CSAC sponsors a Litigation Coordination Program that is
administered by the County Counsels’ Association. The program is
directed by the Association’s Litigation Overview Committee,
consisting of county counsels representing all areas of the
state, in conjunction with a litigator coordinator with offices
in Sacramento.
The program monitors litigation of concern to counties statewide,
coordinates the defense of major multi-county litigation,
provides amicus (friend of the court) support where appropriate
and disseminates current information to county counsels in the
form of litigation alerts and updates on cases involving public
law issues.
For more information, contact Jennifer Henning, Executive
Director, County Counsels’ Association of California.
Following is a list of recent briefs that have been filed on
behalf of the Ligitation Coordination Program.
This case raises the question of whether an agency’s adoption of
water rates are subject to referendum. The Court of Appeal
found that setting water rates is a legislative act, and
therefore is subject to referendum. The California Supreme
Court granted review. CSAC’s brief in the Supreme Court,
which was drafted by Michael Colantuono of Colantuono, Highsmith
& Whatley in Grass Valley, argues that such levies are not
subject to referendum, but are subject to the people’s initiative
power.
CSAC has filed a brief in support of Stanislaus County in the
California Supreme Court on the issue of whether issuance of a
groundwater well permit under the county’s ordinance is
ministerial, or whether it is discretionary and thus triggers
CEQA review. CSAC’s brief was drafted by its Associate
Counsel Laura Hirahara.
CSAC has filed an amicus brief in the California Supreme Court on
the issue of whether a defendant (in this case, a public agency)
who commits an intentional tort can be required to pay 100% of a
plaintiff’s damages when the defendant is only responsible for a
small percentage of the damages caused. The brief, which
was prepared by Derek Cole at Cole Huber, argues that Prop. 51’s
comparative fault requirements prevents such liability.
Thus, where the county was only 20% responsible for plaintiff’s
damages, it could not be required to pay 100% of the damages
award.
This case raises the question of whether private counsel
representing a minor in an appeal in a dependency matter is
entitled to attorneys’ fees under the private Attorney General
statute (Code of Civil Procedure section 1021.5). CSAC’s
brief, drafted by Elizabeth McDonald Muniz in the San Francisco
City Attorney’s Office, argues that because minors are provided
counsel by the courts, allowing attorneys’ fees for private
counsel is not authorized by statute and creates perverse
incentives that contravene the purposes of the child welfare
system.
CSAC filed a brief in the California Supreme Court on the issue
of how remedies are applied under the Unfair Competition
Law. CSAC’s brief, drafted by Yvonne Mere and Owen Clement
in the San Francisco City Attorney’s Office, pushes back against
the arguments that UCL remedies cannot be enforced statewide.
The CSAC Board of Directors adopted a policy that opposes efforts
to “reverse expansions to the Medi-Cal program, which will shift
the responsibility of providing these individuals with healthcare
from the Medi-Cal program to counties, which are required to
provide services to the medically indigent.” Consistent
with that policy, this amicus brief, drafted by Lorraine Van Kirk
in the Santa Clara County Counsel’s Office, informs that Fifth
Circuit Court of Appeals of the serious negative consequences
that counties will suffer if a trial court ruling striking down
the Affordable Care Act in its entirety is affirmed.
CSAC’s amicus brief in this case addresses two important CEQA
issues: (1) Whether further environmental review is required
under a program EIR for a project that is determined to be
consistent with the EIR; and (2) The degree to which social and
psychological impacts must be considered in an environmental
review. CSAC’s brief was drafted by its Litigation Counsel
Jennifer Henning.
In this case, CSAC argues that when a public agency brings a
public nuisance action under State law in State court, it is
improper to allow defendant to remove the case to federal
court. CSAC’s amicus brief was drafted by Luke Edwards in
the Santa Clara County Counsel’s Office.
CSAC has filed an amicus brief in support of El Dorado County in
this Mitigation Fee Act case. At issue in this case is the
question of what statute of limitations applies to claims for
refunds under the Act, and whether a claimant must show harm or
substantial injury caused by the local agency prior to being
eligible for a fee refund. CSAC’s brief was drafted by its
Litigation Counsel Jennifer Henning.
CSAC supported Sonoma County efforts to have the Ninth Circuit
reconsider a case addressing the County’s application of a State
law requiring a 30-day vehicle impoundment is a driver is cited
for operating a vehicle without a license. The amicus brief
argues that the impoundment does not violate the Fourth
Amendment, and that the County cannot be held liable for
implementing the State’s policy. CSAC’s brief was drafted
by its Litigation Counsel Jennifer Henning.
This appeal, pending in the federal Ninth Circuit Court of
Appeals, raises the question of when a case can be removed from
state court to federal court. CSAC’s amicus brief makes the
argument that public nuisance claims, such as the one at issue in
this case, are quintessentially state law claims that are not
properly removed to federal court, and that allowing such removal
would eliminate the right of counties acting as plaintiffs to
pursue their claims in the venue of choice. CSAC’s amicus
brief was drafted by Laura Trice and Luke Edwards in the Santa
Clara County Counsel’s Office.
CSAC is supporting the City of Newport Beach’s request to the
United States Supreme Court to review a case that raises the
issue of whether and how the Americans with Disabilities Act
applies to law enforcement responding to an exigent
situation. CSAC’s brief was drafted by Lee Roistacher at
Daley & Heft in Solana Beach.
In this case pending at the Ninth Circuit Court of Appeals,
CSAC’s amicus brief addresses two important aspects of
administrative hearings before local governmental bodies: (1)
what level of deference should be afforded to the local agency;
and (2) whether the court can consider evidence outside of the
record when reviewing a local agency’s determination.
CSAC’s brief was drafted by Susan Greenberg in the Santa Clara
County Counsel’s Office.
CSAC has filed a brief in support of Sacramento County on the
issue of liability for code enforcement activity. CSAC’s
brief, which was drafted by Tim Coates at Greines, Martin, Stein
& Richland in Los Angeles, argues that a local government does
not violate a property owners rights when enforcement actions are
initiated by a complaint, even if the complaint is submitted by a
business competitor. Similarly, the brief defends the
practice of allowing businesses pay for costs to help timely
process permit applications.
CSAC is supporting CSBA’s Supreme Court challenge to the State’s
attempt to avoid providing mandate reimbursements by requiring
local agencies to “use existing funds first” to pay for
mandates. Under these “pay first” statutes, there are no
programmatic reductions that would result in a net revenue
increase, nor is there any new funding provided for the cost of
the mandate. Nevertheless, the State contends, and the
Court of Appeal agreed, that there is offsetting revenue that
eliminate the need for mandate subventions merely by directing
local agencies to pay for the mandate first with existing State
funding. The Supreme Court granted review and is now
considering the issue. CSAC’s amicus brief was drafted by its
Litigation Counsel Jennifer Henning.
In this amicus brief, CSAC defends the City of Oakland’s public
art ordinance, which requires large residential and commercial
development to spend a specified percentage of the project cost
(or pay a similar in lieu fee) to install public art. CSAC
argues that the ordinance does not create an unconstitutional
taking, and does not implicate First Amendment speech. The
brief was drafted by Philip Seymour at the Sohagi Law Group in
Los Angeles.
CSAC has filed a brief in federal court on the issue of what
standards the court should apply when evaluating an officer’s use
of force. The brief argues that the Ninth Circuit Court of
Appeals must follow the standards established by the US Supreme
Court when evaluating constitutional claims involving use of
force when there is a mistaken, but reasonable, belief that a
suspect is holding and refusing the drop a weapon. CSAC’s
brief was drafted by Lee Roistacher at Daley & Heft in Solana
Beach.
CSAC has joined a local government coalition amicus brief in a
consolidated case pending in the federal Court of Appeals in
Washington, D.C. that asks that court to consider the unintended
consequences on local government operations that may result from
repeal of so-called “net neutrality” regulations. The
amicus brief was drafted by Elina Drucker in the New York City
Office of Corporation Counsel.
CSAC has filed a brief in the Ninth Circuit Court of Appeals on
the issue of when qualified immunity applies in employment
disciplinary decisions. In the brief, CSAC argues qualified
immunity should be available in a claim that an employee’s
termination violated his First Amendment rights where it was not
clearly established that the employee’s conduct was protected
speech. The brief was prepared by Alison Turner at Greines
Martin in Los Angeles.
This case raises the question of whether the services supported
by rates for water can include the cost of providing sufficient
water flows to allow fire fighters to connect to a hydrant and
fight fires. CSAC’s brief argues that water rates can
properly include the costs of providing sufficient flows to allow
for adequate fire protection. The brief was drafted by
Daniel Hentschke in Solana Beach, and Thomas Bunn at Lagerlof,
Senecal, Gosney & Kruse in Pasadena.
