CITY OF TRACY Office of the City Attorney 325 East Tenth Street Tracy, CA 95376 209-831-4050 209-831-4153 fax attorney@ci.tracy.ca.us City Attorney's Department Spring Conference League of California Cities May 5-7, 2004 Debra E. Corbett, City Attorney Bill Sartor, Deputy City Attorney GENERAL MUNICIPAL LITIGATION UPDATE SUPPLEMENT For Cases Reported April 1, 2004 through April 20, 2004
II. Open Government and Ethics People v. Chacon, (Cal.App. 2 Dist. April 14, 2004 as modified on April 20, 2004) Entrapment by estoppel defense not available for City Attorney s alleged advice that conduct was lawful for felony Government Code section 1090 offense because City Attorney is not the government official with the authority to prosecute such offenses. Former city council member (later city manager) was charged with felony conspiracy to repeal an ordinance which would have kept the council member from immediately being appointed city manager after resigning as a council member. Before trial, city manager raised entrapment by estoppel defense (the defense ) based on the city attorney allegedly providing advise to the then council member (and later city manager) that her involvement in such immediate appointment would be in compliance with state law. The People moved to exclude testimony on the defense and trial court denied People s motion and indicated that it would entertain jury instructions on such defense. The People indicated that, under those circumstances, they could not proceed to trial, the trial court dismissed, and the People appealed. The appellate court ordered the dismissal reversed and directed the trial court to exclude evidence relevant to the defense of entrapment by estoppel and to refuse jury instructions based on that defense. Defense of entrapment by estoppel requires allegations that an authorized government official affirmatively told [defendant] that the proscribed conduct was permissible, and that [the defendant] reasonably relied on the government s statement. Here, defendant alleges that she relied on her subordinate, the city attorney s, advice and the district attorney not the city attorney has the requisite authority to prosecute felony violations. Alvarez v. Superior Court, (Cal.App. 2 Dist. April 20, 2004) Officer s refusal to cooperate with plaintiff s investigator after officer s name is disclosed (pursuant to successful Pitchess motion) as a person who filed complaint related to violence against officer whose records were sought deemed unavailable sufficient for plaintiff to obtain further discovery with supplemental Pitchess motion. Alvarez was arrested and charged with resisting an officer based on an incident that occurred at the County Jail. Alvarez filed a Pitchess motion and court ordered disclosure of the fact that another officer had submitted an internal complaint against the arresting officer for workplace violence roughly two years prior to Alvarez arrest. Alvarez investigator contacted the officer that made the complaint and that officer refused to speak with him. Alvarez filed supplemental Pitchess motions seeking additional discovery based on the officer being unavailable for testimony due to his lack of cooperation. Trial court denied motions. Appellate court reversed. Officer s refusal to discuss subject matter of his workplace violence complaint against arresting officer constitutes unavailability for purposes of supplemental Pitchess motion subject to in camera review of the uncooperative officer s statement. Page 1
Haggerty v. Superior Court, (Cal.App. 4 Dist. April 20, 2004) In civil action, Internal Affairs Report ordered disclosed pursuant to a successful Pitchess motion must first redact any portions reflecting the investigating officers thought processes, factual inferences, and deductions drawn by such officers. Plaintiff was incarcerated at a County Detention facility and brought a civil action against Deputy Haggerty alleging that Haggerty and another deputy beat him without cause. Prior to filing the action, plaintiff complained about the incident to the Sheriff s department and the department conducted an internal investigation of the incident. Plaintiff filed a Pitchess motion seeking discovery of material contained in Haggerty s personnel file, including the entire internal affairs investigation file for the incident. After two motions and two in camera hearings, the trial court ordered that the Internal Affairs Report be disclosed to plaintiff but stayed the order pending resolution of Haggerty s writ petition. The appellate court ordered disclosure of the Internal Affairs Report subject to limitations. Plaintiff showed good cause for discovery of the Internal Affairs Report and the report is highly probative of the issues but those portions of the report reflecting the investigating officers thought processes, factual inferences, and deductions drawn by such officers should be redacted prior to disclosure of the rest of the report. III. Elections Opinion of Bill Lockyer, Attorney General No. 04-109 (April 6, 2004) Ops.Cal.Atty.Gen. Relators applied to the Attorney General to file a quo warranto action to test the title to the offices of two city council members and a school district trustee. Mr. Monreal was a proponent of a successful recall election, which resulted in his being elected to the office of city council member for the City of Huron along with one other council member and also resulted in a school district trustee being elected. Relators alleged that Mr. Monreal was not a resident of the city or school district, but instead resided, and resides, in Fresno, when he acted as a proponent and thereafter. The Attorney General did not authorize a judicial challenge to the officers right to hold office because Relators had not made a substantial showing that a substantial issue of fact or law exists that requires judicial resolution. A public officer may have one or more residences outside the jurisdiction in question but [I]t is the officer s domicile that matters, and a person may only have one domicile at any given time. A determination of domicile rests on a combination of the officer s conduct and intent. Here, Mr. Monreal affirms his intent to reside in Huron and in the appropriate school district and his driver s license, proof of insurance, voter registration, voting practices and mailing address are all in Huron. Mr. Monreal s brother-in-law and neighbors confirm that he has lived in Huron during the relevant times. The apartment manager and listed tenant (at the Fresno address Relators claim is Mr. Monreal s residence) each confirm that Mr. Monreal is not a tenant and does not pay rent or utilities there. Page 2
V. Finance and Economic Development Barratt American, Inc. v. City of San Diego, (Cal.App. 4 Dist. April 9, 2004) Proposition 218 did not change the 30-day limitations period, under Code of Civil Procedure section 329.5, for filing a challenge to an assessment against real property for public improvements. City adopted resolution establishing facilities benefit assessment to fund projects such as streets, sewers, pipeline and police and fire protection for a certain area of City in which Barratt owned parcels it intended to develop as residential properties. Barratt filed an action challenging the validity of the resolution alleging, inter alia, that the resolution imposed a Proposition 218 assessment and was unconstitutional (under the California constitution) because it was not adopted in accordance with procedures, conditions, and limitations of [Prop. 218]. The City demurred based on Barratt s action being time barred under Code of Civil Procedure section 329.5 which provides a 30-day time period by which to file an action contesting the validity of an assessment against real property for public improvements. Barratt argued that Prop. 218 and the Prop. 218 Omnibus Implementation Act (Government Code sections 53570, et seq.) abrogated the 30-day statute of limitations provided under section 329.5. The trial court sustained the City s demurrer without leave to amend and Barratt appealed. Prop. 218 did not impliedly repeal, abrogate or otherwise invalidate Code of Civil Procedure section 329.5 because nothing in the plain language, or drafting history, supports a conclusion that the electorate or drafters intended to supplant the short 30-day time period for filing challenges. VI. Municipal Services and Utilities Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission, (9 th Cir. (Cal.) April 6, 2004) F.3d Transportation Commission s adopted strategy of reducing air pollution by agreeing to set a ridership increase target percentage is an overall goal or aspiration and not a binding obligation. In 1982, pursuant to the Clean Air Act, Regional Transportation Commission adopted a five-year State Implementation Plan (SIP) to reduce air pollution. The SIP included a strategy to agree to adopt a ridership increase percentage target over the 1982-1983 levels. The Commission estimated that the target would likely be 15% and subsequently adopted a target increase of 15%. By 1987, ridership had only increased by 6%. By 2001, ridership had only increased by 12.5%. Plaintiffs brought an action against the Commission. The District Court granted summary judgment in Plaintiffs favor and issued an injunction ordering the Commission to achieve the 15% increase. The Commission appealed and the Ninth Circuit reversed. Page 3
Although a SIP, once adopted by a state and approved by the EPA, becomes controlling, an agreement contained within the SIP to establish a ridership increase target is not. Courts may not enforce a SIP s overall objectives or aspirational goals. IX. Regulating Businesses and Personal Conduct San Remo Hotel L.P. v. San Francisco City and County, (9 th Cir. (Cal.) April 14, 2004) F.3d. For the purposes of regulatory takings for a monetary exaction, California state court analysis is equivalent to that which the 9 th Circuit would conduct, therefore issue preclusion applies for those facts and the law actually and necessarily decided by California court. Hotel owners sued City in federal district court alleging that City s hotel conversion ordinance is unconstitutional and that it resulted in a regulatory taking, both on its face and as applied. District court granted summary judgment to City and owners appealed. Federal appellate court ordered Pullman abstention at owners request, found the as-applied claim was not ripe, and deferred a final decision until owners had sought compensation in state court. Owners reserved their federal claims for adjudication in federal court. After the California Supreme Court rejected the state-law takings claim, owners went back to district court to adjudicate their federal takings claim. District court ruled, inter alia, that the doctrine of issue preclusion barred the federal takings claim and owners appealed. The 9 th Circuit affirmed the district court decision. California Supreme Court s analysis (rejecting applicability of Nolan/Dolan analysis to monetary exactions) is equivalent to the analysis the 9 th Circuit would conduct, thus, the factual and legal issues that the California Supreme Court actually and necessarily decided regarding the statelaw takings claim bar the owners from litigating those same issues in federal court. Opinion of Bill Lockyer, Attorney General No. 03-705 (April 7, 2004) Ops.Cal.Atty.Gen. A county owned and operated an airport next to a residential neighborhood. In 1987, the county formed a local airport district under the California Airport District Act and quitclaimed its interests to properties within the district s area conditioned on the properties remaining open for public use. Both before and after formation of the district, the neighborhood residents were allowed to use the neighborhood streets to taxi their airplanes between the airport and the residents individual properties. The county provided the district with funds to pay for some of the costs of road maintenance and the district assumed sole responsibility for such maintenance. The county continued to regulate the taxiing of aircraft on the streets and kept the streets on its official list of county highways. The Attorney General was asked to opine on which entity had the power to regulate aircraft operation on the streets and the Attorney General opined that the Page 4
county retained such power. The county s actions requiring the streets remain open for public use; providing maintenance funding; listing the streets as county highways; and not trying to repeal its ordinances regulating aircraft taxiing on the streets; combined with no court of competent jurisdiction ever having entered judgment terminating the status of the streets as county roads demonstrate that the streets remain part of the county road system. Airport Districts may exercise the powers expressly granted or necessarily implied. Here, the county did not expressly grant regulatory power over the neighborhood streets to the district and it is the local authority for the purposes of Vehicle Code section 21114 which allows a local authority to prescribe rules and regulations for limited taxiing of aircraft on public streets. Page 5