Vol. 37, No. 1 Winter 2014

An Official Publication of the State Bar of California Public Law Section

Inside this Issue

Substandard Designs and MCLE SELF-STUDY ARTICLE Better Technology—New (Check end of this article for information on how to access 1.0 self-study credit.) Developments in Design Immunity By Kimon Manolius, Christine Hiler Substandard Designs & Julie Veit Page 1 Message from the Chair: The 2014 Public Law Section! and Better Technology— By David H. Hirsch Page 9 Public Lawyer of the Year New Developments in Nominations Sought Page 11 Municipal Condemnation of Mortgage Loans Design Immunity By John Vlahoplus Page 15 By Kimon Manolius, Christine Hiler and Julie Veit* Enter the Public Law Section Student Writing Competition— Deadline May 12 Page 21

Police Liability for Tactical Conduct Preceding the Use of I. INTRODUCTION it, provide public agencies with the Force—The Implications of Hayes v. County of San Diego guidance necessary to establish Design immunity is a powerful tool By Michael R. Linden and design immunity and to protect Justin B. Atkinson Page 23 for public agencies. If established, themselves from dangerous condition it bars liability where a reasonable Legislation Update of public property lawsuits. As an By Kenneth J. Price Page 29 design feature approved in advance affirmative defense, design immunity 1 Litigation & Case Law Update of construction causes an injury. is particularly appropriate for 3 By Scott Dickey Page 31 Premised on the separation of powers summary judgment. doctrine, design immunity prevents This article provides an update on the judicial branch from interfering two important developments to this with or otherwise second-guessing otherwise relatively static doctrine. the discretionary design approval The first development is the of elected and appointed officials.2 California Supreme Court’s recent California Government Code section grant of review in Hampton v. County 830.6, and the cases interpreting of San Diego and Curtis v. County The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 of Los Angeles, cases questioning put the agency on notice that the before approving a substandard whether a public agency must prove physical conditions at the property design; and (2) assuming knowledge that an authorized employee who have changed rendering the of a substandard design, must approved a design knew it was original design dangerous. the entity show the official had 4 substandard. The court’s decision II. DOES DESIGN the authority to disregard those will impact the design immunity IMMUNITY REQUIRE standards before approving the KNOWING AND 13 doctrine significantly. No knowledge INFORMED APPROVAL substandard design elements? requirement suggests that public OF DESIGNS? In Hampton, plaintiffs sued the agencies might ignore deviations County of San Diego for failing to from applicable standards when To demonstrate an entitlement to provide sufficient sight distance at approving a design. Imposing a design immunity, public entities the intersection where they were knowledge requirement, on the must demonstrate that: (1) the design caused the accident; (2) the injured in a car crash.14 Because other hand, could weaken design design was “approved in advance there was no evidence that the immunity because proffered evidence of the construction [] by the approving engineer knew of the of an alleged substandard design 5 legislative body of the public entity substandard element, plaintiffs could defeat summary judgment. or by some other body or employee claimed that the public entity The second development involves exercising discretionary authority to did not show the engineer had 15 a decision that strengthens design give such approval” or was prepared authority to approve the plan. The immunity’s protections.6 When in conformity with standards trial court rejected this argument, changed physical conditions make previously so approved; and, (3) holding that evidence of proper a design dangerous, the immunity substantial evidence supports the delegation was sufficient to show 9 is lost.7 In Dammann v. Golden Gate reasonableness of the design. The that the engineer had the approval 16 Bridge, Highway and Transportation two cases currently pending before authority as a matter of law. Proof District, the First District Court the California Supreme Court, of knowledge was not required. of Appeal held that evidence Hampton and Curtis, focus on the 10 Plaintiffs argued on appeal that of changed physical conditions second element. where the design is substandard, must pertain to conditions at the Under section 830.6, there are three the entity must show that the property in question; technological different ways that a public agency approving engineer: (1) knew it was advancements implemented at other 8 can satisfy the second element to substandard, (2) elected to disregard facilities are not sufficient. Limiting show that the design was approved the standard, and (3) had the the type of evidence that constitutes in advance of construction : (1) the authority to do so.17 They cited Levin changed physical conditions limits legislative body can approve the v. State of California and Hernandez the ways in which an agency can lose design; (2) a body or employee given v. Department of Transportation, the its design immunity. discretionary authority can approve only two cases addressing this issue, the design; or (3) the design must 18 What do these developments mean for support. The Fourth District conform to approved standards.11 for public agencies? For public Court of Appeal disagreed, holding The narrow issue in Hampton and agencies seeking to obtain design that evidence that an engineer with Curtis is whether the exercise of immunity, design officials should approval authority as well as another discretionary authority delegated to document their design choices engineer approved the plans was an employee to approve a design, in as much detail as practicable, sufficient to meet the discretionary under the second prong, must be approval element as a matter of especially when they consider 12 knowing and informed. 19 and reject design options, and law. Refusing to infer a knowledge particularly when designs deviate Specifically, the Hampton plaintiffs requirement into the language of from existing standards. For those raise the following questions: section 830.6, the court explained: seeking to retain design immunity, (1) must an entity demonstrate that [w]e respectfully disagree with staff should track whether accidents an official consciously decided to Levin and Hernandez to the occur or claims arise that would deviate from applicable standards extent they suggest that a public 2 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

entity attempting to establish the official knew about deviations which suggest that courts should discretionary approval element of from applicable design standards assume an approving official a design immunity defense must before approving the design in was diligent in considering all establish an exercise of informed question.26 Knowledge of deviations relevant aspects of a design.32 To discretion and that evidence assumes the official has knowledge hold otherwise would allow a jury that the public entity failed to of applicable standards. Plaintiffs or court to simply reweigh the adhere to standards pertaining argue that public agencies must considerations of the public official to an element of a design plan 33 constitutes evidence of a lack show that the authorized official had who approved the design. knowledge of an alleged deviation of discretionary approval of the Specifically, if courts were to require design. The text of section 830.6, and that he or she consciously 27 public agencies to present evidence from which the discretionary disregarded it before approval. In of knowledge of substandard approval element is derived, does response, the public agencies—and designs, plaintiffs could simply not contain any requirement of the Fourth and Second District 20 introduce conflicting evidence informed discretion. Courts of Appeal—maintain that to defeat summary judgment. an authorized official’s signature on Indeed, the court found section Regardless of whether a design a set of plans is sufficient evidence 830.6 only requires evidence that is in compliance with applicable the entity appropriately delegated that all aspects of the design standards, plaintiffs could discretionary approval or evidence were considered, including any 28 accomplish this by challenging that the plan conformed with substandard elements. whether : (1) the proper standards 21 previously approved standards. The California Supreme Court’s were applied; (2) there is a deviation The Fourth District concluded that resolution of this issue will have from a particular standard; and design immunity’s second element significant ramifications for public (3) the authorized official had was satisfied with proof that the agencies attempting to meet design knowledge of the deviation. official who approved the plans immunity’s second element. On had proper authority to do so.22 This exact scenario occurred one side, while there is support for Nothing more was required. in Hernandez v. Department of the Fourth and Second Districts’ Transportation.34 There, the court Similarly in Curtis, a motorist brought general holdings that design approval refused to find design immunity suit against the County of Los Angeles by an authorized official is sufficient where there was conflicting evidence for injuries sustained on a roadway evidence to satisfy the second as to whether the off-ramp design at that lacked a median barrier.23 element, none of the cases cited by issue deviated from the applicable Plaintiffs claimed that the county did either court involved approval of a guardrail standards.35 This also 29 not establish the second element of substandard design. For example, occurred in Hampton, where the design immunity because there was in Alvis v. County of Ventura, upon parties disputed whether the sight no evidence that an authorized official which the Fourth District relied, distance at the subject intersection properly considered the standards the court held that the Board of was substandard.36 Resolution of governing installation of median Supervisors approval of a design that factual issue was rendered barriers prior to approving the design did not need to demonstrate that moot, however, when the court held with no such barrier.24 Like the Fourth it knew of all comments received that the county need not prove that 30 District in Hampton, the Second during the design process. The the official had knowledge of the District affirmed the trial court’s grant Board could rely on its staff. Alvis allegedly substandard design.37 of design immunity, finding that is distinguishable, however, given evidence that the county delegated that approval was not delegated to On the other hand, should authority to the engineer who approved an employee and plaintiff did not the court adopt the view that the plans was sufficient.25 allege that the design deviated from knowledge is not required when existing statutes or guidelines.31 approving substandard designs, Thus, the key issue in Hampton and the design immunity doctrine may Curtis is whether a public agency Nonetheless, design immunity is be diluted. Certainly, as a policy must establish that an authorized based upon deferential policy goals, matter, agencies should not rely on 3 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 officials who blindly approve plans III. DO TECHNOLOGICAL entity was unable to remedy the ADVANCEMENTS without accounting for applicable CONSTITUTE condition because of impossibility standards or deviations therefrom. CHANGED PHYSICAL or lack of funds and had not taken CONDITIONS? Levin, Hernandez, and indeed the reasonable measures to provide 46 evidence plaintiffs proffered in Another significant development adequate warnings. Once a public 38 Hampton, support that view. pertaining to design immunity is entity asserts the affirmative defense the First District Court of Appeal’s of design immunity, the plaintiff For example, if Levin had not decision in Dammann v. Golden Gate has the burden to show that an required proof of knowledge of Bridge, Highway and Transportation issue of triable fact exists for all substandard design elements, the District, which provided much-needed three elements necessary to establish 47 state would have enjoyed design guidance on how agencies can lose changed conditions. immunity even though the subject design immunity through “changed road was designed with a substandard 41 The most litigated issue—and conditions.” The Dammann court the highest hurdle for plaintiffs shoulder and no guardrail, yet held that the advancement of to overcome—is whether there there was no evidence that the state technology alone did not constitute is a changed physical condition engineer considered the existing a changed condition to undermine at the subject property. Courts standards calling for guardrails under existing design immunity.42 the circumstances.39 In Hampton, the have recognized only two types county obtained design immunity Public agencies lose their design of evidence of “changed physical despite plaintiffs’ evidence that the immunity when “changed conditions”: (1) an increase in traffic volume; and, (2) vehicles sight distance at the intersection in conditions” render the design 43 traveling at higher speeds on the question was substandard according dangerous. Baldwin v. State of roadway in question.48 In fact, to the county’s standards, and despite California first recognized this doctrine when it held that public most cases focus on what does not the lack of evidence that the county’s 49 40 constitute a changed condition. engineer considered the deviation. entities do not retain their design immunity in perpetuity, but lose it As design immunity exists to prevent The First District built upon if they “close their eyes” and ignore the judicial branch from second- that precedent by addressing the when “in its actual operation under guessing discretionary approvals by increasingly common question changed physical conditions” the authorized public officials, the efficacy of whether the availability of new property “produces a dangerous of the doctrine is undermined where technology that arguably might make condition of public property and those officials are uninformed about 44 a public facility safer constitutes a causes injury.” In 1979, the basic standards and guidelines. changed condition for purposes Legislature amended Government of design immunity.50 Dammann Whatever the California Supreme Code section 830.6 to incorporate 45 involved a May 2008 head-on Baldwin’s holding. Court decides, public agencies collision on the Golden Gate should adhere to the best practices To demonstrate loss of design Bridge.51 The plaintiffs alleged that outlined in these cases. Officials immunity, a plaintiff must establish the absence of a median barrier with delegated authority should that: (1) the plan or design has on the bridge rendered the public document: (1) every element become dangerous because of a property a dangerous condition.52 considered or rejected; (2) whether change in physical conditions; Citing Sutton v. Golden Gate Bridge the design satisfies or deviates from (2) the public entity had actual or District, Highway & Transportation applicable standards; and (3) the constructive notice of the dangerous District, which granted the District reasons for deviations, if any. The condition thus created; and (3) the design immunity for its 1985 more care that agencies take in public entity had reasonable time to decision not to install a moveable explaining and documenting their obtain the funds and complete the median barrier on the bridge, the reasons for choosing or rejecting necessary remedial work to bring the Bridge District moved for summary design elements, the better insulated property back into conformity with judgment arguing that there were their decisions are from review. a reasonable design; or the public no changed physical conditions that 4 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

undermined Sutton’s finding of design not err in granting the District’s pose new and different risks. As one immunity.53 Plaintiffs opposed motion for summary judgment.”62 court explained “an old mousetrap the motion, arguing that when the may still work effectively even after This decision reflects sound public 68 1985 decision was made, the only someone invents a better one.” policy and represents a key victory available technology was a two-foot for public agencies. Importantly, Moreover, a contrary holding wide moveable median barrier, which Dammann properly recognized the would be financially debilitating to was not appropriate for installation separation of powers between courts public agencies. It would require on the Golden Gate Bridge due to and the legislative branch that is the continuous incorporation narrow lane widths and absence of 54 central to the design immunity of technological advancements shoulders. After all, the Golden 63 doctrine. Had the court issued to maintain design immunity Gate Bridge opened to the public 55 a contrary ruling, it essentially protection on any public property in 1937. Noting technological would have made safety the sole and create an endless revolving door advances, plaintiffs argued that a and determinative factor that public of litigation, as there are always new one-foot moveable median barrier entities must consider in choosing a available technologies. Dammann had existed for almost 20 years and design. This result would undermine eliminated the uncertainty about had been installed successfully on public entities’ inherent discretion whether technological advances the Auckland Harbour Bridge in in balancing competing interests in constitute changed conditions, and New Zealand and the Coronado 56 public projects, shifting that authority with it the need to litigate similar Bridge in San Diego, California. to the judicial branch in contravention issues in the future. Plaintiffs claimed that the availability of the Legislature’s intent.64 of this new technology constituted a IV. CONCLUSION changed condition creating an issue Safety is just one of many factors The California Supreme Court’s of fact as to whether the District had public officials must balance when decision to review Hampton and lost its design immunity.57 choosing a particular design, Curtis—regardless of the outcome— including overall traffic volume, and the Court of Appeal decision The First District rejected this accident history, available funds, 65 in Dammann, provide key takeaways argument. The court surveyed and other factors. While certainly that public entities should the history of “changed physical critical, analyzing safety is not always incorporate into their best practices: conditions” decisions, including the black-and-white. For example, it is 1979 amendment to Government widely-accepted that median barriers 58 • Document every design element Code section 830.6. It then result in trade-offs, preventing the agency considers, including concluded that evidence of changed nearly all cross-median accidents, those that were rejected; physical conditions must be “at but causing an overall increase 59 • Document whether the design the public property in question.” in accidents due to deflections.66 satisfies applicable statutes Nothing in the 1979 amendment Another illustration is evident when 60 or guidelines; altered that conclusion. Further, considering the new Bay Bridge. prior case law, including the While the bridge certainly uses more • Document whether there are California Supreme Court’s 2001 advanced technology and materials any deviations from applicable decision in Cornette v. Department of than its 76-year-old neighbor, must statutes or guidelines; Transportation, along with almost all the District replace the Golden Gate • Document the reasons other courts that had reviewed this Bridge’s suspension cables to match explaining any deviations; issue, at least implicitly supported the design of its new neighbor to the this conclusion.61 Thus, the court east? The Golden Gate Bridge allows • Continually monitor the concluded “that the technological 40 million vehicles to travel safely design and determine whether advances relied on by [plaintiffs] between Marin and San Francisco there are changed conditions; do not constitute the required counties annually, even though it was • If the design is a roadway, pay 67 ‘changed physical conditions’ and, designed and built long ago. New particular attention to traffic therefore, that the trial court did technology may increase safety, but volumes and accident rates. 5 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

Following these practices will hinder Endnotes 12 Petition for Review at 1, Hampton v. County of San Diego, 310 P.3d 937 plaintiffs’ ability to attack an agency’s 1 Cal. Gov’t Code § 830.6 (2013). design immunity and/or prevent an (2013) (No. S213132); Petition for 2 Laabs v. City of Victorville, 163 Cal. agency from obtaining design immunity Review at 28-29, Curtis v. Cnty. of App. 4th 1242, 1262 (2008); see also in the first place. Similarly, these Los Angeles, 310 P.3d 937 (2013) Arreola v. Cnty. of Monterey, 99 Cal. (No. S213275). practices will help agencies to retain App. 4th 722, 757 (2002); Cornette 13 See Petition for Review at 1, design immunity once established. v. Dep’t of Transp., 26 Cal. 4th 63, 69 Hampton, 310 P.3d 937; see also (2001); Cameron v. State of California, *Kimon Manolius Petition for Review at 28-29, Curtis, 7 Cal. 3d 318, 326 (1972). is a partner at 310 P.3d 937. Hanson Bridgett 3 Grenier v. City of Irwindale, 57 Cal. 14 Hampton, 218 Cal. App. 4th at 290. LLP, who manages App. 4th 931, 940, n. 5 (1997). the firm’s Public 15 Id. at 294. Agency Litigation 4 See Hampton v. County of San Diego, 16 Id. at 296. Section. He 218 Cal. App. 4th 286 (2013), rev. frequently litigates granted 2013 Cal. LEXIS 8655 17 Id. on behalf of public (October 23, 2013); Curtis v. County 18 Petition for Review at 6, Hampton, agencies in the areas of Los Angeles, 218 Cal. App. 4th 310 P.3d 937. of transportation 366 (2013), rev. granted 2013 Cal. 19 Id. at 304. and transportation LEXIS 8656 (Oct. 23, 2013). funding, civil rights, 20 Id. at 300-02. code enforcement, 5 See, e.g., Hernandez v. Dep’t and writ defense, of Transp., 114 Cal. App. 4th 21 Id. at 302. and also has an 376, 388 (2003) (issue of fact 22 Id. at 304. extensive appellate created where parties presented 23 Curtis, 218 Cal. App. 4th at 368-69. practice. conflicting evidence whether 24 Id. at 207-08. Christine Hiler the entity followed the proper is a litigator who standards). 25 Id. at 208. represents public 6 Dammann v. Golden Gate Bridge, 26 Petition for Review at 1, Hampton, agencies in a Highway & Transp. Dist., 212 310 P.3d 937; see also Petition for wide array of Review at 28-29, Curtis, 310 P.3d 937. matters, including Cal. App. 4th 335, 354 (2012), litigating dangerous reh’g denied (Jan. 10, 2013), rev. 27 See, e.g., Curtis, 218 Cal. App. 4th condition/design denied (Mar. 27, 2013) (holding at 383. that technological advances do immunity actions and handling claims for 28 See id. at 380 (presenting the public entities. Christine also specializes in not constitute “changed physical construction plans that were insurance recovery, representing policyholders conditions” which defeat design approved as evidence of the in connection with coverage disputes under immunity). general liability, directors and officers liability, proper discretionary authority); employment practices liability, and other 7 See Cal. Gov. Code § 830.6; see also Hampton, 218 Cal. App. 4th at policies. She is Senior Counsel in Hanson Dole Citrus v. Cal., 60 Cal. App. 4th 304 (relying on Becker v. Johnston Bridgett’s San Francisco office. 486, 490 (1997). 67 Cal.2d 163, 172–173 (1967), Julie Veit is a litigator who represents public 8 Dammann, 212 Cal. App. 4th at 354. Laabs, 163 Cal. App. 4th at 1262; sector clients on issues ranging from civil 9 Cal. Gov’t Code § 830.6 (emphasis Grenier v. City of Irwindale, 57 rights and tort defense to petitions for added); see also Cornette, 26 Cal. 4th Cal.App.4th 931 (1997)); see also writ of mandate. Julie also provides risk at 69 (2001); Alvarez v. State, 79 Cal. Curtis, 218 Cal. App. 4th at 380 management advice, frequently counseling App. 4th 720, 727 (1999). (relying on Sutton v. Golden Gate public agencies on Government Claims Act, Bridge, Highway & Transportation Brown Act and Public Records Act questions. 10 Hampton, 310 P.3d at 937 (2013); Dist., 68 Cal.App.4th 1149 (1998) She is Counsel at Hanson Bridgett’s San Curtis, 310 P.3d at 937 (2013). and Wyckoff v. State of California, Francisco office. 11 Cal. Gov’t Code § 830.6. 90 Cal.App.4th 45 (2001)). The authors would also like to thank Christopher K. Spiers, a law clerk in Hanson Bridgett’s San Francisco office, for his assistance with this article.

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29 See Becker v. Johnston, 67 Cal.2d 43 Cornette, 26 Cal. 4th at 66. 59 Id. at 348. 163, 172–173 (1967) (there was no 44 Baldwin v. State of California, 6 60 Id. at pp. 351-54. deviation from a standard at the Cal. 3d 424, 438 (1972). 61 Cornette, 26 Cal. 4th at 63. Other time the design was approved); 45 The 1979 Amendment added cases have followed the reasoning Laabs, 163 Cal. App. 4th at 1262 the following language: in Cornette. See, e.g., Alvarez, 79 (no discussion of a deviation from “Notwithstanding notice that Cal. App. 4th at 720, Sutton, 68 statutory guidelines); Grenier, constructed or improved public Cal. App. 4th at 1149; Grenier, 57 57 Cal.App.4th 931 (1997) (no property may no longer be in Cal. App. 4th at 931; Dole Citrus, discussion of a deviation from conformity with a plan or design 60 Cal. App. 4th at 486; Mirzada a statutory guideline); Sutton or a standard which reasonably v. Department of Transportation, 111 v. Golden Gate Bridge, Highway could be approved by the Cal.App.4th 802 (2003); Compton & Transportation Dist., 68 Cal. legislative body or other body or v. City of Santee, 12 Cal. App. App.4th 1149 (1998) (the court employee, the immunity provided 4th 591 (1993); cf. Bane v. State of acknowledged that the public by this section shall continue California, 208 Cal. App. 3d 860, agency complied with the CalTrans for a reasonable period of time 864 (1989) abrogated by Cornette, guidelines); Wyckoff v. State of sufficient to permit the public 26 Cal. 4th at 63. California, 90 Cal.App.4th 45 entity to obtain funds for and (2001) (the court determined that 62 Dammann, 212 Cal. App. 4th at 354. carry out remedial work necessary the evidence presented in the case 63 Id. at 345. to allow such public property to showed that the States’s policy did be in conformity with a plan or 64 Id. at 346 (citing Sutton, 68 Cal. not call for a median barrier so design approved by the … public App. 4th at 1158). there was no deviation from the entity … or with a plan or design standard); see also Hampton, 218 Cal. 65 See, e.g., Alvarez, 70 Cal. App. 4th in conformity with a standard App. 4th at 298-299; see also Curtis, at 723. previously approved by such 218 Cal. App. 4th at 379-382. 66 Traffic Manual (1996 Metric Version legislative body … or employee.” with updates) as effective on May 30 Alvis v. Cnty. of Ventura, 178 Cal. Gov’t Code section 830.6. App. 4th 536, 552-53 (2009). 19, 2004, California Department of 46 Cornette, 26 Cal. 4th at 66. Transportation, Ch. 7-04.1-7.04.1, 31 Id. at 505-09. 47 Laabs, 163 Cal. App. 4th at 1268. 7-35 (last updated 1/5/12). 32 Hampton, 218 Cal. App. 4th at 303. 48 Wyckoff , 90 Cal. App. 4th at 45 67 Annual Vehicle Crossing and 33 Laabs, 163 Cal. App. 4th at 1262; (addressing an increased amount Toll Revenues, FY 1938 to see also Arreola, 99 Cal. App. 4th of traffic on a particular roadway). FY 2011, available at http:// at 757 (2002); Cornette, 26 Cal. goldengatebridge.org (last visited 49 Continuing Education of the Bar, 4th at 69. Dec. 5, 2013). California Government Tort Liability 34 See Hernandez, 114 Cal. App. 4th Practice §12.74B (4th ed. 2013). 68 Dole Citrus, 60 Cal. App. 4th at 494. at 376. 50 Dammann, 212 Cal. App. 4th at 354. 35 Id. at 388. 51 Id. at 338. 36 Hampton, 218 Cal. App. 4th at 290. 52 Id. at 340. 37 Id. at 304. 53 Id. at 346 (citing Sutton, 68 Cal. 38 See Hernandez, 114 Cal. App. 4th at App. 4th at 1158). 380, 388; see also Hampton, 218 Cal. 54 Id. at 339. App. 4th at 292-294; see also Levin, This article is available as a complimentary online self-study CLE article for members of the 145 Cal. App. 3d at 415-418. 55 Key Dates: Golden Gate Bridge Public Law Section. and Highway Transportation 39 Levin, 146 Cal. App. 3d at 415-18. Visit the members only area at District, available at http:// http://members.calbar.ca.gov/sections/publiclaw/ 40 Hampton, 218 Cal. App. 4th at goldengatebridge.org (last visited for your coupon code and instructions on how to 293-94. Dec. 5, 2013). access the online self-study articles. 41 Dammann, 212 Cal. App. 4th at 56 Id. at 339. 341, 343-54. 57 Id. 42 Dammann, 212 Cal. App. 4th at 354. 58 Id. at 343-49.

7 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

public law JouRnal Public Law Section www.calbar.ca.gov/publiclaw – Mission Statement – CO-EDITORS Elizabeth Pianca The mission of the Public Law Section is to ensure that laws relating to the function and operation [email protected] of public agencies are clear, effective and serve the public interest; to advance public service through Deputy County Counsel, Santa Clara County public law practice; and to enhance the effectiveness of public law practitioners. The Section focuses Brian E. Washington on addressing issues related to administrative law, constitutional law, municipal law, open meeting laws, [email protected] political and/or election law, education law, state and federal legislation, public employment, government Chief Assistant County Counsel, Alameda County contracts, tort liability and regulations, land use/environment issues, and public lawyer ethics. ASSISTANT EDITORS Melissa M. Crosthwaite The Section provides topical educational programs, seminars and resource materials; works to enhance [email protected] the recognition of, and participation by, public law practitioners in the State Bar; presents its annual Assistant City Attorney, Hawthorne Ronald M. George Public Lawyer of the Year award to public law practitioners who have made significant K. Scott Dickey and continuous contributions to the profession; and publishes the quarterly Public Law Journal. [email protected] Renne Sloan Holtzman Sakai LLP – Executive Committee Roster –

David H. King CHAIR Melissa M. Crosthwaite [email protected] David H. Hirsch Hawthorne Jenkins & Hogin, LLP San Luis Obispo Bryan Otake Michelle Marchetta Kenyon [email protected] VICE-CHAIR Oakland Senior Deputy General Counsel K. Scott Dickey Metropolitan Water District of Southern California San Francisco David H. King Manhattan Beach Kenneth J. Price TREASURER [email protected] Brian E. Washington Bryan Otake Baker Manock & Jensen PC Oakland Los Angeles Scott C. Smith [email protected] SECRETARY Elizabeth Pianca Best Best & Krieger LLP Janine A. Sarti San Jose San Diego Rachel Sommovilla Kenneth J. Price [email protected] IMMEDIATE PAST CHAIR Fresno Assistant City Attorney Jodi L. Cleesattle Richmond San Diego Randy E. Riddle Design & Production San Francisco Documation, LLC MEMBERS www.documation.com John M. Appelbaum Scott C. Smith Sacramento Irvine SubmiSSionS Ryan M. Baron Rachel H. Sommovilla Santa Ana Richmond We solicit original manuscripts on public law topics. Authors are encouraged to communicate with editors about a topic prior to preparing and submitting an article. Nelson H. Chan Elk Grove Manuscripts should be no more than 3,000 words. The editorial staff reserves the right to edit submitted manuscripts – Advisors & Staff – as necessary. Edited manuscripts will be sent to authors for approval only where extensive revision might affect an article’s substance. Manuscripts should be sent to the editor at address above. MCLE self-study credit up to 12.5 hours may be Saul Bercovitch Leslie M. Gallagher Michael Mullen available to published contributing authors. Sections Legislative Sacramento Web Coordinator Representative San Francisco RepRintS and SubScRiptionS San Francisco Clark E. Gehlbach Inquiries regarding reprints and subscriptions should be Board Liaison Kristina Robledo addressed to Kristina Robledo, State Bar of California, Justine R. Block Roseville Section Coordinator [email protected], (415) 538-2467. Los Angeles San Francisco Douglas P. Haubert diSclaimeR Natalie P. Bocanegra Long Beach Luis J. Rodriguez Sacramento Board Liaison The statements and opinions here are those of editors Jonathan L. Kramer Los Angeles and contributors and not necessarily those of the Sheryl L. Bratton Los Angeles State Bar of California, the Public Law Section or Santa Rosa Nancy K. Schreiner any government body. This publication is designed to Bonnie C. Maly Ventura provide accurate and authoritative information regarding the subject matter covered, and is made available with Jacqueline M. Carey-Wilson CEB Liaison the understanding that the publisher is not engaged San Bernadino Oakland Pamela Wilson in rendering legal or other professional service. If legal Director of Sections advice or other expert assistance is required, the services Betty Ann Downing Donna R. Mooney San Francisco of a competent professional should be sought. Long Beach Vallejo

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8 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 Message from the Chair By David H. Hirsch*

THE 2014 PUBLIC LAW SECTION!

Welcome to the Winter 2014 Our Education Committee recipients are lawyers who edition of the Public Law Journal. organizes many fine webinars and represent the highest level of I’m honored and privileged to seminars, including programs at professional and ethical standards serve as the Public Law Section the State Bar Annual Meeting. In and who are inspirational Chair for the upcoming year. We addition, last April we launched advocates for the public interest. have over 1400 members. I’m our inaugural California Public The award is named after retired sure many of you are not familiar Records and Open Meetings California Supreme Court Chief with the Section beyond getting Conference to a sellout audience Justice Ronald M. George, who of nearly 100 attendees. The traditionally spoke at the award the quarterly editions of the Public program, which was conducted in ceremony and introduced the Law Journal with its many fine Los Angeles, was a huge success year’s winner. Chief Justice, Tani and informative articles, and the and provided attendees with 7.5 Cantil-Sakauye, has continued Section’s E-news updates. The hours of MCLE credit, including the tradition and has presented Public Law Section is one of the one hour of ethics credit. In 2014 the award since becoming Chief sixteen Sections of the State Bar, the Section will again be providing Justice. Nominations for this and is governed by an Executive another Public Records and Open year’s Award are due by March 17, Committee. The real work, Meetings Conference to be held 2014. More information about the however, is performed by our many in Northern California so that Public Lawyer of the Year Award subcommittees. The beginning folks in that part of the State have is available at www.calbar.ca.gov/ of a new year provides a good the opportunity to attend. Our publiclaw if you want to nominate opportunity to recap some of the Public Records Act Conference a deserving colleague or friend. activities of the Public Law Section Committee is hard at work inviting Among our other programs is a and things we will be doing in the speakers and organizing the student writing competition, so upcoming year. panels. Watch for announcements and register early, since we again if you know of any law students In addition to our flagship anticipate this popular event will who might be interested please publication, the Public Law be another sell out. encourage them to participate. The deadline for submittal is Journal, our Publications One of our signature activities and May 12, 2014. We offer a great Committee is also responsible for events each year is the selection prize. Not only does the winner preparing the Section’s E-news, in of the recipient of the Ronald get $2000 in cash, but their order to keep our membership M. George Public Lawyer of the article is published in the Public informed about important news Year Award, which is coordinated Law Journal. To top it off, the and events. We also have been by our Public Lawyer of the Year winner gets to attend the Ronald making an ongoing effort to use Committee. This prestigious M. George Public Lawyer of the Social Media as a way to engage Award recognizes an exceptional Year Award reception sponsored our membership through Facebook lawyer who has dedicated a by the Public Law Section at the and Twitter, under the guidance of significant portion of his or her State Bar’s Annual Meeting and our Social Media Committee. career to public service. Award is acknowledged at the meeting.

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The recipient’s reasonable young attorneys interested in public *David Hirsch transportation and hotel and regulatory law careers an is with the accommodation expenses for two opportunity to meet and interact firm Carmel & nights are also paid by the Public with some prominent members of Naccasha in San Law Section. the Bar in an informal setting, to Luis Obispo. The firm represents learn about public law as a career. In a new outreach effort our seven public entities on the Membership Committee recently Finally, the Public Law Section is Central Coast, and David currently serves held panel discussions and creating a mentoring program in as Assistant City Attorney for the City receptions in San Francisco and conjunction with the California of Arroyo Grande and Assistant District San Diego. The programs were Young Lawyers Association. See Counsel for the Cambria Community Services District. designed to provide students and the announcement below!

AnnouncingMentoring the Public ProgramLaw Section and the

California Young Lawyers Association

The Public Law Section and the California Young Lawyers Association (CYLA) are proud to announce the kick-off of a mentoring program that is aimed at matching new public lawyers with experienced public lawyers. This unique program strives to develop new public lawyers’ skills and knowledge, while promoting collegial relationships among attorneys.

Looking to give back to the legal profession? Consider being a mentor! Mentors must have been in practice for at least 10 years, while mentees will be members of CYLA (attorneys who are under the age of 36 or have been practice five years or less). The formal mentoring relationship will last for six months, during which mentors and mentees are expected to meet in person or telephonically at least three times during the mentoring period, with each meeting lasting no longer than an hour and a half.

Mentors and mentees will be matched by members of the Public Law Section according to practice area interest and location, where possible. Mentors who join the program will be matched as new lawyers become available.

The Mentoring Program is a tremendous opportunity for mentors to meet young professionals in the public law field and to assist in their professional growth. For more information about the program, or to complete an application, see the Public Law Section website at http://publiclaw.calbar.ca.gov/. For additional information, contact David Hirsch at [email protected] or (805) 546-8785 or Kristina Robledo at [email protected] or (415) 538-2467.

10 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 Public Lawyer of the Year Nominations Sought

STATE BAR SEEKS NOMINATIONS FOR 2014 PUBLIC LAWYER OF THE YEAR

The California State Bar’s Public Law Section Executive Committee is accepting nominations for the 2014 Ronald M. George Public Lawyer of the Year Award. Applications are due March 17, 2014. The annual award recognizes an exceptional lawyer who has dedicated a significant portion of his or her career to public service. Award recipients are lawyers who represent the highest level of Chief Justice Tani Cantil-Sakauye congratulates Buck Delventhal of the San Francisco professional and ethical standards City Attorney's Office, the 2013 Public Lawyer of the Year. and who are inspirational Legal Oversight Committee of the advocates for the public interest. and has served the City and County Counsels’ Association. The Public Law Section recognizes County of San Francisco for more than 43 years. Delventhal has the award recipient at a reception Other recent Public Lawyer of led the Government Team at the held at the State Bar’s annual City Attorney’s Office since the the Year Award honorees include: conference in the fall. formation of this Division in the Phyllis Cheng (2012), Richard Winnie (2011), Michael Colantuono The award is named after retired late 1970s. During the course of (2010), Patricia Sturdevant (2009), California Supreme Court Chief his long and distinguished career, Jeff Thom (2008), Ann Miller Justice Ronald M. George, who Delventhal argued landmark cases Ravel (2007), Clara Slifkin (2006), traditionally spoke at the award in the California Supreme Court, Manuela Albuquerque (2005), ceremony and introduced the California Courts of Appeal, and Roderick Walston (2004), Ariel year’s winner. Chief Justice Tani the Ninth Circuit, and has been Pierre Calonne (2003), Herschel Cantil-Sakauye has continued the an attorney of record in over 100 Elkins (2002), and Jayne W. tradition and presented the award appellate cases. In addition to Williams (2001). in 2011, 2012, and 2013. his work on the City Attorney’s Government Team, Buck has been For more information on eligibility The 2013 award was given to San active with the League of Cities for the Ronald M. George Public Francisco Deputy City Attorney and County Counsel's Association Lawyer of the Year Award or to Burk E. “Buck” Delventhal. serving as a member of the nominate a colleague or friend, Delventhal joined the San League of California Cities Legal visit www.calbar.ca.gov/publiclaw. Francisco City Attorney’s Office Advocacy Committee for over three directly out of law school in 1970 decades, as well as being on the

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The Public Law Section also seeks Liebert Cassidy Whitmore; Meyers, The California State Bar’s Public sponsors for the 2014 awards Nave, Riback, Silver & Wilson; Law Section ensures that the ceremony, which will be held at the Renne Sloan Holtzman Sakai laws relating to the function and 2014 State Bar Annual Meeting in LLP ; and Walkup Melodia Kelly operation of public agencies are San Diego in September. Sponsors & Schoenberger LLP. Silver clear, effective and serve the public will be recognized in the Public Sponsors: Best Best & Krieger interest; advances public service Law Journal, all press releases LLP; Carmel & Naccasha LLP; through public law practice; and announcing the winner of the 2014 County Counsels’ Association of enhances the effectiveness of public award, and in signage at the awards California; Hanson Bridgett LLP; law practitioners. ceremony. For more information Jarvis Fay Doporto and Gibson about sponsorship opportunities, The section focuses on LLP; League of California Cities; administrative law, municipal law, contact State Bar Section Littler Mendelson; Remy Moose Administrator Kristina Robledo at open meeting laws, political law, Manley; Richards Watson Gershon; education law, state and federal (415) 538-2467 or kristina.robledo@ Kramer Telecom Law Firm PC. calbar.ca.gov legislation, public employment, Bronze Sponsors: Bertrand, Fox government contracts, tort The Public Law Section executive & Elliott; California Political liability and regulations, land use/ committee thanks the 2013 Law, Inc; Law Offices of William environment issues, and public sponsors: Gold Sponsors: Arnold Seligmann; Meredith, Weinstein & lawyer ethics. The section provides & Porter LLP; Burke, Williams Numbers LLP; Moscone Emblidge educational programs, seminars and & Sorenson LLP; Colantuono & Sater & Otis LLP; Newdorf Legal; resource materials, and publishes Levin LLP; Holland & Knight; Rosales Law Partners LLP the quarterly Public Law Journal.

2012 Public Lawyer of the Year Phyllis Cheng, Director of the California Department of Fair Em- ployment and Housing, with Chief Justice Cantil-Sakauye and Court of Appeal Justice Laurie Zelon.

12 INVITATION FOR NOMINATIONS PUBLIC LAW SECTION OF THE STATE BAR OF CALIFORNIA 2014 RONALD M. GEORGE PUBLIC LAWY LAWYER OF THE YEAR AWARD The Executive Committee of the Public Law Section of the State Bar of California is pleased to announce that it is accepting nominations from members of the Public Law Section, the State Bar and the public at large for the 2014 Ronald M. George Public Lawyer of the Year Award. The Public Law Section established this award to recognize a public law practitioner who has provided outstanding service to the public and possesses an exemplary reputation in the legal community and the highest of ethical standards. Recognizing a public law practitioner who has quietly excelled in his or her public service is a consideration of the Executive Committee in selecting the award recipient. In addition, the Executive Committee supports the goal of diversity in the membership and leadership of the State Bar. As such, promoting and achieving diversity is considered in selecting an outstanding member of the State Bar as the Ronald M. George Public Lawyer of the Year. ELIGIBILITY To be eligible, a nominee must meet the following criteria: · Be a member of the State Bar of California with an exemplary record; and · Have at least five years of recent, continuous practice in public law in California SELECTION CRITERIA The following factors may be considered by the Executive Committee in its selection of the recipient of the Public Lawyer of the Year Award: · Demonstrated commitment of the nominee to the practice of public law · Use of innovative or creative problem-solving by the nominee in the practice of public law · Exceptional accomplishments by the nominee in the practice of public law · Provisions of legal services by the nominee to the public above and beyond that which is considered ordinary. NOMINATION PROCESS To nominate an individual for this award, please submit the following: 1. Nomination Form 2. Nominator’s Statement of Nomination (600 words maximum) 3. Nominee’s Resume or Biography (indicating the nominee’s principal areas of practice, the number of years of practice, professional achievements, and other features of his or her career, such as community involvement and bar association activities.) 4. Any Letter(s) of Support (Optional -- 5 letters maximum)

Nominations and supporting materials must be received no later than March 17, 2014, by mail, e-mail or fax at:

Ronald M. George Public Lawyer of the Year Award Public Law Section, Attn: Raven Ogden 180 Howard Street, 4th Floor San Francisco, CA 94105-1639 E-Mail: [email protected] Fax: (415) 538-2467 NOMINATION FORM

PUBLIC LAW SECTION OF THE STATE BAR OF CALIFORNIA

2012 RONALD M. GEORGE PUBLIC LAWYER OF THE YEAR AWARD NOMINEE INFORMATION

Nominee’s Name: ______State Bar Number: ______Agency or Organization: ______Job Title: ______Address: ______Business Phone: ______Home/Cell Phone: ______E-Mail: ______

NOMINATOR INFORMATION

Nominator’s Name: ______Agency or Organization: ______Address: ______Business Phone: ______Home/Cell Phone: ______E-Mail: ______

STATEMENT OF NOMINATION / RESUME Please attach a narrative description (600 words or less) of the significant aspects of the Nominee’s career, community service or other activities that demonstrate the Nominee’s contribution to public law. Please attach a copy of the Nominee’s resume or biography.

LETTERS OF SUPPORT Broad support for your Nominee is desirable. You may encourage other persons or organizations to submit letters of support on behalf of your Nominee. You may submit a maximum of five letters of support.

For Office Use: Date Received: ______Nomination Form State Bar Record Verified Statement of Nomination Letter(s) of Support Received Nominee’s Resume or Biography The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

Municipal Condemnation of Mortgage Loans By John Vlahoplus*

INTRODUCTION ratifying the federal constitution.2 appropriated to a public use and California delegates this sovereign compensation made therefor. Cities across California and the 3 power to cities with few limitations. Such an exertion of power nation are considering using their The power extends to all types of neither challenges its validity nor powers of eminent domain to property, real and personal, tangible impairs its obligation. Both are purchase both performing and 4 recognized, for it is appropriated and intangible. In particular, defaulted underwater mortgage as an existing, enforceable “[a] chose in action, a charter, or any loans (those whose principal balance contract. It is a taking, not an kind of contract are, along with land exceeds the value of the encumbered impairment of its obligation. and movables, within the sweep If compensation be made, no home). They seek to reduce 5 of this sovereign authority.” This constitutional right is violated. All principal on the loans in order to includes mortgages. In fact, the of this has been so long settled as minimize defaults, short sales and U.S. Supreme Court has instructed to need only the citation of some foreclosures, and thereby to mitigate States to use eminent domain when of the many cases.9 the broad community costs of the helping individual mortgagors at the negative equity crisis (the “Municipal expense of mortgagees furthers the The rule is fundamental to State Plan”). Many cities are specifically public good.6 sovereignty and to our federal considering purchasing loans held in system of government. The Court CONTRACT CLAUSE private securitization trusts, which explained in 1848 the underlying do not benefit from any federal Some critics claim that the constitutional principles, which government guarantees. Municipal Plan impairs the include: (1) all private rights must mortgage loan contracts and yield to the paramount authority The Municipal Plan is certainly therefore violates the Contract of eminent domain to promote the controversial, and opponents have 7 Clause of the federal constitution. public good; (2) contracts are no raised constitutional challenges However, the U.S. Supreme Court “more sacred” than land or other and criticized it as poor policy, as has declared for over one hundred property in respect of a State’s power unlikely to achieve its stated goals, and fifty years that a condemnation of eminent domain; (3) companies and as providing significant benefits is a purchase, not an impairment, are no “more sacred” than human for private parties (including and that the Contract Clause does beings in respect of a State’s power private parties that fund the loan of eminent domain; and (4) every 1 not apply to eminent domain. The purchases or advise cities). This Court stated as recently as 1984 contract contains an inherent term, essay considers the applicable law that the Contract Clause argument which is presumed to be known by in the context of the principal legal has “no merit” because the “Clause all, that it is subject to the power of challenges to the Municipal Plan. has never been thought to protect eminent domain; therefore the power EMINENT DOMAIN against the exercise of the power of inherently cannot conflict with the 10 GENERALLY eminent domain.”8 As the Court Contract Clause. explained in 1912: The power of eminent domain is Eminent domain is so fundamental inherent in State sovereignty, and The obligation of a contract to sovereignty that a State cannot States did not yield the power by is not impaired when it is even contract away the power. 15 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

This is true even though the by minimizing adverse property a public purpose unless the Contract Clause does enforce a tax impacts (e.g., preventing long government’s declared purpose State’s contractual agreement to term revenue loss and inequality is an “impossibility”23 or is forgo other important government of tax burdens that foreclosure “palpably without reasonable powers, such as other police powers and short sales cause by ratcheting foundation,”24 which is not the and the power of taxation.11 down Proposition 13 assessment case here given the demonstrated TAKINGS CLAUSE caps for current buyers, but not for support of economists and neighbors who retain their older, other experts. California law is Some critics claim that the higher caps).15 consistent, expressly providing

Municipal Plan violates the Takings 16 that the government’s resolution of 12 Further, principals from academia, Clause of the federal constitution 17 18 necessity conclusively establishes government, and the private sector 25 because it will pay less than fair value public purpose. have advocated using eminent for the loans and because it lacks domain to reduce principal, keep Nor does it matter that a private a public purpose. The valuation people in their homes, and solve party may benefit from the city claim is false by definition. The law requires cities to pay fair value, and "The valuation claim is false by definition. disagreement over price does not render a taking unconstitutional.13 The law requires cities to pay fair value, and Longstanding U.S. Supreme disagreement over price does not render a Court precedent supports the Municipal Plan’s public purposes. taking unconstitutional." The constitutional standard for evaluating a city council’s action the mortgage crisis. Nobel Laureate council’s action; the only relevant is simple: the taking is valid as economist Robert Shiller has called issue is the government’s actual 26 long as it “is rationally related to a the Municipal Plan an effort that purpose. The mechanics of an 19 conceivable public purpose.”14 The “we must hope . . . succeeds.” U.S. eminent domain program may Municipal Plan meets this test. federal banking regulators support properly provide “direct and the focus on privately securitized significant” benefits to private Any city that adopts the Municipal loans,20 and the Federal Housing parties because public purposes Plan will determine its public Finance Agency has concluded that “may be as well or better served purposes and will articulate those loans are the “crux” of the through an agency of private them in a resolution of necessity. housing crisis and must be fixed if enterprise than through a City councils are considering we want to fix the mortgage crisis.21 department of government. . . .”27 the Municipal Plan to further a Finally, including underwater In fact, California expressly number of public purposes within performing loans in a program also authorizes private businesses the traditional police power meets this test, because those loans to exercise eminent domain of health, safety, and welfare: qualify for the most useful state and for their own profit where the reducing crime; reducing the costs federal mortgage assistance programs, business furthers the public of maintaining vacant properties; and the federal government has good.28 Finally, implementing a improving public health; increasing recognized that loan modifications joint public/private effort like the housing security, availability, and are most likely to succeed if they are Municipal Plan follows express financing opportunities (including made before a default.22 California legislative direction. restoring normal lending by The legislature has declared a reducing the number of underwater Once a city council has identified decent home for each family to be loans and the shadow inventory of a public purpose, the council’s a goal of the highest priority, and it likely future foreclosure and short decision is then controlling. A specifically directs “the private and sales); and protecting their ability court cannot “substitute its public sectors of the economy to judgment” of what constitutes 29 to provide vital community services cooperate” in achieving that goal. 16 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

LOCATION OF LOANS cannot be separated from the local to hold broadly diversified security property.31 debt obligations within trusts, Some critics argue that the consequently impeding the Municipal Plan attempts to In addition, longstanding law interstate flow of credit and assert extraterritorial jurisdiction, involving condemnation for creating various local and claiming that the loans are eminent domain and other interstate market harms, and/ located at the place of the creditor. governmental purposes locates or (2) condemnation would However, the law makes clear the loans and security interests interfere with tightly integrated that the loans are located in the in the municipality, including: debt holdings within trusts, thus municipality, together with the condemnation of corporate causing interstate harms. Despite borrower and the security property. stock at the place of the issuer; these criticisms, the U.S. Supreme condemnation of an intangible An intangible asset such as a debt Court has expressly rejected the debt claim and related intangible claim or a security interest in first claim, and the second claim mortgage security interest at the property has no physical form. Its involves circumstances unlikely to place of the debtor, even though the location depends upon the totality arise under the Municipal Plan. tangible note, tangible mortgage of the circumstances surrounding document and creditor were located The Court rejected the the action to be taken with respect elsewhere; and condemnation of diversification argument in the to it.30 All of the important a bearer bond at the place of the recent Davis case, which involved factors involving the loans and 32 debtor. Condemnation practice state tax exemption for interest security interests for eminent and legislative intent also locate the earned on local (but not out of state) domain purposes are within the 35 loans in the municipality, including municipal debt. The plaintiffs municipality, because that is where: Connecticut having used its claimed that the law reduced the (a) the borrower is domiciled, power of eminent domain to diversification of national municipal bond funds, causing harm to the "The Court concluded that the judiciary is interstate credit market including reducing access to the local credit institutionally incompetent to make economic market and distorting interstate credit flows. cost-benefit decisions about diversification of The Court rejected the claims, debt holdings and interstate credit flows." reasoning that to even consider them would require it to (b) the security is located (i.e. the condemn covenants in its own determine whether capital flows home), (c) the creditor’s remedies 33 state debt, and New York having more readily through diversified are based, (d) the public purpose expressly authorized the Long or undiversified debt funds, and for which the loans would Island Power Authority to condemn whether a decision one way or the be condemned is effectuated 34 debt issued by local utilities, other would increase capital flows (protecting the local community), in both cases without regard to or cause “capital to some degree and (e) the information necessary locations of creditors. simply [to] dry up” (as some critics to value the loans is located (the claim the use of eminent domain borrower and the security property). DORMANT COMMERCE CLAUSE would). The Court concluded The physical location of the home that the judiciary is institutionally in the municipality is enough to Some critics argue that the incompetent to make economic give jurisdiction, because under Municipal Plan would violate the cost-benefit decisions about federal and California law the two Dormant Commerce Clause of the diversification of debt holdings components of a mortgage loan federal constitution because: and interstate credit flows. It are inextricably linked—the loan (1) municipal power to condemn therefore rejected the Dormant loans would reduce the ability Commerce Clause challenge 17 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 and ruled that the normal Pike debtor protection laws.38 Recent Plan expect to lose in court if a evaluation of local benefits and securitizations go further and condemnation ever occurs.43 interstate burdens does not apply directly disclose the risk of loan Therefore they have proposed in this context.36 condemnation.39 Other pooled multiple “non-legal” steps to try to investment vehicles holding debt, stop cities from even trying44—steps The Davis Court also rejected the including domestic bond funds, that California Lt. Gov. Newsom Dormant Commerce Clause regularly warn investors of the has noted violate antitrust and challenge on an independent risks of condemnation and other anti-redlining laws.45 Any cities ground, that in applying the Clause local laws.40 The interstate housing considering the Municipal Plan the judiciary must particularly defer finance market already works must be prepared to face these to legislatures in their exercise of within this legal framework of aggressive tactics from attorneys traditional health, safety and predominantly local laws, which involved in the national opposition welfare powers. This ground do not violate the Dormant to the Municipal Plan. applies with full force to the Commerce Clause. Municipal Plan, which protects broad health, safety and welfare In the second claim, critics argue that *John Vlahoplus community interests and utilizes condemning securitized loans would is a founder the traditional and inalienable violate the Dormant Commerce and Chief police power of eminent domain. Clause under the Oakland Raiders Strategy Officer Even if the Municipal Plan involved authority.41 That decision held that of Mortgage regulation (rather than a purchase condemning the Raiders would Resolution Partners LLC, of loans), and even if the Court violate the Clause by interfering a company permitted the Pike balancing test with an interstate league consisting advising cities nationwide on utilizing to apply, the Dormant Commerce of teams that are tightly integrated local powers to acquire mortgage loans. Clause challenge would fail on this and interdependent, finding that His previous experience includes tax independent ground because of the each team depends on the others practice at Sullivan & Cromwell and new product development and marketing deferential standard and for competition and revenue; that for the Zurich Financial Services Group, longstanding case law upholding the teams share television and gate BNP Paribas, and Credit Suisse. local housing and land use regulation, proceeds; and that each franchise such as regulations that exclude owner has an important interest in capital from local jurisdictions.37 the identity, personality, financial Endnotes stability, commitment, and good 1 The author's firm, Mortgage The Dormant Commerce Clause faith of each other owner. But argument also ignores the fact Resolution Partners, has worked mortgage securitization trusts are under contract with a number that housing and housing finance deliberately arranged to lack these are predominantly and broadly of California cities to develop factors. They are designed to hold plans to acquire mortgages via subject to state and local laws diversified, unrelated loans with eminent domain. that differ across jurisdictions, no interdependence of cash flows, such as: recourse or nonrecourse 2 See, e.g., West River Bridge Company no borrower knowing the identity v. Dix, 47 U.S. 507, 532 (1848), liability; single or multiple action of any other borrower, no investor and City of Oakland v. Oakland foreclosure procedures; notice, race, management rights, and generally no Raiders, 32 Cal. 3d 60 (1982). or race notice security priority; investor knowledge of or dependence 3 See Cal. Govt Code § 37350.5 eminent domain generally (such 42 on any other investor. (general delegation), Cal. Const., as condemnation of homes); CONCLUSION art. 1, § 19(b) (limitation debtor protection laws; and forbidding transfer of condemned more. The trusts that hold the This report addresses the critics’ owner-occupied private residence loans at issue disclosed to their legal arguments. Moreover, Amherst to another private person). investors the material risks of Securities has revealed in a private 4 See, e.g., City of Oakland v. Oakland local condemnation and local report that critics of the Municipal Raiders, 32 Cal. 3d 60 (Cal. 1982).

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5 See City of Cincinnati v. Louisville 16 See Lauren Willis, Stabilize 25 Except in the case of gross abuse of & Nashville Railroad Co., 223 U.S. Home Mortgage Borrowers, and discretion (which would not apply 390, 400 (1912). the Financial System Will Follow, to the carefully considered actions 6 See Louisville Joint Stock Land Bank (Sep. 24, 2008) (homes), available of cities here), the resolution of v. Radford, 295 U.S. 555, 602 at http://papers.ssrn.com/sol3/ necessity is conclusive. See Cal. (1935). papers.cfm?abstract_id=1273268; Code Civ. Proc. §§ 1245.250(a) and Howell Jackson, Build a (“Except as otherwise provided by 7 U.S. Const. art. I, § 10. better bailout, CHRistian sCienCe statute, a resolution of necessity 8 See Hawaii Housing Authority v. MonitoR (Sep. 25, 2008) adopted by the governing body Midkiff, 467 U.S. 229, 243 n. 6 (loans), available at http://www. of the public entity pursuant to (1984) (contracts between csmonitor.com/Commentary/ this article conclusively establishes private parties). Opinion/2008/0925/p09s02- the matters referred to in Section 9 See Louisville & Nashville Railroad coop.html. 1240.030.”), 1245.255(b) (gross Co., 223 U.S. at 400 (citing case 17 See Rep. Brad Miller, abuse of discretion exception), law dating to colonial franchise UnHAMPered, tHe new RePubliC and 1240.030(a) (prerequisite that rights granted in 1650). (Feb. 24, 2010), available at “The public interest . . . require[s] 10 See Dix, 47 U.S. at 532-34. http://www.tnr.com/article/ the project.”). 11 See, e.g., Stephen Siegel, unhampered?page=0,1. 26 See Kelo v. City of New London, 545 Understanding the Nineteenth 18 See Buck Wargo, Builder: Eminent U.S. 469, 482, quoting Midkiff, Century Contract Clause: the role of domain could calm foreclosure 467 U.S. at 244. the Property-Privilege Distinction and chaos, las vegas sun (Feb. 13, 27 See Kelo, 545 U.S. at 485-86, “Takings” Clause Jurisprudence, 60 so. 2009), available at http://www. quoting Berman v. Parker, 348 U.S. Cal. l. Rev. 1, 46-54 (1986). lasvegassun.com/news/2009/ 26, 33-34 (1954). feb/13/builder-eminent-domain- 12 U.S. Const. amend. V. 28 See Cal. Pub. util. Code could-calm-foreclosure-chao/. 13 See, e.g., Williamson Cnty. Reg’l §§ 611-625 (companies providing Planning Comm’n v. Hamilton Bank 19 See Robert Shiller, Reviving railroad, electric, gas, heat, of Johnson City, 473 U.S. 172, 195 Real Estate Requires Collective pipeline, telephone, telegraph, (1985) (“[I]f a State provides an Action, new yoRk tiMes (June water, wharf, warehouse, motor or adequate procedure for seeking 23, 2012): http://www.nytimes. water carrier, or sewage services). just compensation, the property com/2012/06/24/business/ 29 See Cal. HealtH and safety owner cannot claim a violation economy/real-estates-collective- Code § 50002. action-problem.html. of the Just Compensation 30 See, e.g., Waite v. Waite, 6 Cal.3d Clause until it has used the 20 See Shahien Nasiripour and Tom 461, 467 (1972) (California law), procedure and been denied just Braithwaite, US housing plan aims disapproved on other grounds by In compensation.”). to woo bondholders, FINANCIAL re Marriage of Brown, 15 Cal.3d 14 Midkiff, 467 U.S. 229, 241 (1984). TIMES (Sept. 27, 2012). 838, 851 n.14 (1976); Office Depot 15 For specific legislative public 21 See James Lockhart, Speech to Inc. v. Zuccarini, 596 F.3d 696, purposes that the Municipal Plan the American Securitization Forum, 702 (9th Cir. 2010) (federal law); February 9, 2009 at page 5, City of Oakland v. Oakland Raiders, can serve, see, e.g., Cal. HealtH available at http://www.fhfa.gov/ 31 Cal.3d 656 (1982) (totality of and safety Code §§ 50001- 50004 and 51600; for an webfiles/823/ASFSpeech2909.pdf. circumstances). extended analysis of policies 22 See, e.g., Rev. Proc. 2009-23 31 See Cal. Civ. Code § 2936 (“The underlying the Municipal Plan, (§ 2.02), available at http://www. assignment of a debt secured see Robert Hockett and John irs.gov/pub/irs-drop/rp-09-23.pdf. by mortgage carries with it the Vlahoplus, A Federalist Blessing in 23 See Old Dominion Land Co. v. security.”); Carpenter v. Longan, 83 Disguise: From National Inaction United States, 269 U.S. 55, 66 U.S. 271, 274 (1872) (“The note to Local Action on Underwater (1925), cited with approval in and mortgage are inseparable.”); Mortgages, 7 HaRv. l. & Pol’y Midkiff, 467 U.S at 240. Hyde v. Mangan, 88 Cal. 319, 327 Rev. 253 (2013). (1891) (“The debt and security are 24 Midkiff, 467 U.S. at 241, quoting inseparable; the mortgage alone is United States v. Gettysburg Electric not a subject of transfer.”) R. Co., 160 U.S. 668, 680 (1896).

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32 See Offield v. New York, New 34 See New York State Public 42 See, e.g., Adam Ashcraft, Paul Haven & Hartford R.R. Co., 203 Authorities Law, art. 5, tit. 1-A, Goldsmith-Pinkham and James U.S. 372 (1906) (eminent domain § 1020-F (e), available at ht t p : // Vickery, MBS Ratings and the condemnation of corporate stock), law.onecle.com/new-york/ Mortgage Credit Boom, Federal Brown v. Kennedy, 82 U.S. 591 public-authorities/PBA01020- Reserve Bank of New York Staff (1872) (condemnation of secured F_1020-F.html. Report No. 449 (May 2010), debt and the related mortgage 35 See Department of Revenue of available at http://www.newyorkfed. interest held by Confederate Kentucky v. Davis, 553 U.S. org/research/staff_reports/sr449. supporter); Cities Service Co. v. 328 (2008). pdf; and Larry Cordell, Yilin McGrath, 342 U.S. 330 (1952) Huang and Meredith Williams, 36 See Davis, 553 U.S. slip op. at 24-25 (pursuant to the Trading With Collateral Damage: Sizing and (quoting respondents’ brief). the Enemy Act, the United States Assessing the Subprime CDO could seize debts owed by an 37 See, e.g., Richard Schragger, Mobile Crisis, Federal Reserve Bank of obligor within the United States Capital, Local Economic Regulation, Philadelphia Working Paper No. even though they were evidenced and the Democratic City, 123 HaRv. 11-30/R (May 2012), available at by bearer bonds outside of the l. Rev. 482, 519 (2009). http://www.philadelphiafed.org/ United States); Silesian Am. Corp. 38 See, e.g., Prospectus Supplement research-and-data/publications/ v. Clark, 332 U.S. 469 (1947) (the dated Oct. 24, 2004 for Merrill working-papers/2011/wp11-30.pdf. United States could seize shares of Lynch Mortgage Investors Trust, 43 Amherst Securities Group LP, stock held by an enemy alien in a Series 2004-WMC5, page S-20, Creative Uses of Eminent Domain— domestic corporation even though and Prospectus included therein, Implications For PLS Trusts, at 13 the stock certificates and owner page 64, available at http://www. (June 28, 2012). were outside the jurisdiction); Miller sec.gov/Archives/edgar/809940/ 44 Amherst Securities Group LP, v. United States, 78 U.S. 268, 294-98 000095012304012610/ Creative Uses of Eminent Domain— (1870) (upholding the confiscation of y67949e424b5.txt. Implications For PLS Trusts, at 13 a Confederate supporter’s shares of 39 See, e.g., Prospectus Supplement, (June 28, 2012). stock by seizure at the corporation’s dated September 20, 2012, for the domicile, effected by notice to the 45 See Press Release, Office of Sequoia Mortgage Trust 2012-4, corporate officer, even though the Lieutenant Governor of Cal., Lt. page S-117, available at ht t p : // shareholder was a non-resident). Gov. Gavin Newsom Sends Letter www.sec.gov/Archives/edgar/ to US Attorney General Holder 33 See Jonathan Rabinovitz, Legislature data/1176320/0001144204120 and Antitrust Division (Sept. 10, Acts to Stop Tax Loss on Bonds, 52666/v744346_424b5.htm. 2012), available at http://ltg.ca.gov/ new yoRk tiMes (March 9, 1995), 40 See, e.g., disclosure for PIMCO’s news.2012.09.10_USDOJ_Letter. available at http://www.nytimes. Convertible Fund, Emerging html; Press Release, Office of com/1995/03/09/nyregion/ Local Bond Fund, and other Lieutenant Governor of Cal., legislature-acts-to-stop-tax-loss-on- funds, in PIMCO Funds Lt. Gov. Gavin Newsom: Local bonds.html. The Connecticut Prospectus (Oct. 1, 2010), Governments Should Have legislation followed the express available at http://www.sec.gov/ Freedom to Explore Options to instructions of the U.S. Supreme Archives/edgar/data/810893/ Address Mortgage Crisis (July Court to use eminent domain 000119312510221729/d497.htm. 27, 2012), available at http://www. when the public interest requires ltg.ca.gov/news.2012.07.27_SB_ altering bond covenants. See 41 City of Oakland v. Oakland Raiders, Mortgage.html. United States Trust Co. of New York 174 Cal. App. 3d 414 (Cal. App. v. New Jersey, 431 U.S. 1, 29 n. 1st Dist. 1985) 27 (1977). Similarly, cities that adopt the Municipal Plan will be following the Court’s express instruction in Radford.

20 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

ENTER THE PUBLIC LAW SECTION STUDENT WRITING COMPETITION— DEADLINE MAY 12

The Public Law Section seeks will be recognized at an awards Articles must be received by entries for its annual Student reception, and publication in the 5:00 p.m. (PST) on May 12, Writing Competition, which has a Public Law Journal. 2014. Articles must be submitted, deadline of May 12, 2014. If you by email, in Microsoft Word Articles must be 2,000-3,000 teach at a law school, mentor a law documents in Times New Roman words (not including endnotes) student, or have student interns 12-point font, single-spaced. and must be on a topic related to in your office, be sure to pass Citations must be included along information about this great public law—a wide field that covers in endnotes, not footnotes. opportunity. Students need not areas such as administrative law, Articles may include headings be Public Law Section members to constitutional law, municipal law, and subheadings, but excessive enter the competition. open meetings/open records law, headings are discouraged. Email political/election law, education The competition is open to articles to scott.smith@bbklaw. law, state and federal legislation, students at all California- com or Rachel_Sommovilla@ public employment and labor law, accredited law schools, and the ci.richmond.ca.us by 5:00 p.m. on government contracts, government winner receives a $2,000 cash May 12, 2014. prize, transportation and hotel tort liability and regulations, land expenses for two nights at the use/environmental issues, public For more information about the State Bar Annual Meeting in law ethics, public finance, and Student Writing Competition, visit September where the winner water law. http://publiclaw.calbar.ca.gov/.

2013 Student Writing Competition winner Jennifer Lai with 2013 Student Writing Competition's Co- Chairs Rachel Sommovilla (left) and Caroline Fowler, and Chief Justice Cantil-Sakauye

21 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

The Public Law Section 2014 Student Writing Competition

Win a $2,000 cash prize, get published in the Public Law Journal, and win a trip to the 2014 State Bar Annual Meeting!

Deadline May 12, 2014

The California State Bar Public Law Section seeks entries for its annual Student Writing Competition. The competition is open to students at all California-accredited law schools, and the winner receives a $2,000 cash prize; transportation and hotel expenses for two nights at the State Bar Annual Meeting in San Diego in September where the winner will be recognized at an awards reception; and publication in the Public Law Journal.

WHAT ARTICLES ARE ELIGIBLE? AWARD Articles must be 2,000-3,000 words (not including endnotes) and The winner will receive a $2,000 cash prize from the Public Law must be on a topic related to public law -- a field that covers areas Section and will have his or her article published in the Public Law such as administrative law, constitutional law, municipal law, open Journal. The winner also will be recognized at the Ronald M. meetings/open records law, political/election law, education law, George Public Lawyer of the Year Award reception sponsored by the state and federal legislation, public employment and labor law, Public Law Section at the State Bar’s Annual Meeting in San Diego government contracts, government tort liability and regulations, land in September 2014. The Public Law Section will pay the winner’s use/environmental issues, public law ethics, public finance, and reasonable transportation and hotel accommodation expenses for two water law. Articles should be written in a style suitable for nights to attend the award reception. publication in the Public Law Journal and should include citations in either Bluebook or California Style Manual format, with citations JUDGING included in endnotes, not footnotes. Articles should be the original Articles will be judged by the Executive Committee of the Public work of the submitting students without substantial editorial input Law Section based on the following criteria: from others. Examples of past selected articles include: “A Tale of Two Cities: Day Labor Solicitation after Redondo Beach”; “Funding ¾ Relevancy to one or more areas of public law (see Public Transmit in California After Proposition 26” and “California description of eligible articles and examples of past Environmental Quality Act (CEQA) Reform: Standing As A Tool To winners) Limit Cases Unrelated To CEQA’s Purposes”. ¾ Quality of writing ¾ Complexity of topic WHO CAN ENTER? ¾ Timeliness of topic to current developments in public law As of May 12, 2014, students must be enrolled in good standing ¾ Originality at a California law school’s Juris Doctor program that is accredited ¾ Compliance with contest rules by the Committee of Bar Examiners of the State Bar of California. Students need not be Public Law Section members to enter the ABOUT THE PUBLIC LAW SECTION competition. The Public Law Section seeks to ensure that laws affecting the public sector are clear, effective and serve the public interest; to DEADLINE/METHOD OF SUBMISSION advance public service through public law practice; and to enhance Articles must be received by 5:00 p.m. (PST) on May 12, 2014. the effectiveness of public law practitioners. With more than 1,300 Articles must be submitted, by email, in Microsoft Word documents members, including law students, the Public Law Section focuses on in Times New Roman 12-point font, single-spaced. Citations must addressing issues related to all areas of public law – including be included in endnotes, not footnotes. Articles may include administrative law, constitutional law, municipal and county law, headings and subheadings, but excessive headings are discouraged. open meetings/open records laws, political/election law, education Email articles to [email protected] or law, water law, state and federal legislation, public employment, [email protected] by 5:00 p.m. on May 12, government contracts, government tort liability, agency regulations, 2014. A member of the Public Law Section’s Executive Committee land use/environmental issues, public lawyer ethics, and public will notify the winner by June 16, 2014. finance.

By submitting an article as part of this contest, the author grants The Public Law Section provides educational programs, seminars the Public Law Section the right to edit (as necessary) and publish and resource materials; presents the annual “Ronald M. George any article in the Public Law Journal. Public Lawyer of the Year Award” to public law practitioners who have made significant contributions to the profession; sponsors the QUESTIONS? annual Student Writing Competition; and publishes the quarterly Please direct any questions about the contest to Rachel Public Law Journal. Sommovilla (510) 620-6506 or Scott Smith at (949) 263-6561.

22 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

Police Liability for Tactical Conduct Preceding the Use of Force—The Implications of Hayes v. County of San Diego By Michael R. Linden and Justin B. Atkinson*

The Spring 2012 edition of the I. HERNANDEZ V. CITY OF estoppel, because the federal court POMONA Public Law Journal featured an jury found the use of force to have article (written by the authors In 2009, the California Supreme been reasonable, the wrongful death herein) entitled “Can a Lawful Court decided the case Hernandez could not be based on the defendants’ 8 Arrest Be Negligent?” This article v. City of Pomona (“Hernandez”).3 In alleged tactical negligence. Therefore, discussed the issue of whether law Hernandez, George Hernandez was the Court declined to address the enforcement officers owed a legal shot and killed by police officers defendants’ argument that “they duty to arrestees to use reasonable after fleeing arrest. The decedent’s owed no duty of care regarding their 9 care in the tactics employed to relatives originally brought suit in preshooting conduct.” effectuate an arrest. While citing federal court, setting forth both In Hernandez, Justice Carlos Moreno authority supporting the existence Federal civil rights claims pursuant issued a concurring opinion. Justice of a duty to use reasonable force, to 42 U.S.C. section 1983 (“Section Moreno was of the belief that the 1983”), and a pendent wrongful death the article also cited the cases plaintiffs did not meet “their burden claim. A jury found in favor of the Adams v. City of Fremont (“Adams”) of proving that it is reasonably defendants on claims for excessive and Munoz v. City of Union City possible that they [could] amend (“Munoz”) for the proposition that force brought under the Fourth and 4 their complaint to allege a cause of law enforcement officers did not Fourteenth Amendments. The action for preshooting negligence,” owe a duty to potential arrestees federal court declined to exercise and as such the Court “need say with respect to the tactics utilized supplemental jurisdiction over the 10 1 5 no more to resolve this case.” prior to the use of force. state law wrongful death claim. The The majority responded by stating plaintiffs then filed a wrongful death Since the Spring 2012 article was that “we find that plaintiffs have action in state court against the same adequately shown how they would published, however, the foundation defendants.6 The trial court entered of the broad rule of no duty set amend their complaint to allege a judgment in favor of the defendants, preshooting negligence claim, and forth in Adams and Munoz has precluding what the court viewed as that we must determine whether any slowly eroded On August 19, 2013, a re-litigation of the federal court’s of the preshooting acts plaintiffs the California Supreme Court factual findings regarding excessive have identified can support issued a decision in the case Hayes v. force. The court of appeal reversed, negligence liability.”11 Justice County of San Diego that substantially however, finding that the plaintiffs Moreno’s statement would prove to limits the holdings in Adams and “could proceed on the theory that the be very significant. Munoz in cases where police officers officers failed to use reasonable care cause the death of a subject in the II. HAYES V. COUNTY OF in creating, through their preshooting SAN DIEGO (“HAYES I”) field.2 How this change came about conduct, a situation in which it was is discussed below. reasonable for them to use deadly In the case Hayes v. County of San force.”7 Upon review, the Supreme Diego, sheriff’s deputies arrived at a Court held that based on collateral residence in response to a call from 23 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

a neighbor, who said she had heard a PERT team before confronting found that “the court’s analysis of screaming.12 Upon their arrival, the him.”16 Relying on Adams and whether the officers’ preshooting deputies were informed by Shane Munoz, however, the district court conduct independently constituted Hayes’s girlfriend that Hayes had held that the deputies owed no breach of a duty of care strongly tried to kill himself earlier in the duty of care for their conduct prior indicates that California’s highest evening.13 When the deputies to the use of force.17 court would not adopt a rule that entered the residence, Hayes came officers owe no such duty.”20 after them with a large knife.14 The On appeal, a Ninth Circuit panel deputies then shot and killed Hayes.15 unanimously affirmed the district In dissent, Judge Johnnie court’s ruling with respect to the Rawlinson disagreed with the Hayes’s daughter filed suit in Fourteenth Amendment claim, and panel majority’s finding that the federal court, asserting both remanded the case back to the trial Hernandez decision supported Section 1983 claims (based on court with respect to the plaintiff’s a conclusion that the plaintiff her father’s Fourth Amendment standing to vicariously assert “had a viable negligence claim.”21 rights and her own Fourteenth her father’s Fourth Amendment Judge Rawlinson noted that the 18 Amendment substantive rights. With respect to the Hernandez court was only asked to due process right to familial negligent wrongful death claim, the consider the following question: association) and a pendent panel majority noted that after the wrongful death claim. The district court granted summary When a federal court enters judgment in favor of the district court granted summary judgment, the Hernandez court had defendants in a civil rights claim judgment on both the federal and “indicated that law enforcement brought under 42 United States state law claims. With respect officers might be subject to Code section 1983 …, in which to the wrongful death claim, the negligence liability for certain the plaintiffs seek damages 19 plaintiff argued that the deputies preshooting conduct.” While for police use of deadly and were negligent “because they failed acknowledging that the Hernandez constitutionally excessive force in to gather all potentially available decision did not discuss the Adams pursuing a suspect, and the court information about Hayes or request and Munoz cases, the majority then dismisses a supplemental

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state law wrongful death claim at a business location that took the court perceived a “lack of clear arising out of the same incident, place after a high speed vehicle precedent foreclosing such claims.”33 what, if any, preclusive effect chase.27 Prieto’s relatives filed suit does the judgment have in a IV. HAYES V. COUNTY OF in federal court including, among SAN DIEGO (“HAYES II”) subsequent state court wrongful 22 others, claims under Section 1983. death action? The defendants made a motion On August 19, 2013, the California for summary judgment, and the Supreme Court issued its decision Judge Rawlinson reasoned “that if 34 the California Supreme Court was plaintiffs attempted to defeat in Hayes v. County of San Diego. inclined to overrule the holdings the motion by citing the Ninth The Court rephrased the question of Munoz and Adams, it would Circuit’s initial Hayes opinion. In as “[w]hether under California have done so,” and lamented that the district court’s order, it was negligence law, liability can arise the majority had disregarded “the noted that after the motion was from tactical conduct and decisions resulting continuing vitality of taken under submission, “the employed by law enforcement 35 Munoz and Adams.”23 Ninth Circuit withdrew its Hayes preceding the use of deadly force.” opinion, certified a question to In the Court’s view, the Ninth After a request for re-hearing, the the California Supreme Court Circuit phrased the issue so as to Ninth Circuit withdrew its decision regarding the viability of negligence implicitly divide the encounter and issued an order certifying claims against police officers, into two separate duties. “The a question for the California stayed the case, and maintained first duty would be to prepare, 24 28 Supreme Court. The question, jurisdiction over the appeal.” The approach, and perform a welfare as stated, was “[w]hether under district court found that “[t]he check on a suicidal person in a California negligence law, sheriff’s Ninth Circuit’s subsequent Hayes reasonable manner, a duty that may deputies owe a duty of care to a certification opinion casts some or may not exist. The second duty suicidal person when preparing, doubt as to whether the California would be to use deadly force in a approaching, and performing Supreme Court would agree with 25 29 reasonable manner, a duty we have a welfare check on him.” The Munoz and Adams.” As such, the long recognized in California.”36 Ninth Circuit found that “[t]here court stated that it would “assume is disagreement within this court without deciding” that the officers The Court found the possible as to whether this discussion owed the subject “a duty to use existence of two separate duties in Hernandez suggests that the due care with respect to their pre- to be problematic because “this 30 California Supreme Court would shooting tactics.” case involves a single primary right not follow the holdings in Adams (plaintiff’s right not to be deprived In the case Alvarado v. City of Santa and Munoz,” and as such “we of her father by an improper use Ana, Elmer Alexander Perez was believe the California Supreme of deadly force), which necessarily shot and killed after an unlawful Court should have the opportunity 31 corresponds to a single duty (the 26 entry into a residence. Perez’s to speak for itself on the issue.” relatives filed a complaint in duty not to use deadly force in an III. SUBSEQUENT FEDERAL federal court, seeking “to impose improper manner), and the breach DISTRICT COURT liability on the officers for allegedly of that duty gives rise to a single CASES 37 negligent tactics,” including an indivisible cause of action.” The After the certified question was officer’s “call for less-lethal force, Court reasoned that “[b]ecause submitted to the California but failure to wait for said means plaintiff did not allege a separate Supreme Court in Hayes I, at least to arrive before entering,” and an injury from the preshooting two federal district courts declined officer’s “failure to use a taser.”32 conduct of law enforcement to apply the broad rule from Adams Based on the pending certification personnel, the preshooting conduct and Munoz. In the case J.P. ex question in the Hayes case, the is only relevant here to the extent rel. Balderas v. City of Porterville, district court declined to grant it shows, as part of the totality of police officers shot and killed summary judgment with respect circumstances, that the shooting itself Eusebio Prieto during a stand-off to pre-shooting negligence because was negligent.”38 25 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

Next, the Court analyzed the facts to negligence liability.”44 “Such their conduct before the shooting, of Adams (a suicide case) and Munoz liability can arise, for example, if and reverse the district court’s (a use of deadly force case) and the tactical conduct and decisions conclusion to the contrary.”50 found the distinction between the show, as part of the totality of two cases “significant” because “this circumstances, that the use of Judge Rawlinson again dissented, court has never addressed whether deadly force was unreasonable.”45 arguing that in Hayes II, the peace officers owe a duty of care The Court, however, emphasized California Supreme Court “simply when, without any use of deadly that “a final determination that the reiterated our obligation to force, they merely come to the aid shooting was not negligent would resolve the excessive force claim of a suicidal person—the existence preclude plaintiff from pursuing a by reviewing the totality of the of such a duty is not at issue here.”39 separate theory of liability based on circumstances, rather than by Thus, the Court expressed “no view” the preshooting conduct alone.”46 dissecting the analysis into separate 40 “Moreover, because plaintiff did not considerations of preshooting on the Adams holding. 51 allege a separate preshooting injury, conduct and shooting conduct.” However, citing Munoz v. Olin and this case does not raise the question The Supreme Court emphasized Grudt v. City of Los Angeles (“Grudt”), of what independent duty, if any, that pre-shooting conduct is the Court found that it “has long law enforcement personnel owe with only relevant if it shows that the recognized that peace officers have regard to their preshooting conduct, shooting itself was negligent, and a duty to act reasonably when using and we have no reason here to a law enforcement officer need 41 deadly force.” As such, the Munoz decide that question.”47 not choose “the most reasonable case was disapproved.42 In doing so, action or the conduct that is least V. HAYES V. COUNTY OF 52 the Court pointed out that: SAN DIEGO (“HAYES III”) likely to cause harm.” Also, the Supreme Court rejected a bright [T]he Munoz court may have On December 2, 2013, the Ninth line rule, and recognized that been influenced by the rule Circuit issued its order with that applies to violations of the law enforcement officers have consideration of the Supreme discretion in how they choose to federal Constitution’s Fourth 48 53 Amendment. … The Fourth Court’s decision in Hayes II. The address situations in the field. Amendment’s “reasonableness” court summarized Hayes II, and Judge Rawlinson concluded that standard is not the same as the observed that the high court “the district court in its analysis standard of “reasonable care” concluded that “under Grudt, an touched all the bases laid out by under tort law, and negligent officer’s preshooting conduct is the California Supreme Court,” acts do not incur constitutional liability. … [S]tate negligence law, "The holding in Hayes II, however, has which considers the totality of the circumstances surrounding any widened the specter of tort liability based (at use of deadly force … is broader than federal Fourth Amendment least in part) on tactical decisions in the field." law, which tends to focus more narrowly on the moment when properly ‘included in the totality deadly force is used. … [As such and as such summary judgment 54 the] state and federal standards of circumstances surrounding [his] should have been affirmed. 43 use of deadly force, and therefore the are not the same. VI. THE FUTURE UNDER officer’s duty to act reasonably when THE HAYES II RULE The Court held that “[l]aw using deadly force extends to preshooting enforcement personnel’s tactical conduct.’”49 Thus, the Ninth Circuit The rule prior to Hayes II was based conduct and decisions preceding found that “[c]onsistent with our on the courts’ recognition that “the the use of deadly force are relevant obligation to follow the authority need to protect the overall safety considerations under California of California’s highest court, . . . we of the community by encouraging law in determining whether the conclude that the deputies’ duty law enforcement officers to exercise use of deadly force gives rise of reasonable care extended to their best judgment in deciding 26 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

how to deal with public safety If summary judgment is not Under the rule in Hayes II, if the emergencies vastly outweighs the obtained, it appears that defense officers had caused the decedent’s societal value of imposing tort litigators will need to grapple with death in Adams, the responding liability for the judgments they two “reasonableness” standards. officers’ legal duty would have make in emergency situations.”55 Evidence of tactics that might be been different, even though all of The holding in Hayes II, however, relevant to a negligence claim might the police tactics leading up to the has widened the specter of tort not be relevant to a federal Fourth death-causing event would have liability based (at least in part) Amendment claim. As observed by been the same. Fitzgerald, the new Hayes II standard on tactical decisions in the field. Ultimately, only time will tell what Sonoma Deputy County Counsel is in conflict with the federal jury instructions with respect to the use kind of effect Hayes II will have on Anne Keck believes that, because of force, which allow for “no second law enforcement liability. At the of the Supreme Court’s decision 56 guessing.” It is true that the very least, defense attorneys now in Hayes II, “discovery [in excessive California Supreme Court in Hayes have to prove to the satisfaction force cases] will become more II was careful to emphasize that the of the court, or the jury, that extensive and more evidence will tactics must bear some relevance the tactics employed by law be admissible at trial with respect to the reasonableness of the use enforcement prior to the use of to pre-shooting conduct,” even if of force. Allowing a plaintiff’s force were irrelevant to the ultimate this conduct “did not exacerbate expert to opine on whether law outcome. Depending on the facts the situation or cause the need for enforcement officers could have of a particular case, this may be use of force.” While it is possible avoided the use of force, had they possible. On this issue, some of that there will be more excessive used different tactics, would make the reasoning set forth in Adams is force cases in state court with only it a difficult task for defense counsel still pertinent. In Adams, the court state law claims, the prospect of to keep the jury from engaging in emphasized that many of the alleged recovering attorney fees under 42 “Monday Morning Quarterbacking” negligent tactics were related to officer safety, and “[t]he social value U.S.C. section 1988 provides ample with respect to the federal claims. of protecting the lives of police incentive to plaintiffs’ attorneys to James Arendt, a partner with officers involved in a standoff with plead federal claims as well. Weakley & Arendt in Fresno, an armed individual is extremely commented that while defense 58 As for obtaining summary attorneys used to have “a fighting high.” The Adams court also judgment in use of force cases, chance” of limiting expert opinions rejected the notion that increasing Keck believes that “more use of on police tactics, in light of Hayes II, the tension at the scene was enough force negligence cases will likely it’s “all fair game now.” to create a “special relationship” to go to trial, as the pronounced between the police and the subject, Some defense attorneys like recognizing that “basic police work standards will make it more Fitzgerald believe that the rule of often involves anxiety-producing difficult for public agencies to no legal duty in Adams will only conduct.”59 These arguments are obtain summary judgment on such apply if the police do not inflict the no less valid in a case where the claims in the future.” On the other injury, and otherwise traditional death or injury was caused by law hand, veteran defense litigator negligence will apply. Thus, the enforcement. Because the Supreme James Fitzgerald, a partner of the applicability of the Hayes II rule Court in Hayes II expressly declined law firm McNamara, Ney, Beatty, will depend on the outcome of the to find a tactical duty independent Slattery, Borges & Ambacher in emergency situation. The Adams of the duty to use reasonable force, Walnut Creek, opines that even if case provides a great example. it still should be possible to preclude there is a triable issue of fact with While the decedent died of a opinions of negligent tactics. respect to negligent tactics, defense self-inflicted gunshot wound, he However, whether preclusion is litigators should still seek summary was also subject to gunshots from warranted or not is now governed judgment on any federal claims to the surrounding officers, who by issues of causation and relevance remove exposure to attorney fees. believed they had been shot at.57 rather than a broad rule of no duty. 27 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

*Michael 11 Id. at 521, n. 18. 39 Id. at 636. Linden is a 12 Hayes v. County of San Diego (9th 40 Id. at 637. Deputy County Cir. 2010) 638 F.3d 688, 690-691, 41 Id. at 636. Counsel in the opinion withdrawn and question 42 Id. at 639, n.1. Fresno County certified, (9th Cir. 2011) 658 Counsel’s Office. F.3d 867. 43 Id. at 638-639 (citations omitted), Mr. Linden citing Munoz, supra, 120 Cal. 13 Hayes, supra, 638 F.3d at 690. is assigned to App.4th at 1102, fn. 6 (stating the Litigation 14 Id. at 691. that Fourth Amendment unit, and he also advises the 15 Id. jurisprudence is “instructive” Sheriff’s Office. 16 Id. at 695. when deciding excessive force claims) and quoting Billington Mr. Linden is 17 Id. at 695-96. also an adjunct v. Smith (9th Cir.2002) 292 F.3d professor at San 18 Id. at 692-94. 1177,1190. Joaquin College 19 Id. at 696. 44 Id. of Law in Clovis, Calif., where he 20 Id. 45 Id. teaches Public Entity Liability. 21 Id. at 702 (Rawlinson, J., 46 Id. at 631. dissenting). Justin B. Atkinson is a professor at 47 Id. San Joaquin College of Law in Clovis, 22 Id., citing Hernandez, supra, 46 48 Hayes v. County of San Diego (9th Calif., where he teaches Contracts Cal.4th at 505. and Remedies. Prior to becoming a Cir. 2013) 2013 WL 6224281. 23 Hayes, supra, 638 F.3d at 702. law professor, Atkinson practiced civil 49 Id. at 9, quoting Hayes, supra, 57 litigation as a Deputy County Counsel 24 Hayes v. County of San Diego (9th Cal.4th at 632 (emphasis added). in the Fresno County Counsel’s Office Cir. 2011) 658 F.3d 867. and as an associate at the Fresno law 50 Hayes, supra, 2013 WL 6224281, 25 at 868. firm McCormick, Barstow, Sheppard, Id. at 9. Wayte and Carruth LLP. 26 Id. at 872-73. 51 Id. at 11 (Rawlinson, J. dissenting). 27 J.P. ex rel. Balderas v. City of Endnotes 52 Id. at 11-12. Porterville (E.D. Cal. 2011) 801 53 Id. at 12. 1 Adams v. City of Fremont (1998) 68 F.Supp.2d 965. 54 Id. at 12-13. Cal.App.4th 243; Munoz v. City 28 Id. at 990. 55 Munoz, supra, 120 Cal.App.4th of Union City (2004) 120 Cal. 29 Id. App.4th 1077. at 1097. 30 Id. 2 Hayes v. County of San Diego (2013) 56 See Graham v. Connor (1989) 57 Cal.4th 622. 31 Alvarado v. City of Santa Ana (C.D. 490 U.S. 386, 396 (“The Cal. 2013) 2013 WL 2237891. ‘reasonableness’ of a particular use 3 Hernandez v. City of Pomona (2009) of force must be judged from the 46 Cal.4th 501. 32 Id. at 11. 33 Id. at 12. perspective of a reasonable officer 4 Id. at 509. on the scene, rather than with the 5 Id. 34 Hayes, supra, 57 Cal.4th 622. 20/20 vision of hindsight.”) 6 Id. 35 Id. at 630. 57 Adams, supra, 68 Cal.App.4th at 7 Id. at 510. 36 Id., citing Munoz v. Olin (1979) 24 254. Cal.3d 629, 634; Grudt v. City of Los 58 Id. at 276. 8 Id. at 511-521. Angeles (1970) 2 Cal.3d 575, 587. 59 Id. at 284. 9 Id. at 521, n. 18. 37 Id. at 631. 10 Id. at 522 (Moreno, J., concurring). 38 Id. (italics added).

28 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

Legislation Update Compiled by Kenneth J. Price*

HERE WE GO AGAIN! fiscal restraint. “Now some in California’s economy and its people would say because we have people.” In my last legislative update (Fall this little, little black mark there, 2013), I showcased numerous that we should go on a spending So what is in the budget that is bills passed by the Legislature binge,” said Brown. “I don’t agree making everyone so unhappy? and approved by the Governor with that…it isn’t the time to just that could impact the practices • Taxes: The Governor rejects embark on a whole raft of new of our State Bar Public Law any new taxes even in the face initiatives.” Section members. Now, as I write of some Democrats’ call for this update, the Governor has Despite the Governor’s effort at a new tax on oil extraction. introduced a proposed budget and fiscal restraint, the State remains in Moreover, he is calling for a we face the very beginning of a debt. The budget proposal projects November initiative that would flurry of yet more bills affecting long-term financial liabilities of divert capital gains revenues public agencies. $354.5 billion, including $217.8 into a rainy-day fund to be used billion in unfunded future during down years. Finally, the Last year, the theme of my updates retirement obligations. Governor would make it easier seemed to be happy times are for local governments to raise here again! After several years Predictably, not everyone was money for redevelopment-type of declining revenues, thanks in happy with the budget. The projects by permitting cities and large part to Proposition 30 and Governor received flack from counties to sell bonds and raise an improving economy, the State both sides of the aisle. On the taxes with the approval of 55% enjoyed a significant surplus of right, Assemblyman Tim Donnelly, of the voters rather than the revenues. As a result, legislators who has already announced his current two-thirds threshold felt compelled to introduce new candidacy for Governor, contended required in most cases. programs, which translated into the proposed budget contained efforts to ramp up spending. too much spending. “It must be • Education: The proposed THE CAUTIOUS BUDGET nice to view the state’s problems budget would allocate $61.6 through such rose-colored lenses. billion for elementary and After last year’s temporary euphoria The reality is, a magnitude of secondary education, a boost of of new revenues, the reality of problems still face California. The $6.3 billion from last year. The sound budgetary planning has governor’s surplus is a myth. It will Governor is also adding more set in this year. On January 10, be short-lived, as businesses flee than $1 billion in the budget Governor Brown introduced a the state to escape Prop. 30.” On for California’s universities and $154.9 billion spending plan, which the left, Senate President Pro Tem junior colleges. includes a $1.6 billion rainy-day Darrell Steinberg took the opposite fund and a few billion more for approach. “We shouldn’t be shy • Healthcare: The budget paying off some of the State’s long- to say that there is room, with this recognizes new mandates that term debt. The Governor appears kind of economy and this kind of will result from the Affordable eager to be seen as promoting a budget, to invest and to reinvest Care Act by allocating $16.9 29 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

included $250 million to help pay for the initial construction of high speed rail in the Central Valley. Despite all of the criticism, columnist Dan Walters notes that the Governor is trying hard to avoid the mistakes of many of his predecessors who spent every dollar of the State’s revenue windfall. “Brown seems genuinely bent on bringing order to California’s chaotic fiscal affairs. . . .”

billion for Medi-Cal, which is • Criminal Justice: As part of NEW LEGISLATION now the second largest program the State’s effort to comply with February 21 marks the last day bills funded in the State. Of this the federal mandate to reduce may be introduced. In upcoming spending, $670 million will jail overcrowding, the Governor updates, we will be highlighting be used for new mental health anticipates that 2,200 inmates various legislation introduced would be eligible for release benefits, substance abuse during this cycle. Significant during this new Fiscal Year. treatment, nutrition programs, changes to the Public Contracting Despite this, the State will still and adult and children’s dental Code, the Public Records Act, the miss the courts’ April deadline Public Utilities Code, and County services. to reduce overcrowding and, retirement system (1937 Act) are as a result, the Governor is • Social Services: The Governor expected. Stay tuned! requesting a delay in the anticipates that approximately compliance deadline. If 529,000 families will receive not, the State will spend an *Kenneth J. Price is assistance through CalWorks, a Partner at Baker additional $315 million to Manock & Jensen which represents a modest move inmates to privately PC in Fresno. His practice includes decrease from last fiscal owned prisons. The Governor representing Local year’s caseload. However, the also proposes $500 million to Agency Formation Commissions, budget increases funding for build more prisons. First 5 agencies CalWorks by 5%, which was and various other • Environment and local entities as allocated in last year’s State Transportation: The Budget general counsel. He also handles a myriad of budget, and boosts In-Home transactional matters for public and private anticipates $850 million from sector clients. Supportive Services by 6% to fees under the “cap and trade” approximately $2 billion. program. Moreover, he has

30 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

Litigation & Case Law Update By Scott Dickey*

CEQA/ACTS sued, asking the court to overturn to the counties. Concurrently, CONSTITUTING APPROVAL the certification of the EIR for the Legislature amended AB City of Irvine v. County of Orange failure to adequately address and 900’s funding provisions to (2013) 221 Cal.App.4th 846 mitigate the environmental impacts increase the amount available associated with the expansion to counties, while lowering the County’s application for state funds project. The trial court agreed standards for entitlement, and did not constitute a project approval and ordered the County to vacate reducing the amount the counties under CEQA because it did not its approval of the EIR and the would have to contribute to commit the County to a definite course expansion plan, and to revise the construction. The County applied of action regarding the expansion of EIR. The County appealed, and for construction funds under the its jail facility, and did not effectively the Court of Appeal reversed, amended AB 900. The Board of preclude consideration of any project finding that the EIR “satisfie[d] Supervisor’s resolution approving alternatives or mitigation measures all of CEQA’s requirements.” the application included several otherwise required by CEQA. Nevertheless, while the appeal assurances required by the state, and a resolution that the County For more than 40 years, Orange was pending, the County revised comply with CEQA before County has operated a jail facility and recertified the EIR and accepting the state’s funds. on 100 acres of unincorporated approved the expansion plan. The land it owns adjacent to the City of County did not proceed with the In January 2012, Irvine filed a writ Irvine. The County built the facility expansion, however, because it petition seeking a writ compelling the originally as an honor farm, but over lacked the funding to undertake Board of Supervisors to vacate their the years it has expanded to house the project. approval of the resolution authorizing 1,200 minimum-security inmates. In 2007, the California Legislature the application and enjoining the County from proceeding with the Facing increasing incarceration passed Assembly Bill 900 to AB 900 process until the County levels, in 1996, the County provide $1.2 billion in funding complied with CEQA. Irvine argued prepared an Environmental Impact for local jail construction. The that the approval of the application Report for a phased expansion of County applied for and was for state funds was an approval under the facility to a maximum capacity granted funds under AB 900, but CEQA and that the County could not of 7,584 inmates, noting that declined to accept those funds do so until it prepared and certified the expansion depended upon based on conditions imposed on and EIR or other CEQA document the availability of funding. The their use, including a requirement addressing the current environmental that the County pay 25% of the County later certified the EIR impacts associated with the facility. construction costs, and construct as complete and adequate under The trial court denied Irvine’s petition, a re-entry facility for exiting CEQA and the County “approve[d] and Irvine appealed. . . . and authorize[d] the pursuit inmates. Four years later, the of funding, the initiation of Legislature passed AB 109, which In City of Irvine v. County of Orange design, and the construction of shifted responsibility for jailing (2013) 221 Cal.App.4th 846, the the [facility expansion].” Irvine lower-level offenders from the state Fourth Appellate District agreed 31 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

with the trial court, holding that FFBOR/USE OF ADVERSE kept, and provided the Battalion COMMENTS the “County’s application for state Chief with a copy of the log funds did not constitute a project Poole v. Orange County Fire Authority because he felt that the incidents approval under CEQA because it (2013) 221 Cal.App.4th 155 reflected in the log merited further did not commit the County to a review by the OCFA. The OCFA definite course of action regarding Adverse comments contained in subsequently issued a performance the expansion of its jail facility.” Captain’s daily log of supervisee’s job improvement plan to Poole. The Court called the application performance—but not their personnel In August 2010, Bob James, Poole’s a “preliminary step,” and noted files—were subject to the notice and response requirements of the Firefighters representative with the Orange that the state did not require Procedural Bill of Rights if they are County Professional Firefighters the County to initiate CEQA used for personnel purposes. Association demanded a copy of review until after the County Poole’s “station file” from Culp. received conditional approval to As part of his daily routine, Culp provided James the log he fund the project. In reaching Orange County Fire Authority kept on Poole, which included this conclusion, the Court relied (“OCFA”) Captain Brett Culp more than 100 entries noting times heavily on the California Supreme kept notes—which he called “daily when Poole failed to be prepared Court decision in Save Tara v. logs”—of the performance of each in a timely fashion, failed to pass City of West Hollywood (2008) 45, of the employees he supervised, his pager to his replacement before Cal.4th 116, in which the Supreme noting “any factual occurrence or leaving his shift, failing to remove Court held that the determination occurrences that would aid . . . in his gear from the OCFA unit whether an agency has approved writing a thorough and fair annual before leaving for the day, and a project requires a review of the review” for each employee. He apparently panicking during a “totality of the circumstances and kept these logs by hand initially, training exercise. In September the practical effect of the public but later began maintaining them 2010, Poole demanded that all agency’s action on its ability and electronically, creating a unique log adverse comments be removed willingness to modify or reject the for each employee, and keeping a from his “personnel file” located proposed project.” “The critical printed copy in a manila folder in in the station house. The OCFA question is whether the totality his desk with the employee’s name. refused this request on the grounds of the circumstances surrounding The logs documented the efficiency that the log notes were not entered the public agency’s action has of the firefighters, as well as whether into a “personnel file,” and that effectively committed the agency the firefighters complied with to the extent the comments to the project even though it instructions and adhered to rules. are reflected in Poole’s annual has not provided all approvals Consequently, the logs frequently evaluation, he had the right to or entitlements necessary to included adverse comments. respond to any adverse comments in the evaluation before they were proceed.” The Irvine Court noted In 2009, Culp prepared an annual placed in his personnel file. that although public agencies performance evaluation for Steven are often required to provide Poole, a firefighter who Culp Poole and the Firefighters’ project approvals for their own supervised from September 2008 Association filed a petition for projects, “an agency does not to October 2010. The evaluation writ of mandate seeking a writ commit itself to a project simply concluded that Poole’s performance directing OCFA to include adverse be being a proponent or advocate during the previous year had comments in Poole’s files only after of the project.” It is only when the been “substandard,” finding his complying with section 3255 of actions taken “effectively preclude[] work habits, personal relations, the Firefighters Procedural Bill of . . . [consideration of ] any project adaptability and progress to be Rights (“FFBOR”), which provides alternatives or mitigation measures” “unsatisfactory.” Culp informed that “[a] firefighter shall not have otherwise required by CEQA that a his Battalion Chief that he based any comment adverse to his or public agency has gone too far. his evaluation on the daily logs he her interest entered in his or her 32 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 personnel file, or any other file Financial documents not prepared, owned, holding the Regents’ investments used for any personnel purposes, used, or retained by a public entity are stopped providing the reports. by his or her employer without the not “public records” for purposes of the firefighter having first read and California Public Records Act, even if In September 2011, Reuters signed the instrument containing those documents relate to the conduct of submitted a request under the the adverse comment indicating the People’s business. CPRA for various kinds of he or she is aware of the comment.” financial information pertaining to The trial court denied the relief As of October 2012, the Regents all of the Regents’ investments with sought. The Court concluded that of the University of California Kleiner Perkins, Sequoia, and Accel the daily logs Culp kept were not owned $71.6 billion in investment Partners. The Regents responded part of Poole’s personnel file, and assets, which it uses to help that it did not have individual were therefore not subject to the fund employee pensions student fund data for the three private requirements of section 3255. The scholarships, research, and other equity firms, but directed Reuters trial court analogized the logs to university operations. Since 1979, to information already available “Post-it notes” used as reminders. approximately 2 percent of the on the Regents’ website, showing Regents’ investment assets have the names of the individual funds, In Poole v. Orange County Fire Authority (2013) 221 Cal.App.4th been invested in “private equity.” the vintage year, the University of 155, the Court of Appeal for the Until 2003, the Regents received California commitment, cash in, Fourth District reversed the trial reports from the private equity current net asset value (NAV), cash court’s ruling, concluding that firms holding its investments out, cash out plus NAV, investment “the files were used for personnel that allowed it to monitor the multiple, and, where available, purposes and are subject to the health of those investments, such the net internal rate of return protective procedures instituted as the identity of privately held (IRR). The Regents also provided in the FFBOR.” In reaching this companies in which the fund aggregate numbers for drawdowns, conclusion, the Court noted that invested, the amounts of those distributions, and NAV for the the “FFBOR’s purpose of providing investments, and other information Sequoia, Kleiner Perkins, and firefighters a right to meaningfully the private equity firms regarded as Accel funds on an aggregate basis. respond to adverse comments that confidential business information. Reuters subsequently narrowed its may affect personnel decisions These reports where provided in request to individual fund data for concerning the firefighter is confidence to the Regents. Kleiner Perkins and Sequoia. frustrated when the firefighter’s supervisor maintains a daily log In 2003, a group calling themselves When the Regents did not provide containing adverse comments The Coalition of University the information requested, Reuters that may reach as far back as Employees (“CUE”) submitted filed an action in the Alameda the day after the firefighter’s last a request under the California County Superior Court, alleging yearly evaluation,” which may be Public Records Act (“CPRA”) for, that the Regents’ refusal to provide well beyond the time in which among other things, the internal the individual fund data was a the firefighter could reasonably rate of return for 94 separate violation of their duty under the be expected to recall the events private equity funds. The Regents CPRA. The trial court agreed, leading to the adverse comments. attempted to prevent disclosure finding that although the Regents PUBLIC RECORDS ACT/ by arguing that the information had shown that it did not use the DEFINITION OF PUBLIC contained in the private equity Fund Level Information Reuters RECORDS firms’ reports were trade secrets. sought, it did not demonstrate “that Regents of the University of California v. The Alameda County Superior the Fund Level Information does Superior Court (Reuters America LLC) Court disagreed, and ordered not relate to the conduct of the (2013) 222 Cal. App. 4th 383, ___ disclosure. The Regents’ attempts people’s business or that it does not Cal.Rptr.3d___ (2013 WL 6680787, to appeal were unsuccessful. have constructive possession of that filed Dec. 19, 2013). Consequently, private equity firms information.” Regents appealed. 33 TheThe Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014

In Regents of the University of a writing is “not a public record California v. Superior Court (Reuters under the CPRA, and its disclosure * Scott Dickey is America LLC) (2013) ___ Cal. would not be governed by the a Partner in the Rptr.3d___ (2013 WL 6680787, Act. No words in this statute San Francisco filed Dec. 19, 2013) the Court suggest that the public entity has law firm Renne of Appeal for the First District an obligation to obtain documents Sloan Holtzman Sakai LLP. His reversed. The Court reasoned that even though it has not prepared, practice includes section 6252 of the Public Records owned, used, or retained them.” government law Act (Gov. Code §§ 6250 et seq.) The Court also found that the and litigation, appellate advocacy, unambiguously defines “public trial court erred in reading section election law and tax allocation and assessment. He has represented records” as a writing that is both 6252 and 6253 to include not only numerous California cities and other related “to the conduct of the possession of public records but public agencies in complex litigation public’s business and is prepared, “constructive possession,” finding and appeals. owned, used, or retained by” a no support for that proposition in public entity. The Court found the CPRA or the cases relied upon that absent both circumstances, by the trial court.

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34 ™ Your Partner in Practice

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