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PETITIONERS' OPENING MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF CROSS-PETITION FOR WRIT
OF MANDATE
CITY OF MARINA,
Plaintiff,
vs.
ARMSTRONG RANCH PROPERTY OWNERS; GIBSON SPENO
LLC- MARINA; RMC LONESTAR; LANDWATCH MONTEREY
COUNTY and DOES 1 through 20, inclusive,
Defendants.
Case No. M 52386
Action Filed: February 1, 2001
Hearing Date: May 18, 2001
Time: 9:00 a.m.
Dept.: 17
Hon. Michael S. Fields
PRELIMINARY STATEMENT
On February 1, 2001, the City of Marina ("City")
filed a declaratory relief action ("Complaint")
seeking to do what no case precedent in the history
of California supports: use taxpayer funds to
question the validity of an initiative ordinance
duly enacted by the City's voters. The Complaint
named as defendants LandWatch Monterey County
("LandWatch"), one of the initiative's many
supporters, as well as various developers and
landowners opposed to the Measure. The California
Constitution precludes the City's action and
instead mandates that the City must defend the
initiative in question--the Marina Urban Growth
Boundary Initiative ("Measure E")--against any
judicial challenge. Here, the City's Complaint
appears to have precipitated just such a challenge.
Indeed, four days after the City filed its
Complaint questioning Measure E's validity, certain
developers and individuals opposed to the Measure
filed a cross-complaint ("Developers'
Cross-Complaint") against the City, asserting that
Measure E violates state law. The City responded by
filing its own cross-complaint against LandWatch,
for the stated purpose of making sure that
LandWatch was present in the developers'
action.(1)
The instant Cross-Petition for Writ of Mandate
("Petition") seeks to compel Respondents City and
City of Marina City Council ("Council") to reverse
their present unlawful Actions challenging Measure
E. Petitioners herein are LandWatch, defendant in
the City's Actions; and Kenneth L. Gray and Marina
2020 Vision ("Marina 2020"), the official
proponents of Measure E. As detailed below, the
City and Council have a mandatory duty to defend
Measure E, which they have violated by suing
LandWatch. Accordingly, Petitioners ask the Court
to issue a peremptory writ of mandate directing
Respondents to: (1) dismiss the City's Actions in
their entirety; and (2) to comply with their
mandatory duty to defend Measure E against the
Developers' Cross-Complaint.
LandWatch has previously filed a special Motion
to Strike the City's Complaint, as against
LandWatch, under the anti-SLAPP statute. This
Motion is currently scheduled to be heard on May 4,
2001, and should suffice to remove LandWatch from
that action. The instant Petition is also
necessary, however, because the City otherwise will
continue to prosecute its original Complaint
against the developers and its Cross-Complaint
against LandWatch. Incredibly, the City has refused
to dismiss these Actions even though the developers
have filed their own Cross-Complaint seeking a
judicial declaration that Measure E is invalid.
Rather, the City continues to maintain its Actions
for the sole purpose of ensuring that LandWatch
will assume the burden of defending Measure E.
The City's actions are inconsistent with the
Constitution's guarantee of the initiative power.
Under our democratic system of government, the City
and its Council--not private citizens and
non-profits--must defend the City's own duly
enacted initiative.
STATEMENT OF FACTS
I.ADOPTION OF MEASURE E AND THE CITY'S NEW
GENERAL PLAN.
On November 7, 2000 the voters of the City of
Marina adopted Measure E, amending the City's
General Plan to create an urban growth boundary
("UGB") along the City's northern boundary. To
promote stability in long-term planning for the
City, Measure E prohibits the Council from
permitting urban development north of the UGB for a
period of twenty years, except in certain
circumstances. Measure E, §§ 1-2
(attached as Exhibit 1 to the Declaration of Robert
S. Perlmutter in support of Petition for Writ of
Mandate ("Petition Decl.")).
Measure E was proposed by Petitioners Kenneth L.
Gray, Marina 2020, and others, in response to the
Council's unwillingness to address their concerns
about urban sprawl in the area during the process
of updating the General Plan. The City had been
sporadically attempting to update its General Plan
since at least the mid-1990's, and Petitioners had
been active participants in that process.
Petitioners were particularly concerned about the
Council's unwillingness even to analyze and
consider a general plan alternative that would not
result in the immediate development of the open
space lands north of the City. Petition Decl.
¶ 22 & Ex. 6; Petition ¶ 20.
The circumstances surrounding the adoption of
Measure E are detailed in LandWatch's Motion to
Strike, the instant Petition, and the accompanying
Petition Declaration. Petition ¶¶ 10-27;
Motion to Strike at 2-5. What follows is a brief
summary. Petitioner Gray presented a preliminary
"final draft" of Measure E to the City on February
9, 2000, and after receiving written feedback from
the City Attorney, formally filed the final version
of the measure on March 8th. Petition Decl. Exs.
2-4. The Council officially determined that
sufficient signatures had been gathered to qualify
Measure E for the November 2000 ballot on July
18th. Id. ¶ 23. For the next several months,
the City worked at break-neck speed in an effort to
amend the General Plan prior to the November 7,
2000 election. The Marina Planning Commission,
which normally meets twice a month, met seven times
between August 10, and September 21, when it
formally recommended that the Council adopt the new
General Plan. Id. Ex. 5 at 2. State law requires
that before a city council can amend the general
plan, it must receive a recommendation on the
proposed plan from its planning commission. Gov't
Code § 65354. In this case, however, even
before the Commission completed its work, the
Council moved into high gear. Indeed, between
September 5 and October 31, the Council held no
less than 7 meetings to revise the proposed General
Plan. Petition Decl. Ex. 5.
Marina 2020, LandWatch, and over 150 Marina
citizens urged the Council not to take final action
on the proposed General Plan until after the
imminent election. Id. ¶ 24 & Exs. 6-7.
Instead of waiting seven days to see what the
voters would decide, however, the Council hastily
voted to adopt the new General Plan on October 31
(2). One week later, on November 7, with
the support of Marina 2020, LandWatch, and others,
the City's voters adopted Measure E. Under state
law, the new General Plan did not become effective
until, at the very earliest, 30 days after the
Council's vote (i.e., Nov. 30, 2000). Complaint
¶ 3. Thus, when the voters adopted Measure E
on November 7, 2000, the old General Plan remained
in effect. The City received the official election
results on November 29. Petition Decl. Ex. 9. The
Council did not certify those results until
December 5, five days after the new General Plan
allegedly took effect. Complaint ¶ 4.
As the Council acknowledges, it amended the
General Plan in a manner that it knew would
conflict with Measure E. Marina City Council,
Measure E Background/Briefing Paper at 2, 5 (March
5, 2001) ("White Paper") (attached to Petition
Decl. as Ex. 10). While Measure E would restrict
urban development beyond the UGB, the new General
Plan purports to allow intensive development in
that same area. (By contrast, as the Council also
acknowledges, Measure E is consistent with the old
General Plan in effect on November 7, 2000. Id. at
2.) What is perhaps most striking about the
Council's choice to adopt a General Plan that would
allow this development is that the City Attorney
had repeatedly and publicly advised the Council
that if it did so, and the voters also approved
Measure E, "that new General Plan would have to be
further revised or amended as soon as possible" to
be consistent with Measure E. Petition Decl. Exs.
11 & 12. The City has not yet proposed any such
revisions.
II. THE CITY'S REFUSAL TO DEFEND MEASURE
E.
Notwithstanding the City Attorney's repeated and
unambiguous pre-election advice that the Council
would need to revise the new General Plan to make
it consistent with Measure E, the Council claims
that it has since been informed that Measure E
"may" be invalid because of this very
inconsistency. White Paper at 2, 4-5. Indeed, an
attorney of record for the City in this action,
Marie A. Cooper, has represented to Petitioners'
counsel, Robert S. Perlmutter, that she believes
the General Plan inconsistency created by the
Council's Halloween vote renders Measure E invalid.
Petition Decl. ¶¶ 25-27 & Exs. 13
& 14. Accordingly, Ms. Cooper represented to
Mr. Perlmutter that she cannot in good faith defend
Measure E before this Court. Id. ¶ 26. As
mentioned above, the City Attorney certainly did
not share this view prior to the election, and it
is not supported by any legal authority.
(3)
In any event, as Ms. Cooper further explained to
Petitioner's counsel, because of her view that
Measure E is invalid, she proposed that the City
should sue LandWatch in the Actions and ask the
Court to declare whether Measure E is valid,
presumably after LandWatch bore the entire expense
of defending the Measure. Id. ¶ 26. Of course,
that is exactly what the City has done.
Specifically, on February 1, 2001--one day after
the statute of limitations allegedly expired to
bring a facial challenge to the City's adoption of
the new General Plan--the City filed its Complaint
against LandWatch, as a supporter of the
initiative, and various developers who oppose it.
Documents provided to LandWatch by the City show
that the City Attorney and the developers'
attorneys discussed possible bases to challenge
Measure E on January 26th and 29th, prior to the
filing of the City's Complaint. Id. Ex. 15. The
City did not contact LandWatch prior to filing its
Complaint and, aside from twice suing the
organization, has never asked LandWatch for its
views about Measure E's validity or how it might be
integrated into the October 31st General Plan.
Upon learning of the City's Complaint, LandWatch
immediately wrote the City requesting that it
dismiss the lawsuit. Id. Ex. 16. On February 13,
2001, LandWatch sent the City a second letter
stating that, if the City did not dismiss its
Complaint, LandWatch would have no choice but to
bring a special motion to strike. Id. Ex. 17.
LandWatch also alerted the City to the principal
Supreme Court authorities establishing that the
City has a duty to defend the Measure. While the
City Attorney indicated that he would provide a
response to this letter (id. Ex. 18 at 2), he never
did so.
Meanwhile, apparently using the City's Complaint
as a litigation road map, the developers filed a
cross-complaint against the City on February 5,
2001, asserting essentially the same allegations as
the City raised. Compare City's Complaint ¶
11, with Developers' Cross-Complaint ¶ 1. As
noted above, the issues raised by the developers
were discussed with the City Attorney prior to the
filing of either action.
On March 22, 2001, the City filed its answer to
the developer's cross-complaint. Nowhere in that
answer did the City attempt to defend Measure E,
claim that Measure E was valid, or assert any
affirmative defenses. Instead, apparently based on
Ms. Cooper's stated belief that Measure E is
invalid, and that her duties as an officer of the
Court therefore preclude her from defending the
measure in Court, the City simply asked for "a
declaration or writ regarding the validity of
Measure E." Answer at 6.
Also on March 22nd, the City filed a second
lawsuit against LandWatch, and only LandWatch, in
the form of a "cross-complaint" to the developers'
lawsuit. The City's filing of this second lawsuit
can only be described as reckless. LandWatch had
already informed the City that it was moving to
strike the City's Complaint and that the City would
be faced with a mandatory award of attorneys' fees
if LandWatch prevailed. Petition Decl. Ex. 17.
Moreover, even assuming that the City had any valid
basis or legal authority for bringing its initial
Complaint--and it emphatically does not--its
asserted rationale for suing LandWatch a second
time is simply nonsensical.
Specifically, in an April 4th letter informing
LandWatch that the City had filed, but
inadvertently neglected to serve, a second lawsuit
against it, the City stated that the new lawsuit
"was filed so that all parties will be at the table
(or bench) on all causes of action." Id. Ex. 19;
see also City's Cross-Complaint ¶ 1 ("The City
names LandWatch in this cross-complaint []
to ensure that initiative proponents are not
excluded from being able to participate in the
cross-action.") (emphasis added). Given that the
City had already sued LandWatch on the identical
grounds, LandWatch was already "at the table." More
importantly, because the City has a duty to defend
Measure E, it may not properly shift that duty to a
private party.
ARGUMENT
I. STANDARD OF REVIEW
Code of Civil Procedure ("CCP") section 1085
provides that a "writ of mandate may be issued by
any court . . . to any inferior tribunal,
corporation, board, or person, to compel the
performance of an act which the law specifically
enjoins . . ." CCP § 1085. "The availability
of writ relief to compel a public agency to perform
an act prescribed by law has long been recognized."
Santa Clara County Counsel Attorneys Ass'n v.
Woodside, 7 Cal.4th 525, 539 (1994). To obtain such
writ relief, a petitioner must show two things:
"'(1) A clear, present and usually ministerial duty
on the part of the respondent . . . ; and (2) a
clear, present and beneficial right in the
petitioner to the performance of that duty . . .'"
Id. (citations omitted). The Supreme Court has
repeatedly held, however, that this second
requirement is met as a matter of course if "the
question is one of a public right and the object of
mandamus is to procure enforcement of a public
duty." Green v. Obledo, 29 Cal.3d 126, 144 (1989);
8 Witkin, Cal. Procedure, Extraordinary Writs
§ 83 at p. 870 (4th ed. 1997). Where a
sufficient showing of duty and public right is
made, and no other adequate remedy is available,
"the 'discretion' to deny [the writ]
practically disappears. The petitioner is then
entitled to the writ 'as a matter of right.'" 8
Witkin, Cal. Procedure, Extraordinary Writs §
72 at p. 853-54 (4th ed. 1997) (quoting May v.
Board of Directors, 34 Cal.2d 125, 133 (1949)).
II. THE COURT MUST ISSUE A WRIT DIRECTING THE
CITY TO DISMISS ITS ACTIONS AND TO DEFEND MEASURE E
BECAUSE PETITIONERS HAVE SATISFIED THE CRITERIA FOR
MANDAMUS.
It is well-established that once an initiative
is adopted by the voters of a jurisdiction, that
jurisdiction must defend the measure if its
validity is challenged in a judicial action. Here,
rather than defend Measure E, the City brought two
lawsuits questioning its validity and attempting to
force LandWatch, a private nonprofit entity that
supported Measure E, to bear the City's burden of
defending the Measure. A writ must issue compelling
the City to assume its mandatory duty to defend the
Measure and to dismiss its Actions challenging
Measure E.
A. The City Has No Discretion to
Bring a Lawsuit Challenging Measure E Because it
Has a Mandatory Present Duty to Defend the
Measure.
As the California Supreme Court has explained,
"a city or county is required to defend an
[adopted] initiative ordinance."
(4) Building Indus. Ass'n v. City of
Camarillo, 41 Cal.3d 810, 822 (1986) ("BIA").
This duty is rooted in the fact that the
constitutionally reserved initiative power not
only is "greater than that of the
[legislative body]," but in fact gives
the people "the final legislative word, a
limitation upon the power of the Legislature."
Rossi v. Brown, 9 Cal.4th 688, 704 (1995).
Indeed, for the past century, California
citizens have exercised their reserved powers of
initiative and referendum as a "legislative
battering ram" for the purpose of
"tear[ing] through the exasperating
tangle of the traditional legislative procedure
and strik[ing] directly toward the
desired end." Amador Valley Joint Union High
Sch. Dist. v. State Bd. of Equalization, 22
Cal.3d 208, 228 (1978). In Rossi, 9 Cal.4th at
695, the Supreme Court reiterated its
long-standing directive that the judiciary must
jealously guard and protect this power:
The initiative and referendum are not rights
'granted to the people, but . . .
power[s] reserved by them. Declaring it
the duty of the courts to jealously guard this
right of the people,' the courts have described
the initiative and referendum as articulating
'one of the most precious rights of our
democratic process.' [I]t has long been
our judicial policy to apply a liberal
construction to this power wherever it is
challenged in order that the right not be
improperly annulled. If doubts can reasonably be
resolved in favor of the use of this reserved
power, courts will preserve it.
Because of this constitutionally compelled
mandate, a number of legal safeguards exist to
"ensur[e] that successful initiatives
will not be undone by subsequent hostile boards
of supervisors." DeVita, 9 Cal.4th at 788. Most
importantly, the Legislature has provided that
"[i]f a majority of the voters voting on
a proposed ordinance vote in its favor, the
ordinance shall become a valid and binding
ordinance of the city. . . . No ordinance that
is . . . adopted by the voters[] shall
be repealed or amended except by a vote of the
people . . ." Elections Code § 9217
(emphasis added); see DeVita, 9 Cal.4th at
796-97 (applying analogous provisions of section
9125 to uphold an initiative general plan
amendment that, like Measure E, prohibited
county officials from changing the relevant
provisions of the general plan without a vote of
the people). (5)
As noted above, the Supreme Court in BIA
expressly recognized the legislative body's duty
to defend a duly adopted initiative, which is
grounded in these same constitutional
principles. At issue in BIA was whether Evidence
Code section 669.5--which places the burden of
defending a growth control ordinance on its
proponents--applied to adopted initiatives. An
amicus had argued that section 669.5 should not
apply because local elected officials, like the
Council here, generally do not favor slow-growth
initiatives and would therefore not
conscientiously defend them. The Supreme Court
rejected that argument, explaining that the "the
city or county would have a duty to defend the
ordinance." (6) BIA, 41 Cal.3d at
822. Of course, the Court was also realistic
enough to recognize that, despite this duty, the
city "might not [defend] with vigor if
it has underlying opposition to the ordinance."
Id. Accordingly, the Court concluded that the
initiative proponents should be allowed to
intervene, if they so chose, id., an option
which Petitioners unfortunately may yet have to
exercise here.
In the entire history of the initiative power
in this state, however, not a single published
case has ever found--or even remotely
suggested--that a legislative body has the power
to avoid its duty to defend an adopted
initiative, or to shift that obligation to a
private party. Rather, even hostile city
councils and boards of supervisors that
initially opposed initiative measures have
repeatedly recognized that, once the voters have
spoken, their elected officials have the duty to
defend and uphold the voters' final legislative
word. See, e.g., DeVita, 9 Cal.4th at 771, 788;
Lesher Communications, Inc. v. City of Walnut
Creek, 52 Cal.3d 534, 551(1990) (Mosk, J,.
dissenting); Mervyn's v. Reyes, 69 Cal.App.4th
93, 98-99 (1999) (council voluntarily adopted
qualifying measure that flatly reversed council
majority and defended measure in court); Bank of
the Orient v. Town of Tiburon, 220 Cal.App.3d
992, 997 (1990); BIA v. Oceanside, 27
Cal.App.4th 744, 748 (1994). Indeed, in the one
Supreme Court decision where the council decided
not to vigorously defend a challenge brought by
a third party, the Court roundly condemned the
city attorney for not doing so. Arnel Dev. Co.
v. City of Costa Mesa, 28 Cal.3d 511, 514 n.3
(1980). The Court stated, "Apparently believing
that his duty is to represent the city council
instead of the voters of Costa Mesa, the city
attorney did not defend the initiative. When the
Court of Appeal held the initiative invalid, he
did not petition this court for hearing." Id. So
outraged was the Court that, on its own motion,
it reviewed the court of appeal decision
invalidating the initiative and reversed.
Id.
Does this mean that a council is powerless to
prevent the expenditure of public funds on a
measure that it firmly believes is invalid? Not
at all. While the courts have insisted that
public officials' duties with respect to
proposed measures are almost entirely
ministerial,(7) they nonetheless have
carved out a narrow exception for precisely this
situation. If a council believes that it can
make a compelling showing that a measure is
clearly invalid, it may seek judicial review
before the election to determine whether the
matter should be placed before the voters. SAFE,
13 Cal.App.4th at 149; deBottari, 171 Cal.App.3d
at 1209 (council may lawfully withhold a
qualified measure from the ballot only if it is
"'directed to do [so] by a court on a
compelling showing that a proper case has been
established for interfering with the
[initiative] power'"); see Schmitz v.
Younger, 21 Cal.3d 90, 92-93 (1978) (even where
the Attorney General believes a statewide
initiative is invalid, he has a ministerial duty
to prepare a ballot title and summary, but
explaining that "[t]his does not mean
that the Attorney General may not challenge the
validity of a proposed measure by timely and
appropriate legal action") (emphasis added).
The City did not take advantage of this
procedure here by filing a timely pre-election
challenge to Measure E. Nor could it have done
so successfully. As the Council itself
acknowledged in its White Paper, the primary
basis for Measure E's alleged invalidity (viz.,
its inconsistency with the new General Plan) did
not even exist until at least 23 days after the
election. See White Paper at 5-6. Now that the
voters have enacted Measure E, the Council may
not properly initiate a post-election court
challenge questioning the measure's validity.
Rather, the validity of Measure E, like any
other city enactment, is properly tested in an
action against the governmental official or
entity responsible for its enforcement--not
against a private party that supported enactment
of the ordinance. CCP § 1085; see, e.g.,
Legislature v. Eu, 54 Cal.3d 492 (1991); BIA, 41
Cal.3d at 810. Of course, in the present case,
such a post-election challenge to Measure E has
already been filed against the City. Rather than
pursue its unauthorized and illegal "declaratory
relief" action, the City must defend against the
developers' cross-complaint.
B. Petitioners Have a Clear, Present and
Beneficial Right in The Writ.
The second requirement for issuance of a writ
(i.e., that petitioners have a beneficial right
in respondents' performance of the asserted
duty) is established here as a matter of law
because the defense of Measure E is an important
public right. As the Supreme Court has
repeatedly held, no particular showing of a
present, beneficial right need be shown "where
the question is one of a public right and the
object of mandamus is to procure enforcement of
a public duty." Green, 29 Cal.3d at 144; see 8
Witkin, Cal. Procedure, Extraordinary Writs
§ 83 at p. 870 (4th ed. 1997) (citing
additional cases). There can be no question that
the City's duty to defend Measure E, and the
duty of local officials to defend adopted
initiative measures generally, is a matter of
sufficient public right to warrant mandamus
relief. Indeed, the Supreme Court has
"[d]eclar[ed] it the duty of the
courts to jealously guard this right of the
people,' . . . [and] described the
initiative (8) as articulating 'one
of the most precious rights of our democratic
process.'" Rossi, 9 Cal.4th at 695 (citations
omitted); see also BIA, 41 Cal.3d at 822; Arnel,
28 Cal.3d at 514 n.3 (chastising city attorney
for failing to petition Supreme Court for review
of appellate ruling invalidating an adopted
initiative).
Moreover, even assuming, arguendo, that
Petitioners need to show a beneficial interest
separate from the public at large, they can
readily do so by virtue of their status as the
official proponents and prime supporters of
Measure E. Indeed, it is this very interest that
the City claims is the basis for its illegal
lawsuits against LandWatch. See Complaint ¶
1 ("The City names initiative proponents . . .
so that parties who are keenly interested in . .
. the validity of the [Measure] have an
opportunity to address the Court"); id.
¶¶ 6-7 (describing the stake of
LandWatch and Marina 2020 in Measure E);
Cross-Complaint ¶¶ 1, 6, 7. The nature
and scope of Petitioners' beneficial interests
in this proceeding, and in the City's defense of
Measure E, are further documented in the
verified Petition submitted herewith. Petition
¶¶ 3-7; see also BIA, 41 Cal.3d at 822
(initiative proponents' special interest in
adopted initiative generally requires that they
be allowed to intervene in its defense).
Accordingly, because Petitioners have
satisfied both requirements for the issuance of
a writ, and because there is no other adequate
remedy at law, they are entitled to the writ "as
a matter of right." May, 34 Cal.2d at 133.
C. Courts Have Issued Writs to Compel
Local Agencies to Pursue Judicial Relief in
Similar Circumstances.
As the Supreme Court has recently reaffirmed,
"Mandamus is [broadly] available to
compel a public agency's performance or correct
an agency's abuse of discretion whether the
action being compelled or corrected can itself
be characterized as 'ministerial' or
'legislative.'" Woodside, 7 Cal.4th at 541.
Accordingly, the courts have long held that
mandamus is an appropriate remedy to compel
local officials to undertake ministerial duties
comparable to defending a duly adopted
initiative, and there can be no doubt that such
relief is proper here.
In Board of Supervisors v. Simpson, 36 Cal.2d
671 (1951), for instance, the Supreme Court
issued a writ of mandamus under CCP section 1085
to compel the Los Angeles County district
attorney to institute judicial proceedings to
abate a public nuisance. The district attorney
had refused to initiate a civil action to abate
the nuisance on the grounds that it was the
county counsel's duty to prosecute the action.
Id. at 672. The Court rejected that argument,
and expressly held that because "it is the duty
of the district attorney . . . to prosecute
[such] actions[,] . . . mandamus
is the proper remedy . . ." Id. at 675; see also
Nasir v. Sacramento County Dist. Attorney, 11
Cal.App.4th 976, 990-93 (1992) (reversing trial
court and issuing writ to compel the district
attorney to commence judicial forfeiture
proceeding); Cf Woodside, 7 Cal.4th at 541-43
(granting writ of mandamus to compel the Santa
Clara County Board of Supervisors to bargain in
good faith with the collective bargaining unit
for the attorneys in the county counsel's
office); see generally Witkin, Cal. Procedure,
Extraordinary Writs § 87 at 874-76 &
2000 Supp. at 119-20) (4th Ed. 1997) (explaining
that "the ministerial acts of local
administrative boards and officers that can be
compelled by mandamus are virtually unlimited in
number" and listing cases).
Most recently, in Bradley v. Lacy, 53
Cal.App.4th 883 (1997), the Court of Appeal
ordered the trial court to issue a writ of
mandate compelling the district attorney to
serve, file, and prosecute an accusation
returned by the grand jury against a member of
the Board of Supervisors accused of official
misconduct. State law required that, once the
grand jury had returned an accusation, the
district attorney "shall" serve the accusation
and file it with the superior court. Id. at
866-67; see Gov't Code § 3063. The county's
district attorney ("Lacy") nonetheless had
refused to file and serve the accusation and a
county resident had petitioned for a writ of
mandate compelling Lacy to do so. The trial
court correctly found that Lacy had no
discretion to refuse to file the accusation. Id.
at 887. Because it lacked explicit statutory
"'authority to require the district attorney to
proceed with the prosecution[,]'
however, the trial court concluded that
"compelling him to commence the prosecution
would be an 'idle act'" and refused to issue the
writ. Id.
The Court of Appeal reversed, explaining that
allowing the district attorney to exercise
discretion as to whether to initiate prosecution
would "in effect, [] nullify the grand
jury's decision to prosecute." Id. at 893. The
Court of Appeal also rejected the trial court's
concern that, as a practical matter, it could
not oversee the district attorney's prosecution
of the case. The Court of Appeal explained that
"[a]s an officer of the court, the
district attorney must perform his duties in a
professional manner. [] We will not
presume a district attorney would default in
discharging the responsibilities of his office
by failing diligently to prosecute an accusation
returned by the grand jury." Id. at 895.
The same reasoning applies here. To allow the
City to proceed with its declaratory relief
Actions and to avoid defending Measure E would
be, "in effect, to nullify" the voters' decision
to adopt the Measure. Moreover, just as the
district attorney in Bradley was duty-bound as
an officer of the court to prosecute the action
diligently, so too here, the City's attorneys
are duty-bound to defend Measure E diligently.
Id.; see also Arnel, 28 Cal.3d at 514 n.3
(criticizing the city attorney for failing to
defend an adopted initiative land use measure up
through the appellate process). Of course, it
may be that the City Attorney and the outside
counsel who filed the instant actions against
LandWatch are, for that reason, disqualified
from defending Measure E (9). If that
proves to be the case--and the Court need not
decide this issue here--the City may need to
obtain other independent counsel.
CONCLUSION
For the foregoing reasons, Petitioners
respectfully request that the Court issue a
peremptory writ of mandate ordering Respondents to:
(1) dismiss their Actions; and (2) comply with
their mandatory duty to defend Measure E.
Dated: ____________________
SHUTE, MIHALY & WEINBERGER LLP
By:_________________________________
ROBERT S. PERLMUTTER
Attorneys for Cross-Petitioner and Defendant
LANDWATCH MONTEREY COUNTY, and Cross-Petitioners
KENNETH L. GRAY, and MARINA 2020 VISION
DECLARATION OF SERVICE
City of Marina v. Armstrong Ranch Property
Owners, et al.,
Monterey County Superior Court; Case No.
M52386
I , the undersigned, certify and declare that I
am over the age of 18 years, employed at 396 Hayes
Street in the City and County of San Francisco,
State of California, and not a party to the
above-entitled case. On May 1, 2001, I caused the
following document to be served:
PETITIONERS' OPENING MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF CROSS-PETITION FOR WRIT
OF MANDATE
by delivery of a copy of said documents to an
authorized Federal Express service carrier at San
Francisco, California for overnight delivery in a
sealed envelope addressed to the following:
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Robert R. Wellington
City Attorney for the City of Marina
Law Offices
857 Cass Street, Suite D
Monterey, CA 93940
Fax: (831) 373-7106
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Brian Finegan
60 W. Alisal Street
Suite 1
Salinas, CA 93901-2719
Fax: (831) 757-9329
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Daniel J. Curtin
Stephen L. Kostka
Marie A. Cooper
McCutchen, Doyle, Brown & Enersen
1333 N. California Blvd., Ste. 210
Walnut Creek, CA 94596-1270
Fax: (925) 975-5390
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James R. Parrinello
Marguerite Mary Leoni
Nielsen, Merksamer, Parrinello,
Mueller & Naylor, LLP
591 Redwood Highway, #4000
Mill Valley, CA 94941
Fax: (415) 388-6874
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Donald G. Hubbard
Hubbard & Hubbard, LLP
400 Camino Aguajito
Monterey, CA 93940-3596
Fax: (831) 372-1700
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I hereby certify that I am employed in the
office of a member of the Bar of this Court at
whose direction the service was made. I declare
under penalty of perjury that the foregoing is true
and correct.
Executed on May 1, 2001, at San Francisco,
California.
_______________________________
P:\MARINA\LIT\RSP018.WPD
Fran Sullivan
(1) The City's Complaint and its subsequent
cross-complaint against LandWatch are collectively
referred to herein as "the Actions."
(2) The City's Complaint and its subsequent
cross-complaint against LandWatch are collectively
referred to herein as "the Actions."
When the Council members voted that night, they
did not even have before them a complete text of
that document, because none existed. This fact, as
well as the haste with which the City acted, are
documented in the Council's own resolution
purporting to adopt the General Plan. Petition
Decl. Ex. 5 at 2-3 (stating that the General Plan
"hereby" adopted includes the draft General Plan,
as well as the following: (1) "all modifications"
made or documented by the Planning Commission on
August 10, 17, 24, 31, and September 7, 12, 14, and
21, "except as this list may have been changed by
subsequent modifications"; (2) "all modifications
shown as italicized within items nos. 8, 10, and 19
of the document entitled 'STAFF RESPONSES . . .,'
except as this list may have been changed"); (3)
"all modifications" made or initiated by the City
Council at meetings held on September 12 and 26,
and October 10, 17, 19, and 31 "except as may have
been changed"; and (4) various documents contained
in an Appendix, except as that appendix "may have
been changed") (emphasis added). Two days later,
the Council purported to ratify the General Plan
contained in these documents, as well as any
changes that "may" have been made, in yet another
Council meeting held on November 2nd. Id. Ex.
8.
(3) Indeed, as discussed in LandWatch's Motion
to Strike, all of the authority is to the contrary.
See Motion at 13-15. The sole case relied upon by
Ms. Cooper, Marblehead v. City of San Clemente, 226
Cal.App.3d 1504 (1991) (see Petition Decl. ¶
26) is not remotely applicable. There, a developer
sued the city challenging an adopted initiative
which did not contain any legislation or even
attempt to amend the General Plan directly.
Instead, the measure simply directed the City of
San Clemente to rewrite its general plan to
implement certain "concepts." The Court of Appeal
correctly held that the measure was invalid because
an initiative can only be used to adopt
legislation, and a mere directive to implement
vague "concepts" does not constitute legislation.
Id. at 1510.
Here, by contrast, Measure E contains specific
general plan policies, goals, and objectives that
indisputably constitute legislation. See DeVita v.
Napa County, 9 Cal.4th 763, 771 (1995) (upholding
similar initiative legislation). Measure E also
unquestionably directly amended the General Plan in
effect at the time that the voters approved it.
Measure E, § 2; see White Paper at 2, 5.
Finally, Measure E properly supplemented that
legislation by giving the Council implementing
authority to make additional changes to the General
Plan and other documents, as necessary. The Court
of Appeal expressly upheld this approach, and
distinguished Marblehead, in Pala Band of Mission
Indians v. Board of Supervisors, 54 Cal.App.4th
565, 574-78 (1997).
(4) This Part II.A. largely repeats the
arguments set forth in Part IV.B.1 of LandWatch's
Motion to Strike, which is presently calendered for
May 4, 2001. For the Court's convenience, LandWatch
has set forth those arguments in full here.
(5) Unless otherwise indicated, further
statutory references are to the Elections Code.
(6) This constitutionally based duty to defend
enacted initiatives is consistent with the general
duty of public officials to defend enacted
legislation. See, e.g., Deukmejian v. Brown, 29
Cal.3d 150, 158 (1981) (agreeing with a "federal
court [which] found it incongruous for an
attorney general, purporting to act for the people,
to mount 'an attack by the State upon the validity
of an enactment of its own legislature.'"); Cal.
Const. Art. III, § 3.5; 64 Op. Atty. Gen. 690
(1981).
(7) E.g., Save Stanislaus Area Farm Economy v.
County of Stanislaus, 13 Cal.App.4th 141, 149
(1993) ("SAFE") (board of supervisors has no power
to "unilaterally decide to prevent a duly qualified
initiative from being presented to the
electorate"); deBottari v. Norco City Council, 171
Cal.App.3d 1204, 1209 (1985) (same re city
council); see, e.g., Farley v. Healey, 67 Cal.2d
325, 327 (1967) (same re registrar of voters)
Billig v. Voges, 223 Cal.App.3d 962, 968-69 (1990)
(same re city clerk).
(8) Petitioners have no other adequate remedy at
law here. LandWatch's repeated written requests
that the City dismiss its Complaint and comply with
its mandatory duty to defend Measure E not only
have gone unheeded, but were in fact met with a
second lawsuit against LandWatch. Accordingly, in
the absence of a writ, the City will continue to
evade its mandatory duty to defend Measure E and to
spend taxpayer funds in contravention of that duty.
No other remedy--neither an action at law, nor an
appeal, nor further protests to the City--will
suffice to direct the City to defend the Measure.
See May, 34 Cal.2d at 133; Monterey Mechanical Co.
v. Sacramento Reg. County Sanit. Dist., 44
Cal.App.4th 1391, 1413-14 (1996).
(9) See, e.g., Deukmejian v. Brown, 29 Cal.3d
150, 159 (1981); Civil Service Comm'n v. Superior
Court, 163 Cal.App.3d 70, 75-78 (1984); Cal. Rule
of Prof. Conduct 3-600.
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