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Administration of Justice
For more information, please contact Elizabeth Howard at 916/650-8131 or ehoward@counties.org or Rosemary Lamb at 916/650-8116 or rlamb@counties.org.
Restrictive Covenants
AB 985 (De La Torre) – Request for Comment
As Amended on June 9, 2009
AB 985, by Assembly Member Hector De La Torre, has been significantly amended to address the issue of unlawful restrictions — based on race, color, religion, family status, and national origin, among others — contained in a property’s covenants, conditions and restrictions (CC&Rs). As counties may recall, Assembly Member De La Torre pursued a measure last year (AB 2204) that would have required a comprehensive review and modification of CC&Rs on properties built prior to a specified date, which contemplated significant new duties for the assessor, recorder, and county counsel. Counties raised opposition based strictly on fiscal grounds; the bill ultimately was held in the Senate Appropriations Committee.
AB 985 takes a different approach to eliminating discriminatory language from CC&Rs. As amended on June 9, the measure would expand the current process by which the property owner can request a modification to restrictive covenants by giving a title or escrow company, real estate broker or agent, or any other person the ability to make such a request. The measure would also impose notification requirements on the recorder when modification requests are made and subsequent action is taken.
AB 985 also creates a mechanism similar to that which was created pursuant to AB 1168 (Jones, 2007), relative to redaction of Social Security numbers. Under the provisions of AB 985, the county recorder would be required to create a “public” record (i.e., modified to redact the discriminatory CC&R language) and an untouched, “official” record. Only the public record would be disclosed to the public; the official record would only be released pursuant to a subpoena or court order. Finally, AB 985 would give county boards of supervisors the authority — but not the requirement — to impose an as-yet-unspecified fee for the recording of the first page of every instrument and paper for purposes of supporting the activities associated with creation of a public and official version of the record.
CSAC has been working with the author’s office and other stakeholders, making clear our position that the fee must cover the full range of county costs contemplated by this measure. We are hopeful that amendments currently being considered will be able to address our overarching concern that it will be difficult to calibrate a fee to an unknown and unpredictable volume of requests. We will continue to advise counties as to the evolution of this measure and, in the meantime, urge counties to examine the provisions of AB 985 as soon as is practical and identify workload and cost impacts. The bill is set for hearing in the Senate Appropriations Committee on July 6.
Attorney’s Fees in Anti-SLAPP Actions
SB 786 (Yee) – Oppose
As Amended on May 20, 2009
As reported in a previous Bulletin, SB 786, by Senator Leland Yee, would prohibit the awarding of attorney’s fees in certain anti-SLAPP (Strategic Litigation against Public Participation) actions. Specifically, the measure would bar a prevailing defendant from being awarded attorney’s fees in any anti-SLAAP claim in which the underlying litigation arose from an action under the Brown Act, Public Records Act (PRA), or Bagley Keene Act. CSAC remains opposed to this measure, as amended.
The measure was recently amended in committee to clarify that public entities would still be entitled to attorney’s fees when the underlying cause was deemed frivolous — which is the same standard that exists under the Brown Act, PRA, or Bagley Keene Act.
Despite public agency opposition, SB 786 passed the Assembly Judiciary Committee on June 23 on a 9-1 vote. It is now awaits consideration by the full the Assembly.
Remote Caller Bingo
SB 126 (Cedillo) – Request for Comment
As Amended on June 18, 2009
SB 126, by Senator Gil Cedillo, is a technical clean-up measure to his measure, SB 1369, from last year that authorized remote caller bingo. Remote caller bingo allows multiple sites to engage in the same bingo game without all participants being in the originating bingo site – where the bingo letters and numbers are being called. This type of bingo allows the winnings to be larger than the current $250 single bingo game earnings, thereby expanding the attraction to remote caller bingo and allowing charities to generate additional revenue from increased bingo participation. The Association of Nonprofits and Charities First is the sponsor of this measure.
The June 18 amendments to the measure are cause for serious concern for local governments as they seek to establish a process whereby a charity is authorized to engage in remote caller bingo — unless a local ordinance currently exists banning such bingo or a county subsequently passes a resolution banning such bingo — until January 1, 2011. After January 1, 2011, a city and/or county would need to adopt an ordinance authorizing remote caller bingo in order for it to continue. This approach effectively would create a situation where a county might have to pass an ordinance if it wished to ban remote caller bingo after remote caller bingo was already established in the community.
It is our belief that the measure should maintain local control and allow remote caller bingo only after an ordinance is adopted by the local county board of supervisors or city council. In other words, it should contain an opt-in clause rather than a retroactive opt-out clause as it does in its current form. While it appears upon speaking with the author’s staff that the intent of the measure is not to usurp local control, CSAC regards this measure as precedent setting by permitting the state to implement blanket statewide ordinances (that to date have been under the purview of local governments) — where ordinances may not currently exist — that will require oversight and resources of local government. Furthermore, it sets a precedent by allowing the state to permit an entity to engage in an activity that to date has been regulated at the local level and occurs only after a vote of a city or county’s locally elected body.
CSAC and the League of California Cities together are working with Senator Cedillo’s office, as well as with the sponsors of the measure, to craft language that permits charities to utilize remote caller bingo as a revenue-generating tool upon adoption of a local ordinance. CSAC would like counties to review the measure and provide feedback as soon as is practical to Rosemary Lamb at rlamb@counties.org.
SB 126 is set for hearing in the Assembly Governmental Organization Committee on July 8.
California Department of Corrections and Rehabilitation (CDCR) Rejects Tentative Agreement with Prison Medical Receiver
State’s Fiscal Condition Cited as Rationale for Rejection
On June 24, CDCR Secretary Matthew Cate addressed a letter to the federally appointed Prison Medical Receiver, Clark Kelso, explaining that, due to the unprecedented fiscal crisis, the state is not able to consummate a tentatively reached agreement on prison healthcare. As counties may recall, the federal receiver and Corrections Secretary Matthew Cate announced last month that they had reached tentative agreement on a memorandum of understanding (MOU) that would have dramatically scaled back the Receiver’s original plan to address the state prison system’s health care needs. Rather than pursue a much larger-scale construction program with an $8 billion price tag, the new approach envisioned building two new long-term health care facilities to house 3,400 inmates. The tentative MOU would have sought $1.9 billion in funding from the California Infrastructure and Economic Development Bank (I-Bank) for correctional healthcare.
Secretary Cate’s letter, however, indicates that the state cannot afford to assume any additional debt at the present time, given the fiscal crisis. The Secretary commits to continuing to work with the receiver and his staff towards addressing the state’s prison healthcare needs, but cites several new developments — in addition to the state’s budget deficit — that forced the state to rethink the previously negotiated agreement. Among these new considerations: the range of correction reform proposals on the table that could potentially impact prison population and the need for medical construction, as well as the recent disposition in the state’s favor of litigation that had challenged the validity of AB 900 lease revenue bonds as a mechanism to fund state and local correctional construction. CDCR’s press release on its decision not to enter in to the MOU, as well as a copy of the Secretary Cate’s letter, can be found here.
The federal court with jurisdiction over the Receivership suggested earlier this month that the state would have three months to develop an alternative plan if it rejected the initial prison healthcare agreement. U.S. District Court Judge Lawrence Karlton indicated that unless the state presents a plan with “real money,” then he would “start eating into their budget in a real dramatic way." With the state’s most recent action, it could be setting the stage for a showdown of sorts in the U.S. Supreme Court, given that the Administration has promised to fight efforts to force a release of funds to address prison health care needs. CSAC will keep counties apprised of this issue as it unfolds.
PRINTER-FRIENDLY VERSION
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