JONES & MAYER NEWSLETTER Providing Advice and Representation to Public Entities and California’s Law Enforcement Agencies

Table Of Contents I. MEDICAL MARIJUANA CONTINUES TO CREATE PROBLEMS By Martin J. Mayer, Esq. II. RESIDENTIAL RECEIVERSHIPS By Paul R. Coble, Esq. III. AB 1234 - ETHICS TRAINING REQUIREMENTS By Christian L. Bettenhausen IV. PRISON LITIGATION (COLEMAN/PLATA) By Ivy M. Tsai, Esq. and Martin J. Mayer, Esq.

ATTORNEY SPOTLIGHT • Gregory P. Palmer has been appointed as State Chair of the CPOA Police Legal Advisers Committee. FIRM ANNOUNCEMENT • We are pleased to announce that our firm is working together with the law firm of Cota, Duncan & Cole as Plumas County Counsel. ADDITIONS TO THE FIRM • Christopher F. Neumeyer, Esq • Jamaar M. Boyd-Weatherby, Esq.

I.MEDICAL MARIJUANA CONTINUES TO CREATE PROBLEMS

By: Martin J. Mayer, Esq.

Since the passage of Proposition 215, known as the Compassionate Use Act and the implementation of SB 420 creating the Medical Marijuana Program, the State of California has confronted numerous problems arising out of the cultivation, use and possession of the drug.  Law enforcement has been placed in an untenable position since the federal law still declares marijuana an illegal drug and doesn’t recognize any medical exception to its prohibition.  Officers are now frequently confronted with criminal activity arising out of, and because of, the cultivation and/or sale of marijuana, allegedly for medical use.  Following are just a few situations which reflect those problems.

Marijuana “Grows”

Law enforcement officials in Arcata, California have reported serious problems arising from the proliferation of “grow houses” in their community.  In a newspaper article published on May 30, 2008, the Arcata Chief of Police, Randy Mendosa, stated that entire houses are being used for indoor growing of marijuana and it is estimated that as many as 1,000 of the 7,500 homes in the city are being so used.  It is pointed out that such use removes houses from the market and, more importantly, creates building and health hazards.  For example, homes become infested with mold, as a result of turning them into grow houses.  The Chief noted that the “going rate (for the marijuana) is $3,000 a pound (wholesale) and they are selling it and making a huge amount of money.”  Additionally, it has resulted in thieves coming into the community in order to steal the drug, often through home invasion robberies.

Last year, in Butte County, California, deputy sheriffs came upon a large outdoor area with marijuana growing, which substantially exceeded the amount of marijuana permitted under state law to be grown by a “primary caregiver.”  The deputies required the destruction of the excessive plants and, subsequently, the grower sued the county for the lost value of those plants.  A superior court judge ruled in favor of the drug grower and ordered Butte County to reimburse him for his financial loss, even though the amount he was cultivating violated California law and is considered to be a felony under federal law.  The county has appealed that ruling to the Court of Appeal and Jones & Mayer has filed an amicus curiae brief from the California State Sheriffs Association (CSSA), the California Police Chiefs Association (CPCA), and the California Peace Officers Association (CPOA), supporting Butte County.

Dispensaries

On May 27, 2008 Virgil Grant, owner of six Los Angeles based medical marijuana dispensaries, was arrested by federal agents and charged with violating the federal Controlled Substances Act.  An investigation was started last       December, after a vehicle accident caused the death of the driver of a parked SUV and paralyzed a California Highway Patrol officer.  The motorist who caused the accident was, allegedly, under the influence of marijuana he said he had obtained at the Holistic Caregivers facility in Compton, one of the six owned by Grant.  Following the accident, Drug Enforcement Agents were able to make numerous undercover buys with a doctor’s recommendation, even though none of the ailments constituted serious medical conditions – a requirement of California’s law.

Recently, the City of Anaheim passed an ordinance prohibiting medical marijuana dispensaries from opening in the city, based on the fact that dispensaries (which are profit making ventures) are not permitted under California’s Compassionate Use Act (CUA), as well as under federal law.  The dispensary owners sued the city (Qualified Patients Association v. City of Anaheim) and a superior court judge upheld the city’s ban, agreeing that dispensaries are in violation of both state and federal law.  The dispensary owners have now petitioned the California Court of Appeal for review of the lower court’s ruling and Jones & Mayer will, once again, file an amicus brief from CSSA, CPCA and CPOA, this time supporting a city’s right to prohibit a commercial business from operating within the city when it violates the law.

How Much is Lawful?

Finally, also in May, the 2nd District Court of Appeal, in People v. Kelly, reversed the conviction of a man caught with 12 ounces of dried marijuana, in addition to cannabis plants, who claimed he was in possession of the drug for medical purposes.  He had a doctor’s recommendation but the CUA limits the amount of marijuana one can “lawfully” possess for medical purposes to 8 ounces of dried marijuana, unless the doctor recommend more and, in this case, he did not. However, the Court of Appeal ruled that the limit established by the CUA was unconstitutional since the legislature amended the CUA, which was an initiative, without the approval of the voters.  The CUA did not set a limit on the amount of marijuana a “patient” can possess and the legislature could not usurp the will of the people by imposing such a limit without the consent of the people.

What Next?

These are just a few of the situations created as a result of very poorly drafted language.  The purpose of the initiative was to create an exception which would allow seriously ill persons to use, posses, and cultivate marijuana if they have a doctor’s recommendation.  Unfortunately, the concept, even if one agrees with it, has been abused and is so inadequately defined that it is difficult, if not impossible, to ensure that it is carried out as the people wished.  In addition, as long as the federal law remains as it is, California’s law creates a horrendous problem for its peace officers.  How can they obey one set of laws while another set calls on them to do something different?  These examples are just that – examples – and many more exist and will continue to develop.

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II. RESIDENTIAL RECEIVERSHIPS - A Valuable Adjunct To Effective Code Enforcement

By: Paul R. Coble, Esq.

While traditional code enforcement is appropriate to remedying typical problems of property maintenance, there can arise circumstances where the ultimate objective of code compliance is facilitated through seeking appointment of a receiver in addition to pursuit of a criminal prosecution.  This article will illustrate one such case in which this dual approach of criminal prosecution and civil appointment of a receiver was used to address a particularly problematic property.(1)

Municipal code enforcement programs typically focus on bringing relatively minor violations into compliance before the condition exacerbates into larger, more problematic issues of neighborhood blight, declines in property values and a rise in the incidence of more serious crime.(2)  In this model, violations come to the attention of code enforcement staff, property owners are given notice of the violation(s) and, within a reasonable period of time, most violations are self-corrected by the owner.  In a distinct minority of cases, referral is made to a city prosecutor when voluntary compliance is not attained.  If compliance is still not attained through voluntary means, the city prosecutor may then file criminal charges in a further effort to attain the objective of compliance.

This model works well in the vast majority of cases, and cities with earnest code enforcement programs, backed up by effective prosecutorial support, have been able to hold the line against urban blight and the range of sociological and economic problems which flow from blighted conditions. 

Yet this approach may not be effective in confronting truly blighted properties which have deteriorated to a state of genuine hazards to health and safety.  It is in confronting these truly problem properties, and property owners, that use of Health & Safety Code receiverships can be an effective adjunct to vigorous code enforcement.

Our office recently confronted just such a property and property owners of an apartment building.  This property had a history of code violations which would be brought into minimal compliance, only to fall out of compliance in relatively short order.  The policy decision was finally made, in consultation with city staff, not to forego criminal prosecution of the current violations, even if the violations were corrected, as it was apparent that lasting and meaningful correction of the violations, and maintenance of the property in a compliant condition for any extended period of time, was going to require the supervision of the courts through an extended period of criminal probation.

Based on an inspection under a warrant issued pursuant to CCP §1822.50, some 400 violations were discovered.  These were condensed down to forty counts in the criminal complaint, each count being comprised of multiple violations of the ordinance charged in that count.  However, as prosecution moved forward, there arose substantial – indeed, horrendous – problems with leaking of raw sewage into and on the property, culminating in the discovery of one apartment unit with more than four inches of standing raw and untreated human waste, which in turn had soaked through the common walls, thereby spreading the contamination to the adjoining units.  This was the proverbial straw that broke the camel’s back.

While continuing forward with the criminal prosecution (and adding two more counts to the criminal complaint to address the sewage contamination), we also commenced an application under Health & Safety Code §§ 17960, 17980, 17980.1, 17980.6, 17980.7 and 17982 for the appointment of a receiver.(3)  Although the Superior Court Judge before whom we brought the application was initially taken aback by the volume of material he was being asked to read, and therefore declined to appoint the receiver at the first court appearance, within ten days time he was more than convinced of the need, and issued an order appointing a receiver for the entire property.

The result at this writing is that we have taken guilty pleas from all four property owners (two husbands and two wives) on six of the more egregious violations.  The Court imposed fines totally nearly $20,000, and $4,000 restitution to the City, together with three-years summary probation.  In the meantime, the receiver has control of the apartment building, including receipt of all rents, and is well along to lasting correction of the substandard and unsafe conditions on this property.  Once the receiver is discharged, the owners will all still have a substantial period of criminal probation, and will be under the informal supervision of the court should any further violations arise and not be immediately corrected.  A condition of probation includes the right of city staff to warrantless inspection of the property on 24 hours notice.

We believe that this case, and others we are currently pursuing for client cities, serves as an example of the additional pressure which can be exerted upon recalcitrant owners of unsafe housing to bring the property into lasting compliance through a combination of criminal prosecution and appointment of a receiver.  It is our firm expectation that this property will be restored to a healthful and safe  condition, adding to the availability of decent and affordable housing in this city. And it is based on this experience that we commend to California cities the dual approach of criminal prosecution and application for appointment of a receiver when confronted with unsafe, hazardous and blighted properties which have not proven amenable to correction through traditional code enforcement practices.

For further information on this process, and if we may be of any assistance, please contact Paul R. Coble or Elena Q. Gerli at 714-446-1400, or by email at, respectively, prc@jones-mayer.com or eqg@jones-mayer.com.

(1) Readers are encouraged to consider those circumstances, too, where appointment of a receiver in lieu of criminal prosecution may be appropriate, i.e., the owner is deceased and the property has not yet been probated, the owner is incapacitated, the owner is beyond the reach of the court’s jurisdiction, etc.

(2) See, e.g., Broken Windows by James Q. Wilson and Georg e L. Kelling, The Atlantic Monthly, March 1982.

(3) This application was preceded by a Notice to Abate, and exhaustion by the property owners of their right to appeal to that City’s Planning Commission.  When the condition remained uncorrected, the application for appointment of receiver followed.

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III. Update on AB1234 Ethics Training Requirement ACT

On January 1, 2006, AB 1234 went into effect. Among other things, the bill mandated that public officials meet certain ethics training requirements every two years. The following is a brief summary of those requirements.

AB 1234 states that if a city provides any type of compensation or reimbursement to a member of a body, board or commission subject to the Brown Act, then all local agency officials that receive any kind of compensation or reimbursement in the city are required to receive at least two hours of ethics training every two years. Cal. Govt. Code § 53235(a).

Public officials who were already in office on January 1, 2006, were required to obtain their first two hours of training on or before January 1,2007. They are then required to repeat the training every two years thereafter. Cal. Govt. Code § 53235.1(a). Since it has now been two years since AB 1234 first went into effect, a number of public officials will need to complete two hours of ethics training this year.

Officials who entered office after January 1, 2006, have one year from the date they commenced service to complete their first two hours of training. Those officials must then repeat the training every two years thereafter. Cal. Govt. Code § 53235.1 (b).

Following the completion of each training, public officials must be given a certificate to verify their participation. Cal. Govt. Code § 53235(e). Copies of those certificates should be given to the city clerk. The city is required to maintain records verifying the dates when training occurred and the entity that provided the training. Those documents will be considered public records subject to disclosure for a period of five years. Cal. Govt. Code § 53235.2.

As for when and how the training will be provided, local agencies are required to provide their officials with a list of options to satisfy the requirement at least once a year. The training can occur in-person, online or on a self-study basis. Cal. Govt. Code § 53235(d)(f). For your convenience, our firm has developed a course which meets all of the statutory requirements. We will be providing training for the cities we represent as city attorney. Please check with the city clerk's office to determine the next available dates, times and locations. The firm is also available to conduct trainings for other interested public agencies. Officials may also choose to receive training from the League of California Cities, or other authorized providers. Just be sure to obtain the required proof of participation and provide a copy to the city clerk.

One final note, if an official serves on multiple bodies, boards or commissions, the official only needs to complete the training one time to satisfy the statutory requirement. Cal. Govt. Code § 53235.1(c).

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IV. PRISON LITIGATION (COLEMAN/PLATA)

By Ivy M. Tsai, Esq. and Martin J. Mayer, Esq.

Much has happened since our last update on the prisoner release litigation (Coleman v. Schwarzenegger/Plata v. Schwarzenegger). On February 8, 2008, the Three-Judge Court issued an order granting in part Intervenors’ motion for reconsideration, allowing Intervenors to participate in all stages of the proceedings and vacating its earlier order bifurcating the proceedings.

Since the Three-Judge Court’s order, we have had to review nearly one million (1,000,000) documents provided to us by the Plaintiffs and Defendant; respond to discovery demands served upon each of our Sheriff Intervenors; generate our own discovery demands; review and analyze all depositions previously taken ofthe plaintiff's experts; review and summarize all previously propounded discovery, review the reports of the special master and receiver in both the Coleman and Plata cases and begin to prepare our case on the issues of alternatives to a release order and local impacts.We have been fortunate that the District Attorney Intervenors have been great collaborators in getting up to speed.

A status conference was recently held on May 30, 2008. Following the status conference, the Court issued an order staying discovery until June 30th, with certain exceptions, and setting trial to begin on November 17, 2008, absent any settlement. The Court ordered the parties to file a joint status conference statement on or before June 9, 2008 and set another status conference for June 27, 2008.

We have been very actively engaged in settlement negotiations led by Justice Elwood Lui, the Settlement Referee, and Justice Peter Siggins, the Settlement Consultant.A settlement proposal has been prepared and is currently undergoing review and comment by the parties.Previously, all settlement negotiations were confidential.However, at the status conference on May 30, 2008, Justice Lui requested that the settlement proposal be made public.Following the hearing, the Court issued an order unsealing the settlement status report filed on May 27th and ordered that the next draft of the settlement proposal should be public.The status report and the settlement proposal, revised June 2, 2008, is now available on the Northern District of California website (http://www.cand.uscourts.gov/).

During this discovery stay period, we are focusing our efforts on reaching a settlement and making sure the concerns of local law enforcement are heard and their interests reflected in the settlement proposal. We will continue to keep you posted.

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ADDITIONS TO THE FIRM

CHRISTOPHER F. NEUMEYER, ESQ.

Christopher F. Neumeyer has been an associate with the law offices of Jones & Mayer since 2007.  His areas of practice include litigation, municipal law, transactional law and land use.

Mr. Neumeyer received his J.D. from Georgetown University Law Center in 2007 and his B.A. in political science from UC Berkeley.

Mr. Neumeyer specializes in litigation, including cases involving tort liability, contract disputes, and state and federal civil rights.  He counsels our municipal, public agency and law enforcement clients on their respective powers, duties, liabilities and authority under state, local and federal law; reviews and drafts covenants, easements, contracts and agreements; provides advice on land use issues and zoning matters; conducts personnel investigations; and revises and drafts municipal ordinances.

He has co-authored an article for the magazine of the California Peace Officers’ Association analyzing the impact of the important federal court decision in Lanier v. City of Woodburn,518 F.3d 1147 (9th Cir. Or. 2008), concerning constitutional limitations on state action mandated by the Fourth Amendment.

Mr. Neumeyer coordinates Jones & Mayer’s pro bono program which provides free legal assistance to clients of the La Habra Family Resource Center and the Santa Ana Public Law Center.

While at Georgetown, Mr. Neumeyer interned at the District of Columbia Superior Court for the Honorable Judge Carol A. Dalton.  He also co-founded the Georgetown Law School Chess Club and wrote a weekly column for the Georgetown Law Weekly.

JAMAAR M. BOYD-WEATHERBY, ESQ.

Jamaar M. Boyd-Weatherby has been an associate with the law offices of Jones and Mayer since June of 2008.  His areas of practice include litigation, municipal law, police litigation, employment law, and Pitchess motions.

Mr. Boyd-Weatherby received his J.D. from University of California-Berkeley
(Boalt Hall) in 2003 and his B.A. in philosophy from Cal Poly-Pomona in 2000.

Mr. Boyd-Weatherby specializes in litigation, including cases involving tort liability, contract disputes, employment law, and state and federal civil rights.  He also serves as Deputy City Prosecutor.  His primary duties include municipal code enforcement, prosecution of municipal code violations, and prosecution of massage and chiropractic parlor license violations.  Mr. Boyd-Weatherby also works on police litigation, Pitchess motions, internal investigation, and appeals.

Prior to joining Jones & Mayer, Mr. Boyd-Weatherby was a Deputy Orange County Public Defender.  Mr. Boyd handled misdemeanor and felony cases at West Court, North Court, and the Lamoreaux Justice Center.  While at the Public Defender’s Office, Mr. Boyd-Weatherby had 30 jury trials.  He also worked as an associate at Proskauer Rose, LLP in Century City.  At Proskauer, Mr. Boyd-Weatherby worked in the litigation group where he primarily worked on entertainment litigation, securities litigation, and white collar criminal defense.

While at Boalt Hall, Mr. Boyd-Weatherby served as the Senior Articles editor for Berkeley Journal of African-American Law and Policy Report (formally known as the “African-American Law and Policy Report”).  He interned in the Housing Unit of the East Bay Community Law Center (“EBCLC”).  He also worked as a manager for the Cal Women’s Basketball team.

At Cal Poly, he served as an intern for Superior Court Judge Dukes and Judge Oki.  Mr. Boyd-Weatherby played for the Men’s Basketball team.  He was the president of the Philosophy Club, president of the Student Alumni Association, and he competed on the Model United Nations team.

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ATTORNEY SPOTLIGHT