Case No. G Kevin D. McHargue Baron & Budd, P.C Oak Lawn A venue, Suite 1100 Dallas, TX Other David M. Axelrad Andrea Ambrose Horvitz & Levy LLP Ventura Blvd., 18 1h Floor Encino, CA Other and by placing the envelopes for cojjection and mailing following our ordinary business practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage prepaid. I declare under penalty of perjury under the Jaws of the State of California that the foregoing is true and correct. Executed on lfj1tzj.tt ; 0, at Sacramento, California. )_ SHARLENE B. MILLER