Judicial activism against the environment

A blow is struck by judicial activism on behalf of a misguided minority of landowners in a recent California Supreme Court decision overriding the majority of voters in a Santa Clara County Open Space Authority election (decision here). Worse still, this decision will make future funding of open space purchases by any California government agency more difficult, although not impossible. We at CGF participated in a "Friend of the Court" brief on behalf of the Open Space Authority, and are sorry things didn't go the right way.

The background is that California law since Proposition 13 has allowed a simple majority of voters to decrease tax rates but requires a two-thirds supermajority to increase "special taxes" (taxes not just meant for general public benefit purposes). A "special assessment," however, is different from a "special tax" in that it provides a special benefit to specific properties, and doesn't require a two-thirds vote. The entire legal battle is over what constitutes a "special assessment."

Proposition 218, passed in 1996, tightened the legal requirements for special assessments in ways that remained poorly defined (probably to keep voters from anticipating specific problems and voting against the measure). As the Supreme Court notes, Prop. 218 created a paradox whereby a "special district" must constitute all the parcels that receive a special benefit from the assessment, but it also says that if the benefit reaches every parcel in the district then it isn't a "special benefit" but rather a general benefit that needs a supermajority to pass.

The Supreme Court dealt with this paradox by saying that if parcels receive "direct advantages" from the benefit, like proximity to a park, then it's a special benefit even if conferred on all parcels in the district. So far, so good. But then the Court spends the remainder of the opinion ignoring what it just said. The Open Space Authority had justified the assessment by describing the direct advantages all parcels in the district will receive, such as better views and improved access to public recreation. The Court ignores this and says because these benefits reach everyone, they aren't special benefits and fall under Prop. 218 proscriptions.

So why would the Supreme Court behave so strangely? The likely reason is that Prop. 218 was itself a voter reaction to a previous Supreme Court ruling that allowed expansive uses of special districts. The Court is aware that initiative propositions are the only mechanisms that voters have to overrule it, so the Court felt obligated to overreact to the Open Space Authority's special assessment, something that resembled a standard property assessment.

Short of changing Propositions 218 or 13, this decision is the last word on this issue, and an assessment like the Open Space Authority's will require a two-thirds supermajority. However, somewhat different special assessments may still be possible. An assessment that set up a priority acquisition area and assessed more in the immediate vicinity of that area than far away from there, or assessed more when an acquisition is first made, might still be legal. This is something that will have to be tested in the future.

-Brian

Government as prosecutor versus government as defendant

As an attorney, I have to do Continuing Legal Education to keep my Bar membership, so I've been listening to audio CDs about environmental trial advocacy education. They consist mostly of dialog between attorneys who are government prosecutors for environmental crimes and attorneys who represent environmental crime defendants.

What struck me as in interesting was the main prosecuting attorney's advice to opposing counsel to be cooperative, not to use a scorched-earth legal strategy, to admit fault where fault occurred and to work to fix the problem. He argued that defendants get much better results than fighting with everything they've got.

This struck me because my experience is that the government doesn't follow its own advice when it's the defendant. I've been involved in lawsuits against the government as an attorney and as a client staff member here at CGF. While there are exceptions, the usual government response has been to fight the legal battle and let the court force them to take a decision rather than reach a compromise settlement.

Maybe it's unsurprising that the government doesn't follow its own advice. But then the lecturer who was an attorney representing defendants spoke, and she agreed with the prosecutor, telling her fellow attorneys that they're much better off striking a deal than they are fighting.

Maybe that just reflects relative power positions - the government doesn't need to compromise when mere citizen groups sue it, but corporations do need to compromise when the government sues it. But then, the government prosecutor brought up the scenario of citizen groups suing corporations, and again advised defense attorneys to compromise with citizen groups.

So, all the advice seems to say that when the government has a bad case, it should compromise. So far I've seen little sign that they take their own advice, a result that's bad for the environment and just costs taxpayer money. Let's hope that changes.

-Brian