Petition for Review filed in Judicial Reference Case

Not surprisingly, the losing party in Treo@Kettner Homeowners Association v. Superior Court, has filed a petition for review in the California Supreme Court. In the petition (available here), filed by Charles Bird of the Luce Forward firm, the developer claims that the Court of Appeal decision refusing to enforce judicial reference provisions in CC&Rs squarely conflicts with Villa Milano Homeowners Association v. Il Davorge, 84 Cal. App. 4th 819 (2000), where the court enforced an arbitration provision in CC&Rs. (The Court of Appeal decision was discussed in a prior post, available here.) The petition surely seems right in stating that the same rules should govern enforceability of arbitration provisions and agreements for judicial reference; both provide valid methods of waiving a jury trial under Grafton Partners v. Superior Court, 36 Cal. 4th 944 (2005), since both have been approved by the Legislature. It also seems right in contending that the Court of Appeal decision presents an important issue of law--i.e., whether dispute resolution provisions in CC&Rs are valid as against non-signatories. It will be interesting to see what the Answer says in response. Stay tuned. (And thanks to Charles Bird for sending me the petition.)

Court of Appeal Clarifies "Full Text" Rule

When a local governing body approves a plan, but the approving ordinance merely incorporates the plan by reference rather than as an attached exhibit, does the plan have to be attached to a referendum petition seeking to submit the ordinance to the electorate? In a decision clearly foreshadowed by prior cases, the Court of Appeal for the First Appellate District, Division One, has answered this question "yes." In Defend Bayview Hunters Point Committee v. City and County of San Francisco (available here), the court held that the referendum petition failed to comply with the "full text" rule embodied in Elections Code Section 9238. Interestingly, the court expressly stopped short of holding that all documents incorporated by reference must be attached to a referendum petition. Instead, it summarized its holding as follows: "We do not hold here that all documents a local legislative body chooses to incorporate by reference in or attach to an ordinance must be included in a referendum petition. We hold only that when a central purpose of the ordinance is to adopt and enact into law the contents of an incorporated or attached document, a referendum petition on the ordinance does not satisfy Elections Code section 9238 unless it includes a copy of that document." The court also rejected the claim that this interpretation of Section 9238 violated the First Amendment, holding that the full text requirement did not reduce the number of available petition circulators, while serving the important state interest in providing information to potential referendum signers.

The decision is not particularly novel, inasmuch as prior cases such as Nelson v. Carlson, 17 Cal. App. 4th 732 (1993), had applied the full text rule and invalidated referendum petitions that did not contain exhibits to the challenged ordinances. However this was the first case that expressly considered the effect on the full text rule of incorporating by reference rather than by attachment. As such, its an important clarification of referendum law and one that referendum campaigns must heed at their peril

Court of Appeal Reaffirms That Initiative Can't Be Used To Compel Legislative Action

In Widders v. Furchtenicht, the Court of Appeal, Second Appellate District, Division Six, has reaffirmed that initiatives can only be used to enact statutes, not to compel future legislative action. In this decision (available here), the Court also held that the City Attorney had acted properly in seeking a judicial declaration that he had no duty to prepare ballot titles and summaries for two proposed (and clearly invalid) measures.

The two measures were clearly beyond the initiative power as construed in AFL-CIO v. Eu, 36 Cal. 3d 687 (1984), and Marblehead v. City of San Clemente, 226 Cal. App. 3d 1504 (1991). Of the two measures, one directed the local city council to “urgently consider and take measures” to deter or prohibit national chains or franchise operations within the city while the other ordered the city council to “urgently consider and take measures” to address affordable housing. However, neither measure enacted a statute. Accordingly, both were outside the initiative power which, under Article II, §8(a) of the California Constitution is limited to the adoption of “statutes.”

This decision breaks no new ground in its interpretation of the California Constitution. Indeed, the most mysterious thing about it is why the ACLU Foundation of Southern California decided to represent the proponent of the plainly invalid measures.

Court Holds That Domestic Violence Programs Can't Exclude Men

In an important decision, the Court of Appeal for the Third Appellate District has held in Woods v. Shewry (available here) that the State cannot constitutionally exclude men from domestic violence programs. The court held that the Equal Protection Clause of the California Constitution subjects gender-based classifications to strict scrutiny under Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1 (1971), and that the State could not prove that excluding men from certain domestic violence programs was necessary to further a compelling state interest. However, the court expressly refrained from holding that men and women had to be provided equal services. Instead, acknowledging that women were more often victims of domestic violence than men, and suffered greater injuriies than men when they were, the court said that "it may be appropriate to provide more and different services to battered women and their children. For example, a program might offer shelter for women, but only hotel vouchers for a smaller number of men."

Many things are interesting about this case, both doctrinally and factually. As a factual matter, the record seems very thin. While there was evidence in the record about the state programs that plaintiffs were attacking, which were programs that provided grants to individual service providers, the court made no reference to evidence that might have been adduced from individual providers or recipients of services. For example, the record apparently showed that all the grantees of one state program offered gender-neutral services, as did 85% of the grantees of the other program. From this the court deduced that the state had no compelling interest in funding grantees who were not gender neutral. But it would have been interesting to know whether the 15% of grantees that provided services only to women were providing different services than the other grantees, services that might have benefitted from a female-only clientele.

Moreover, while the court "reformed" the domestic violence definitions to make them gender-neutral, it did not specifically require that all grantees serve both men and women. To take the example given by the court, a shelter could be reserved for women as long as men got something, too, such as a hotel voucher. Does this mean that an organization that only operated a shelter for battered women could not get state funding? Or is the Equal Protection Clause satisfied as long as another grantee in the same area provided hotel vouchers?

Doctrinally, too, the case raises more questions than it answers. For one thing, the opinion's equal protection analysis starts out by saying that no equal protection scrutiny is required unless the two groups disparately affected by a challenged statute "are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” But then the court says, quite inconsistently, that because equal protection rights are individual, the fact that women experience violence more than men, and suffer greater injuries when violence occurs, is irrelevant to equal protection analysis. So strict scrutiny is required even though men and women are not similarly situated as victims of violence.

More broadly, the case assumes without much analysis that strict scrutiny applies to a grant program that provides government benefits rather than a statute that disadvantages a disfavored class. It's very much like saying that affirmative action should be treated the same as invidious racial discrimination. There are certainly federal cases in the area of race that approach this position, but does it accurately state California law? Stay tuned.

This case seems like a great candidate for Supreme Court review. I would be suprised if the decision doesn't stir up a big storm and if the California Supreme Court doesn't take it.

Court of Appeal Invalidates Extra Compensation for Los Angeles Judges

In a decision sure to raise at least a few judicial hackles, the Court of Appeal, Fourth Appellate District, Division One, has held that the County of Los Angeles may not give Superior Court judges in that county additional compensation over and above that provided by the Legislature. The decision in Sturgeon v. County of Los Angeles (available here) is based on Article VI, Section 19, which provides that the Legislature shall "prescribe compensation for judges of courts of record." Government Code Section 53200.3 authorized each county to provide to judges the same or similar benefits that it provides "to employees." Given the wide variety among county employees and their compensation, the Court held that this statute enbodied the sort of standardless discretion that violated the rule against delegation of authority set forth in cases like Kugler v. Yocum, 69 Cal. 2d 371 (1969). In reaching this conclusion, the court relied heavily on two prior attorney general opinions, the second of which had opined that the current version of Section 53200.3 was unconstitutional, as well as Martin v. County of Contra Costa, 8 Cal. App. 3d 856 (1971), which approved legislation that tied judicial compensation to that of "comparable" county employees.

This seems like an important issue that might well get reviewed by the California Supreme Court. On the other hand, it would be easy for the Legislature to fix the problem identified by the court--it need only pass a statute similar to the one upheld in Martin. Even if the statute were retroactive, it would not be a gift of public funds, for the reasons identified in the Sturgeon opinion.

Court of Appeal Upholds Taking Claim Under Californa Constitution

In Monk v. City of Rancho Palos Verdes (here), the Court of Appeal forthe Second Appellate District, Division One, has upheld a landowner's taking claim under the California Constitution. In doing so, the court reminded us that the Takings Clause of the California Constitution has a broader scope than its federal counterpart. Article I, Section 19 of the California Constitution provides: “Private property may be taken or damaged for public use only when just compensation . . . has first been paid to, or into the court for, the owner." In comparison, the Fifth Amendment of the federal Constitution states: “[N]or shall private property be taken for public use, without just compensation.”

Because the California Constitution requires compensation for damage as well as a taking, the court held that the California clause "protects a somewhat broader range of property values” than does the corresponding federal provision." However, aside from that difference, California courts have construed the clauses congruently. The Monk case did not involve the "damaged property" portion of the California Takings Clause, so the court relied on both federal and California authority.

On the merits the court held that plaintiff's property had been "taken" by a moratorium on development in a landslide area because it deprived the plaintiff of all economic use of his property. As a result the City had to show that developing plaintiff's property would cause "a reasonable probability of significant harm" that would justify that moratorium under nuisance law. The court held that the City had failed to make this showing where the record indicated merely that the stability of plaintiff's property was uncertain and there was no risk that development of plaintiff's property would cause harm to others.

Court of Appeal Holds Ban on Publishing Witness Testimony Unconstitutional

Who would have thought that a trial court could prohibit the publication of witness testimony by a single newspaper? An Orange County Superior Court thought so, but the Court of Appeal swiftly reversed the trial court's ruling, holding it an unconstitutional prior restraint, in Freedom Newspapers v. Superior Court (here). The Court's ruling reaffirms the important principle that the California Constitution gives more protection to free speech than the federal constitution. But since the trial court's order was plainly unconstitutional under both the federal and state constitutions, the court didn't have to spend much time on the provisions of the state's fundamental charter.