Tan` Public Law Update February 2014 ADD PICTURE Curses, foiled again! COURT OF APPEAL AFFIRMS LIMITATIONS ON STANDING TO SUE PUBLIC AGENCIES By Matthew D. Visick, Esq. Of Special Interest PUBLIC LAW... 5 LABOR AND EMPLOYMENT LAW... 9 ABOUT OUR LAW FIRM... 9 To obtain a free monthly subscription, visit: http://visitor.constantcontact.com/email.jsp?m=1101737815828
COURT OF APPEAL AFFIRMS LIMITATIONS ON STANDING TO SUE PUBLIC AGENCIES By Matthew D. Visick, Esq. 1 On February 3, 2014, the First District Court of Appeal issued its decision in Reynolds v. City of Calistoga et al., rejecting the contention that a mere allegation of governmental wrongdoing is sufficient to provide any citizen with taxpayer standing or public interest standing to sue a public agency. The decision confirms that taxpayer standing is only available to those who pay the tax that funds the allegedly wrongful activity. It also confirms that public interest standing is discretionary, and strongly suggests that it is inapplicable unless a plaintiff is seeking a writ of mandate. Matthew D. Visick, Esq. Partner Email: mvisick@bwslaw.com 1901 Harrison Street Suite 900 Oakland, CA 94612 Direct: 510.903.8838 Phone: 510.273.8780 Fax: 510.839.9104 The Challenged Expenditures In 1998, Napa County voters approved Measure A, a sales tax initiative measure that imposed a one half of one percent sales tax increase on retail transactions to fund watershed improvement and flood protection projects throughout the County, including projects in the City of Calistoga ( City ). The Napa County Flood Protection and Watershed Improvement Authority ( Authority ) evaluates requests for Measure A funding submitted by local agencies and determines whether proposed projects are eligible for Measure A funding. In 2009, the City requested, and the Authority approved, the use of Measure A funds to build a water tank that would address water supply reliability issues at the City s reservoir. Two years later, the City awarded a contract to build the water tank, with roughly half of the cost to come from Measure A funds. In 2011, shortly after the City awarded the contract to construct the water tank, Grant Reynolds, a San Diego resident, filed a Complaint against the City, its Mayor and four City Council members, and the Authority, (collectively, the Defendants ) claiming that use of Measure A funds to construct the water tank was a violation of Measure A. The Complaint also asserted that the Mayor and individual City Council members breached a fiduciary duty to Reynolds and other members of the public by using Measure A funds to construct the water tank. Reynolds sought a court order that would require the Defendants to return the Measure A funds already expended and prohibit further use of Measure A funds for construction of the water tank. The Defendants sought to dismiss the Complaint, arguing, among other things, that Reynolds lacked standing to bring a claim to enforce Measure A. The trial court agreed that Reynolds lacked standing and dismissed his claims on that basis. 1 Matthew Visick serves as the Assistant City Attorney for the City of Calistoga, and argued the Reynolds v. City of Calistoga et al. case before the Court of Appeal. Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 2
A Plaintiff Must Actually Pay the Tax Funding the Challenged Activity to Establish Taxpayer Standing Reynolds argued that he had taxpayer standing because he paid sales tax in Napa County that was subject to Measure A. The trial court disagreed. Looking to earlier cases on taxpayer standing, the trial court held that Reynolds could not establish taxpayer standing based on payment of sales tax because sales tax is imposed on the retailer, and not the consumer. On appeal, Reynolds argued that the trial court applied the taxpayer standing requirement too strictly. Citing to a long line of cases applying taxpayer standing liberally to allow citizens to challenge alleged governmental wrongdoing, Reynolds argued that the Court of Appeal should overturn the trial court s determination that he lacked taxpayer standing. Reynolds argued that any citizen should be able to assert taxpayer standing, regardless whether he or she actually paid the tax at issue, so long the claims alleged an illegal expenditure of government funds. The Court of Appeal acknowledged that the courts had applied taxpayer standing liberally to achieve its remedial purpose, but found that the requirement that a plaintiff actually pay the tax at issue was fundamental. Unless a plaintiff could establish that he or she had paid the tax at issue, the plaintiff could not establish taxpayer standing to bring its claim. Public Interest Standing is Discretionary, and Likely Inapplicable Outside the Writ of Mandate Context Reynolds also argued that he had public interest standing because he sought redress for alleged governmental misconduct. The trial court disagreed. The controlling authority described public interest standing as an exception to the general standing rules applicable only where a plaintiff could show a sharp duty and a weighty public need. The trial court, therefore, found public interest standing inapplicable because the issue in the case was restricted to local expenditure of funds raised through a local sales tax measure. Reynolds s arguments for public interest standing on appeal were similar to his arguments for taxpayer standing. He argued that public interest standing was applicable because he sought redress for alleged governmental malfeasance, and thus any citizen should have standing to bring a claim. In support, he cited to a line of cases finding public interest standing where a plaintiff sought to compel a governmental entity to comply with the law. Here again, Reynolds arguments essentially sought to eliminate the standing requirement in any case where a plaintiff alleged that the purpose of its suit was to remedy governmental misconduct. The Court of Appeal declined Reynolds attempt to extend public interest standing to his claims. It noted that all of the cases on which Reynolds based his public interest standing arguments were issued in the writ of mandate context, where the plaintiff sought to compel compliance with a duty, rather than redress past alleged malfeasance as Reynolds sought through his Complaint. The Court observed that extending public interest standing as broadly as Reynolds argued would render other standing requirements (like those Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 3
applicable to taxpayer standing) meaningless. Further, it observed that public interest standing is discretionary, and that Reynolds had not shown how the trial court abused its discretion in denying Reynolds public interest standing. Finally, the Court noted that, like the trial court, it did not perceive any sharp public duty or weighty public need for applying public interest standing in this case. Conclusion The decision in Reynolds v. City of Calistoga et al. is important for public agencies because it rejects the view that any citizen may bring suit for alleged governmental misconduct as a matter of right, and confirms that a potential plaintiff must establish standing through traditional means. Where a plaintiff attempts to establish standing based upon its taxpayer status, the decision confirms that the plaintiff must actually be the entity obligated to pay the tax at issue. Furthermore, the decision confirms that the public interest standing doctrine is likely limited to the writ of mandate context and, even there, its application is discretionary. Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 4
Burke, Williams & Sorensen, LLP, 2013, all rights reserved. The case law summaries with a link to the www.metnews.com web address are provided as a courtesy to Burke, Williams & Sorensen, LLP, its clients, and its prospective clients by the Metropolitan News-Enterprise. Metropolitan News-Enterprise, SOS and MNC are registered trademarks of the Metropolitan News Company. Summaries are copyrighted by Metropolitan News Company 2014, all rights reserved. The Public Law Update is edited by Stephen A. McEwen. Cover page photo is by Fotolia. PUBLIC LAW Ninth Circuit County s policy of denying applications for concealed-carry firearms permits, absent proof of good cause, was a near-total ban that in the context of the state s overall regulatory scheme, under which a concealed-carry permit is the only type of permit the county may issue violated the Second Amendment by precluding responsible, lawabiding citizens from carrying a weapon in public for the purpose of lawful self-defense in any manner. Peruta v. County of San Diego; filed February 13, 2014 http://www.metnews.com/sos.cgi?0214//1056971 Cite as 2014 S.O.S. 1056971 Plaintiff pled a cause of action under 42 U.S.C. 1983 by alleging that school s mandatory uniform policy unconstitutionally compelled speech by mandating students to wear a written motto on uniform shirts, and that the school s uniform policy was not content-neutral, since it contained a content-based exemption for nationally recognized youth organizations; policy implicated First Amendment protections and was subject to strict scrutiny. Frudden v. Pilling; filed February 14, 2014 http://www.metnews.com/sos.cgi?0214//12-15403 Cite as 2014 S.O.S. 12-15403 Court properly granted summary judgment for defendants on claim of Fourth Amendment violation by warrantless entry, where officers entered plaintiff s room to assess whether she needed to be involuntarily committed for mental evaluation after her social worker expressed concern for her deteriorating mental condition; officers were initially justified in entering her group home room under the emergency aid exception, as there was a reasonable basis to believe the woman was in need of emergency medical assistance justifying a welfare search. Plaintiff s claims of municipal liability on a failure-to-train theory failed, where plaintiff conceded that police department employed appropriate training material to guide officers responses to people suffering from mental illness. Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 5
Court improperly granted summary judgment on plaintiff s claim of unreasonable use of deadly force under a provocation theory, where after the initial entry plaintiff responded by threatening the police, so they stepped outside, drew their weapons, and forced their way back into her room at which time they shot her, as the use of force may have intentionally or recklessly provoked a violent confrontation when police committed an independent Fourth Amendment violation by unreasonably forcing their way back into her room. Plaintiff was permitted to bring claim under Title II of Americans with Disabilities Act, to determine whether officers reasonably accommodated her disability by forcing their way back into her room without accounting for her mental illness, since the statute applies to arrests. Sheehan v. City and County of San Francisco; filed February 21, 2014 http://www.metnews.com/sos.cgi?0214//11-16401 Cite as 2014 S.O.S. 11-16401 California Court of Appeal City did not exceed or abuse its discretion by waving a bidding irregularity, consisting solely of the absence of one page of bid bond from original bid, where it was beyond dispute that the irregularity was inconsequential because the city had, when it received the bid, all of the information it needed to determine that the party submitting it was the lowest responsible bidder. Bay Cities Paving & Grating, Inc. v. City of San Leandro (Oliver DeSilva, Inc.); First District, Div. Two; filed January 28, 2014, publication ordered February 13, 2014 http://www.metnews.com/sos.cgi?0214//a137971a Cite as 2014 S.O.S. A137971A Court properly denied minor s petition requesting relief from the requirement of Government Code 945.4 that claims be timely filed against a county, as minor did not file petition for relief from the requirement of a timely claim within one year from the accrual of her cause of action, where minor s cause of action accrued at the time she was abused or at the latest when her parents spoke at the sentencing of her abuser, rather than one year later when she obtained investigator s follow-up report that allegedly revealed the county s negligence. J.J. v. County of San Diego; Fourth District, Div. One; filed February 14, 2014 http://www.metnews.com/sos.cgi?0214//d062594 Cite as 2014 S.O.S. D062594 Court improperly found a city liable on a declaratory relief cause of action by applying equitable principles, as the judgment nullified the public entity immunity of Government Code 815, which precludes a finding of liability against public entities without express statutory authorization; no statute permits a finding of liability based on equitable principles. City did not owe a mandatory legal duty, an exception to public entity Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 6
immunity, to ensure that home purchasers did not overpay for housing which had been designated as low-income-price-restricted, where the purchasers were not the intended beneficiaries of the enforcement provisions of the Affordable Housing Program, which has intended beneficiaries of low and moderate income households. Tuthill v. City of San Buenaventura; Second District, Div. Six; filed February 10, 2014 http://www.metnews.com/sos.cgi?0214//b239668 Cite as 2014 S.O.S. B239668 Trial court properly applied Government Code 53804 and Health & Safety Code 33426.7 both of which provide that a city should not give financial assistance to a vehicle dealer that is relocating from one jurisdiction to the city s jurisdiction within the same market area when it prohibited the city from giving financial assistance to an auto dealer for the two years following its relocation; the Legislature did not intend the statutes to impose a never-ending prohibition on financial assistance to relocating dealers, but only to address the causal link between financial assistance and relocation. City of Palmdale v. City of Lancaster; Second District, Div. Eight; filed February 6, 2014 http://www.metnews.com/sos.cgi?0214//b243802 Cite as 2014 S.O.S. B243802 Public Utilities Commission s finding of need for power plant was unlawful, where it expressly relied on hearsay materials which did not come under any exception; uncorroborated evidence of a disputed factual matter does not constitute substantial evidence to support an administrative agency s finding. The Utility Reform Network v. Public Utilities Commission; First District, Div. Five; filed February 5, 2014 http://www.metnews.com/sos.cgi?0214//a138701 Cite as 2014 S.O.S. A138701 Court properly found that irrigation district had complied with Proposition 218 which ensures that all charges imposed on property owners are subject to voter approval in passing new water rates, where the district held a single protest election for rate increases, even when the rates charged would vary among different customer classes. Court erred by awarding attorney fees to individuals under Code of Civil Procedure 1021.5, where there was no substantial benefit conferred on the public by virtue of bringing the suit, since allegedly authorized fees associated with the equitable distribution of water were never presented to the court as the district had deleted them prior to the filing of the complaint. Morgan v. Imperial Irrigation District; Fourth District, Div. One; filed January 17, 2014, publication ordered February 4, 2014 http://www.metnews.com/sos.cgi?0214//d060146 Cite as 2014 S.O.S. D060146 Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 7
Plaintiff a resident of San Diego lacked standing to challenge city s use of Napa County s sales tax revenue; buying retail products in the county was insufficient to establish taxpayer status because the sales tax is imposed on the retailer and not the customer. Plaintiff lacked public interest standing, which grants state citizens standing to seek redress for government misconduct, where the allocation of public funds was already subject to county taxpayers suits and citizens with more immediate interests declined to file suit. Reynolds v. City of Calilstoga; First District, Div. Five; filed February 3, 2014 http://www.metnews.com/sos.cgi?0214//a136502 Cite as 2014 S.O.S. A136502 Court did not abuse its discretion in awarding fees to a receiver after city filed a nuisance abatement action and sought the appointment of a receiver pursuant to Health and Safety Code 17980, and receiver sold the property, as the fees were reasonable where homeowner abused the bankruptcy courts to thwart city s efforts to repair property and was deemed a vexatious litigant. Court cannot grant relief after a receiver sells property when the homeowner s failure to post an undertaking on appeal left the trial court free to grant the receiver s application for an order to sell the property, since the order of appointment becomes moot after a receiver has settled accounts and been discharged because the receiver and court no longer have control of the receivership. Homeowner failed to make a proper challenge to the court s in personam jurisdiction due to defective service, where homeowner did not make a timely motion to quash services prior to making a general appearance. City of Riverside v. Horspool; Fourth District, Div. Two; filed January 16, 2014, publication ordered January 30, 2014 http://www.metnews.com/sos.cgi?0214//e051500 Cite as 2014 S.O.S. E051500 Government Code 56103 a part of the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 that requires challenges to a local agency formation commission s approval of an annexation and a change in a sphere of influence be brought as a reverse validation action applies to any lawsuit seeking to set aside a LAFCO approval of an annexation or a change in a sphere of influence, whether brought under CEQA, the Reorganization Act, or both. Inadequacy of petitioner s counsel s legal research was not good cause for failure to comply with Code of Civil Procedure 863, which requires that proof of publication of the summons in a reverse validation action be filed within 60 days of the filing of the petition. Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (City of Ceres); Fifth District; filed January 28, 2014 http://www.metnews.com/sos.cgi?0114//f066544 Cite as 2014 S.O.S. F066544 Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 8
City clerk did not have the authority to change arguments in favor of or in opposition to municipal initiatives, or the accompanying statutorily required signature form identifying the author of an argument, where the city council authorized the mayor and mayor pro tempore to provide arguments in favor of and in opposition to municipal initiatives, and the arguments were to be published in a sample ballot, on behalf of the city council, as the name of the city council did not appear on the documents submitted in opposition to the initiatives and the clerk did not provide the registrar with information regarding the council s adoption of the argument against the initiatives. City clerk violated the Elections Code by not following the code s procedure, by not making changes in a signature block publicly available, instead providing the changes only to the registrar of voters for inclusion in the sample ballot. Vargas v. Balz; Fourth District, Div. Three; filed February 21, 2014 http://www.metnews.com/sos.cgi?0214//g047591 Cite as 2014 S.O.S. G047591 LABOR AND EMPLOYMENT LAW Ninth Circuit Retired employees association failed to raise a genuine issue of material fact regarding its allegation that its members had an implied vested right to the pooling of their health care premiums with those of current employees; a practice or policy extended over a period of time does not translate into an implied contract right without clear legislative intent to create that right, and plaintiff s evidence failed to demonstrate any such intent. Retired Employees Association of Orange County, Inc. v. County of Orange; filed February 13, 2014 http://www.metnews.com/sos.cgi?0214//12-56706 Cite as 2014 S.O.S. 12-56706 ABOUT OUR LAW FIRM At Burke, Williams & Sorensen, LLP, diversity precisely describes not only our demographic makeup, but also the scope of our legal expertise, both of which support our ability to fulfill your legal needs. We are as diverse as California itself. The broad range of our areas of expertise mirrors California s own vitality, with respected, proven practices in six general areas: Public Law Education Law Labor & Employment Law Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 9
Litigation Real Estate & Business Law Insurance Coverage Our firm has offices throughout California: Los Angeles Inland Empire Marin County Oakland Orange County Palm Desert Silicon Valley Ventura County 4831-1682-9976, v. 1 Burke, Williams & Sorensen, LLP www.bwslaw.com 800.333.4297 10