William Guthrie, San Bernardino City Attorney

William R. Guthrie was the San Bernardino City Attorney from 1913 to 1927, and 1931 until 1935.  He was also the founder of what today is Gresham Savage (from their website http://www.greshamsavage.com/firm-100years.html):

The Gresham Savage story begins in 1910, when founder William Guthrie opened his solo practice in San Bernardino, Calif. Like the rest of the country, the city was in transition, shedding its image as a rough-and-ready saloon town where shootouts and public hangings were commonplace. During the first 20 years of the new century, as Santa Fe locomotives brought thousands of new settlers down the Cajon Pass, the city tripled in size and grew in respectability and importance.

Guthrie served as city attorney for 12 years, gaining valuable experience in industry, mining, tax valuation and assessments. He became an influential figure in business, political and social circles and was an imposing local presence, strolling the streets of San Bernardino in his distinctive white hat.

His reputation for getting results grew rapidly, catching the attention of large corporations, including the Southern Pacific Railroad, California Portland Cement Company, still a Gresham Savage client, and American Potash & Chemical Co., now Searles Valley Minerals, also still with the firm. Later in Guthrie’s career, Henry Kaiser hired him to handle the legal affairs of Kaiser’s new Fontana Steel Mill.

. . .

By the economic crash of 1929, Guthrie had moved into San Bernardino’s new Andreson Building, which still stands today. Throughout the Depression, he continued serving major corporations, including the Atchison, Topeka and Santa Fe Railway, now the BNSF Railway Company and the longest-standing current Gresham Savage client, Southern California Edison and the predecessor to General Telephone, which is now Verizon.

As the country struggled through those difficult years, Guthrie expanded his practice, bringing on Carl B. Hilliard, Donald W. Jordan, John B. Lonergan and Jesse W. Curtis Jr. In 1937, he formed a partnership with Curtis, whose father had been a pioneer San Bernardino County lawyer, Superior Court judge and Supreme Court justice.

. . .

Now as Guthrie & Curtis, the firm prospered during World War II, serving heavy industry companies such as Kaiser Steel and California Portland Cement Company, whose successors remain clients of the firm. These were precedent-setting times, requiring attorneys of strong character and high intellect to properly interpret complex laws dealing with local and regional government regulations. Guthrie would often convene the area’s captains of industry at a local restaurant or meeting place to discuss the important legal and political issues of the day.

. . .

After Curtis left the firm in 1947, Guthrie, Lonergan and Jordan established a legendary partnership that was to be unmatched at handling legal matters involving labor, public land and mining. “New Law Firm Formed in City,” trumpeted the headline in the local newspaper, describing Guthrie as “long one of the outstanding figures” of the county’s bar.

Sadly, failing health forced Guthrie to retire soon after, but not a single client left the firm as Lonergan and Jordan took up the challenge of moving on without the legendary founding attorney. Though practicing in a small-town geographically, they were widely regarded as big-city professionals, expanding the practice even further and attracting multinational corporations as clients.

William Guthrie was born in San Bernardino on November 1, 1886 to William James Guthrie and Anna B. Lawson (Guthrie).  In 1900, he lived with his parents at 472 West Fourth Street in the Second Ward.  His father was listed as a Dry Goods Merchant on the 1900 Census.

By the next Census, he was the head of household as his mother was listed as widowed.  They were living at 626 North E Street in the Second Ward.  William Guthrie was listed as a Deputy County Clerk and as a lawyer. The State Bar of California gives his State Bar number of 3059, and says he was admitted in January 1910. The Census was taken on April 16-18, 2010, so he had just passed the Bar.  His brother, James Guthrie, was already listed as a newspaper reporter (he was later the publisher of the Sun).

In 1910, William Guthrie lived not far from Charles L. Allison (491 West Fourth Street).  Charles Allison was elected City Attorney in 1911, and was defeated by William Guthrie in 1913.  In the 1910-1911 San Bernardino City Directory, Gutherie’s address is listed as 527 E Street, and he is listed as Chief Deputy County Clerk. By the 1911-1912 listing, he is living at 626 North E Street with his brothers, and is listed as a lawyer with Willis & Guthrie.

According to the Minutes of the Mayor and Common Council dated March 20, 1913, he received the following votes in the Primary Municipal Election: In the Republican Primary, 389 votes; in the Democratic Primary, 97 votes; in the Socialist Primary, 10 votes; and the Prohibition Primary, 6 votes.

In the minutes of the Mayor and Common Council Meeting of April 16, 1913, William Guthrie received the following votes in the April 14, 1913 General Municipal Election, 1432 votes over the Socialist candidate J.W. Stephenson’s 823 votes and H.H. Chase received 918 votes.

By the time of the 1913-1914 City Directory, William Guthrie is listed as Attorney and City Attorney, Room 413 of the Katz Building, telephone HOme [sic] 1141, and still living at 646 D Street.  By the 1916 City Directory, he had moved his residence to 939 D Street.

He ran for re-election on April 12, 1915, and gained 2704 votes to his opponent, Cecil H. Phillips’ 1987 votes.

On June 5, 1917, on his draft card, William Guthrie listed his residence as 939 (North) D street, and his occupation as City Attorney, and employed by the City of San Bernardino. He claimed exemptions for supporting his wife and as a City officer.

William Guthrie again ran in the 1919 primary and general elections.  In the primary municipal election, he ran against Fred A. Wilson for the first time.  Guthrie received 2144 votes, Fred A. Wilson received 1170 votes, and Frank T. Bates received  631 votes.

In 1920, he lived at 1151 North D Street with his wife Mary, and he is listed as a general practice attorney.  The City Attorney position at that time was part-time.  It did not become full time until a Charter section 55 was amended in a special election on January 6, 1955.

William Guthrie ran unopposed in the 1923 election.

By 1924, the San Bernardino Directory lists him as City Attorney, with his office at 205-210 Katz Building, and his residence as 1151 North D Street.

In the March 1927 primary election, Guthrie defeated Fred A. Wilson.  Fred A. Wilson was a San Bernardino attorney, State Bar Number 7329 admitted in September 1911.  However, in the 1927 general primary election, Fred A. Wilson won.

By 1928, his office was at 506 Andreson Building, 320 North E, and his home was still at 1151 North D Street.

In 1930, he still lived at 1151 N. D Street with his wife Mary and daughter Elizabeth.  Their home was listed as valued at $12,000.  His occupation is lawyer (owns office).

William Guthrie ran for City attorney again in 1931, beating City Attorney Fred A. Wilson in the General Election by a vote of 4,180 to 3,543.

In the April 8, 1935 General Municipal Election, H.R. Griffin defeated William Guthrie in a close race. H.R. Griffin, received 4,508 votes, and Guthrie received 4,040 votes.  Theo G. Krumm received 889 votes.

By 1940, he was living at 356 West 18th Street.  He was listed as a lawyer in his own private practice.  He lived with his wife Mary, his daughter Elizabeth, and a young man named Felix Flint, who was their “hired yard man.”

William Guthrie died on November 2, 1947 at St. Vincent’s Hospital in Los Angeles, California.

His obituary in the Los Angeles Times of November 4, 1947 read:

William Guthrie, San Bernardino Attorney, Dies

William Guthrie, 61, San Bernardino attorney, died at St. Vincent’s Hospital Sunday night of a lung infection.  In failing health since September, he was brought here from his home last Tuesday to undergo treatment by specialists.

A native of San Bernardino, Mr. Guthrie was admitted to the California Bar 35 years ago. He prepared himself for his bar examination by studying law in his after-office hours while he was employed as a deputy county clerk.  He served as City Attorney of San Bernardino for 12 years.

Mr. Guthrie was known as an authority on corporation law. His clients included many of the industrial corporations of the State. He practiced frequently in Los Angeles courts, and was a member of the California, University and Jonathan clubs here.

He leaves his widow, Mrs. Mary D. Guthrie, a daughter, Mrs. Elizabeth Goss, Claremont, and two brothers, James A. Guthrie, publisher and editor of the San Bernardino Sun, and Howard M. Guthrie, San Bernardino businessman.

Copyright 2013 Michael Reiter, Attorney at Law
Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

The Myth about Car Dealer Sales Tax in California.

By Michael Reiter, Attorney at Law

You often hear people talking about how car dealers bring sales tax revenue to cities from the sale of vehicles.  While there is some truth to it, there are special rules for the allocation of a portion of the tax that discourages shoppers from choosing an out-of-town retailer with a lower sales tax rate.

Further, Government Code section 53084 has discouraged local entities from providing financial assistance, including sales tax rebates to car dealers and big box retailers that are in another jurisdiction: “. . . a local agency shall not provide any form of financial assistance to a vehicle dealer or big box retailer, or a business entity that sells or leases land to a vehicle dealer or big box retailer, that is relocating from the territorial jurisdiction of one local agency to the territorial jurisdiction of another local agency but within the same market area.”

Further, people think that all the sales tax revenue goes to a local agency, when just a portion of the sales tax goes to a local entity.  Of the 7.5 percent base rate in California, the Board of Equalization states:

“Local Tax” is the general term for sales and use taxes imposed under the Bradley-Burns Uniform Sales and Use Tax Law. The basic statewide sales and use tax rate is 7.50% and is divided as follows:

  • 6.50% State

  • 0.75% Local Jurisdiction (City or county of place of sale or use)

  • 0.25% Local Transportation Fund (County of place of sale or use) [Emphasis added]

In addition to the “Local Tax,” many California local entities have special taxing districts which impose a sales and use tax by adding to the current 7.5 percent.  In the California Board of Equalization Publication 34, dated January 2013, entitled Motor Vehicle Dealers, Pages 28-29:

If you sell or lease a vehicle to a customer who registers the vehicle in a special tax district, you are considered “engaged in business” in the district. As a result, you must report and pay the applicable special district tax.
Examples:
You are located in Alameda County, where there are three districts, each funded by a 0.50 percent rate. You sell or lease a vehicle to a customer who will register the vehicle in the same county. You report and pay the standard statewide rate of 7.50 percent plus 1.50 percent for the three special tax districts in effect in the county, for a total rate of 9.00 percent.
You are located in Los Angeles County and sell a vehicle that will be registered in Kings County, where there are no special tax districts. You report and pay only the statewide rate of 7.50 percent.
You are located in Kern County and sell a vehicle that will be registered in Alameda County, where there are three special tax districts. As with the first example, you will report and pay tax at the total rate of 9.00 percent (the standard statewide rate of 7.50 percent plus 1.50 percent for the three districts).

Leases are a little different.  Revenue and Taxation Code section 7205.1 says that a California lessor, other than a new motor vehicle dealer or a leasing company, for a lease exceeding four months, the local tax is allocated from the California dealer’s sales location.

Certainly, even without certain sales tax revenue on sales, vehicle dealers are attractive to local California entities because they provide jobs, services for residents, and both local and special district taxes on parts, for example.  However, since motor vehicles are big ticket items, people mistakenly think that the special district taxes are based on the location of the dealer, when in California it is based on registration.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

When Does the Brown Act Allow A Council or Board To Meet Outside the Jurisdiction?

By Michael Reiter, Attorney at Law

The Ralph M. Brown Act codified at Government Code section 54950 et seq., California’s open meeting law gives the public the opportunity to know what their elected officials are doing, and requires their meetings to be open and public.

When does the Brown Act allow a Council or Board to meet outside their jurisdiction?

Generally, the Brown Act does not allow legislative bodies to meet outside their jurisdiction “Regular and special meetings of the legislative body shall be held within the boundaries of the territory over which the local agency exercises jurisdiction . . .”  Government Code section 54954(b).

However, there are the exceptions listed in the same section:

(1) Comply with state or federal law or court order, or attend a judicial or administrative proceeding to which the local agency is a party.

(2) Inspect real or personal property which cannot be conveniently brought within the boundaries of the territory over which the local agency exercises jurisdiction provided that the topic of the meeting is limited to items directly related to the real or personal property.
(3) Participate in meetings or discussions of multiagency significance that are outside the boundaries of a local agency’s jurisdiction. However, any meeting or discussion held pursuant to this subdivision shall take place within the jurisdiction of one of the participating local agencies and be noticed by all participating agencies as provided for in this chapter.
(4) Meet in the closest meeting facility if the local agency has no meeting facility within the boundaries of the territory over which the local agency exercises jurisdiction, or at the principal office of the local agency if that office is located outside the territory over which the agency exercises jurisdiction.
(5) Meet outside their immediate jurisdiction with elected or appointed officials of the United States or the State of California when a local meeting would be impractical, solely to discuss a legislative or regulatory issue affecting the local agency and over which the federal or state officials have jurisdiction.
(6) Meet outside their immediate jurisdiction if the meeting takes place in or nearby a facility owned by the agency, provided that the topic of the meeting is limited to items directly related to the facility.
(7) Visit the office of the local agency’s legal counsel for a closed session on pending litigation held pursuant to Section 54956.9, when to do so would reduce legal fees or costs.
There are also special rules for school boards:

(c) Meetings of the governing board of a school district shall be held within the district, except under the circumstances enumerated in subdivision (b), or to do any of the following:

(1) Attend a conference on nonadversarial collective bargaining techniques.
(2) Interview members of the public residing in another district with reference to the trustees’ potential employment of an applicant for the position of the superintendent of the district.
(3) Interview a potential employee from another district.  Government Code section 54954(c).
Also, Joint Powers Authority have special rules.
(d) Meetings of a joint powers authority shall occur within the territory of at least one of its member agencies, or as provided in subdivision (b). However, a joint powers authority which has members throughout the state may meet at any facility in the state which complies with the requirements of Section 54961. Government Code section 54954(d).
Practically, it can be very difficult for a legislative body to meet outside its jurisdiction. For one, politically, it looks like the agency is hiding something.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Abusive Code Enforcement

By Michael Reiter, Attorney at Law

I have begun to notice a pattern in complaints about code enforcement agencies lately.

One is that certain cities (especially large charter cities) regarding what they want out of code enforcement. They used to want to use code enforcement tools to eliminate blight and come into compliance.  Now, it seems that many cities want to generate revenue from code enforcement instead of compliance.

The second pattern is that code enforcement is abusing their discretion.  In order to make money, little infractions become major code enforcement violations.  Dormant trees in the winter become unmaintained landscaping. A burnt patch of summer grass becomes lack of landscaping.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

 

City of Detroit Bankruptcy and a Comparison to the City of San Bernardino Bankruptcy

By Michael Reiter, Attorney at Law

Last night, I was interviewed by ABC (Australia) News (Radio) regarding the filing of Bankruptcy in Detroit.  It aired during drive time in Australia today (July 19, 2013), which I believe was still last night in California.  I was interviewed by Julian Morrow.

The program was RN Friday Drive, and you can find a link to the podcast of the interview.

I was interviewed late last year by RAI-TV in Italy regarding the San Bernardino Bankruptcy, but I have never seen the footage and I don’t know if it was aired.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

The Notices of Intention to Circulate Recall Petitions in the Proposed San Bernardino Recall 2013

By Michael Reiter, Attorney at Law

Below are four of the Notices of Intention to Circulate A Recall Petition, or at least unexecuted and undated versions.  The originals were in PDF format which were printed with the home addresses of the petition signers were crudely redacted using a Sharpie Magnum Permanent Marker, and rescanned into PDF.

City Attorney James F. Penman

The reasons for the recall are listed by Scott Beard, the proponent, Wendy McCammack’s appointment to the City of San Bernardino Planning Commission, Rialto-based developer, and Seventh Ward resident:

The grounds for the recall are as follows: Mr. Penman is the duly elected City Attorney, and as such is accountable for the actions of that office and of his subordinates. Mr. Penman has been derelict in his official duties by failing to properly enforce the law regarding personal use of public property by members of the Common Council. In addition, Mr. Penman’s office’s selective enforcement of City codes and his failure to timely update and codify city codes, ordinances, and other matters lawfully passed by the City Council has created confusion and insecurity in the City’s residents and businesses regarding accuracy of the City’s published law.

Council Member Virginia Marquez, First Ward

The reasons listed for the recall in the Notice of Intention are listed by the proponent, Christian Fernando Flores (who was reported in the Sun as a student at California State University, San Bernardino):

The grounds for the recall are as follows: Council Member Marquez was elected to office
in November of 2009 and has since that time has failed to protect the health, safety, and welfare
of the residents of the City of San Bernardino and demonstrated dereliction to the duties of her
elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible
program leading to the misuse of the City’s General Fund. Council Member Marquez’s actions
and failures to act, have propelled the City of San Bernardino into financial crisis, and have led
to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City. The City
of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of
the bankruptcy and its proceedings.

Further, Council Member Marquez has violated the public trust by repeatedly failing to
reach consensus with the other members of the San Bernardino City Council on basic issues of
City finances, and ignored advice of the City’s Executive Staff for the previous two years
regarding financial concerns. Her actions have led to massive reductions in City services and
police and fire personnel, causing an increase in crime rates, businesses leaving the City, and
contributed to overall blight within the City.

Council Member Fred Shorret:

The proponent of the recall against Fred Shorett, 4th Ward Council Member, Stephen T. Dawson, who is the chairperson of the United  Transportation Union, states:

The grounds for the recall are as follows: Council Member Shorett was elected to office in March of 2009 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by making fiscally irresponsible votes and by supporting fiscally irresponsible program leading to the misuse of the City’s General Fund. Council Member Shorett’s actions and failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Council Member Shorett has violated the public trust by repeatedly failing to reach consensus with the other members of the San Bernardino City Council on basic issues of City finances which would allow the City of San Bernardino to emerge from the bankruptcy proceedings and begin revival of its economy. The City of San Bernardino is currently the object of nation-wide ridicule as a result of the mishandling of the bankruptcy and its proceedings.

Mayor Patrick J. Morris:

Scott Beard, also the proponent of the recall against City Attorney James F. Penman, gives these reasons:

The grounds for the recall are as follows: Mayor Morris was elected to office in February of 2006 and has since that time has failed to protect the health, safety, and welfare of the residents of the City of San Bernardino and demonstrated dereliction to the duties of his elected office by failing to veto fiscally irresponsible votes and fiscally irresponsible programs leading to the misuse of the City’s General Fund. Mayor Morris’s [sic] failures to act have propelled the City of San Bernardino into financial crisis, and have led to the filing for protection under Chapter 9 of the federal bankruptcy laws by the City.
Further, Mayor Morris has violated the public trust by repeatedly failing to facilitate consensus with the members of the San Bernardino City Council on basic issues of City finances, and ignored advice of the City’s Executive Staff for the previous two years regarding financial concerns. His action and inaction have led to massive reductions in City services and police and fire personnel, causing an increase in crime rates, businesses leaving the City, and contributed to overall blight within the City.

The original PDFs, which are not the embedded redacted versions you see here, have some metadata that explains a little about the origin of the PDFs that were obtained. The Notice of Intent  involving Mayor Patrick J. Morris was created on April 28, 2013 at 10:04:50 PM, with the application being Microsoft Word 2010, with “Michael” listed as the author.  The Notice of Intent to Virginia Marquez  was titled C:\My Files000 — SanBernardinoMatter\NOI.2013.1stWard(Marquez).wpd, also authored by “Michael.”  It was created on April 28, 2013 at 2:19:17 PM.  The original file was on WordPerfect (as you can see by the extension), but the PDF was created by Acrobat Distiller 9.0.0. The Fred Shorret document was created by Microsoft Word 2010, also authored by “Michael.”  It was created on April 28, 2013 at 3:40:59.  The City Attorney James F. Penman document was also on Word 2010, on April 28, 2013, at 10:00:13.

What does this metadata mean?  That whoever created the PDF (but not necessarily the author of the petitions), was named Michael, and that at least one of the documents was created on WordPerfect.  WordPerfect is, or was, largely used by attorneys. No conclusions can be drawn from this metadata.  The Michael may refer to Michael McKinney, the Orange County-based publicist for the recall proponents.  It could be someone else entirely.

Unfortunately, the petitions to recall Second Ward Council Member Robert Jenkins, Third Ward Council Member John Valdivia, Fifth Ward Council Member Chas Kelley, Sixth Ward Council Member and Mayoral Candidate Rikke Van Johnson and Seventh Ward Council Member Wendy McCammack were unavailable.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

The Recall Process Under the Charter of the City of San Bernardino

By Michael Reiter, Attorney at Law

The current Charter of the City of San Bernardino, Article VII is entitled “Initiative, Referendum and Recall.”  Section 122 of the Charter reads (with annotations):

Section 122. The Recall. Proceedings may be commenced for recall of the

holder of any elective office of this City and the election of a successor of the

holder sought to be removed by the service, filing and publication of a notice of

intention to circulate a recall petition. Such proceedings may not be commenced

against the holder of an office unless, at the time of commencement, the holder

has held office for at least ninety days and no recall petition has been filed against

such holder within the preceding six months. A petition demanding the recall of the

officer sought to be recalled shall be submitted to the City Clerk. The petition shall

be signed by not less than fifteen percent (15%) of the voters of the City, or in the

case of a City Council Member elected by ward twenty-five percent (25%) of the

voters of that ward, according to the County Clerk’s last official report of

registration to the Secretary of State. No signature may be affixed to the petition

until the proponents have served, filed and published a notice of intention to

circulate a recall petition, containing the name of the officer sought to be recalled

and the title of his/her office, a statement in not more than 500 words of the

grounds on which the recall is sought, and the name and address of at least one,

but not more than five proponents. The notice of intention shall be served,

personally or by certified mail, on the officer sought to be recalled, and a copy

thereof with a certificate of the time and manner of service shall be filed with the

clerk of the legislative body. Within seven (7) days after the filing of the notice of

intention, the officer sought to be recalled may file with the City Clerk an answer in

not more than 500 words to the statement of the proponents and if an answer is

filed, shall serve a copy thereof, personally or by certified mail, on one of the

proponents named in the notice of intention. At the time the proponents publish

the notice and statement referred to above, the officer sought to be recalled may

have the answer published at his/her expense. If the answer is to be published the

officer shall file with the City Clerk at the time the answer is filed a statement

declaring his/her intent that the answer be published. The statement and answer

are intended solely for the information of the voters and no insufficiency in the form

or substance thereof shall affect the validity of the election or proceedings. The

notice and statement as referred to above, and the answer, if it is to be published

shall be published at least once in a newspaper of general circulation, as described

in Sections 6000 to 6066 of the Government Code, adjudicated as such.

Seven (7) days after the publication of the notice, statement and answer, if it

is to be published, the recall petition may be circulated and signed. The petition

shall bear a copy of the notice of intention, statement and answer, if any. If the

officer has not answered, the petition shall so state. Signatures shall be secured

and the petition filed within ninety (90) days from the filing of the notice of intention.

If such petition is not filed within the time permitted by this section, the same shall

be void for all purposes. The signatures to the petition need not all be appended to

one paper; but each signer shall add to his/her signature his/her place of

residence, giving the street and such other identification as may be required by the

registration law. One of the signers of each such paper shall make oath before an

officer qualified to administer oaths, that the statements therein made are true, and

that each signature to the paper appended, is the genuine signature of the person

whose name purports to be thereunto subscribed. Within thirty (30) days after the

date of filing such petition the City Clerk shall examine and ascertain whether or

not said petition is signed by the requisite number of qualified electors and, if

necessary, the Council shall allow extra help for that purpose, and the City Clerk

shall attach to said petition a certificate showing the result of said examination. If,

by the City Clerk’s certificate, the number of signatures on the petition is shown to

be insufficient, it shall be returned forthwith by the Clerk to the filer(s) thereof who

shall have an additional thirty (30) days from the date the petition is returned to

them by the Clerk to obtain the required number of signatures. The City Clerk shall,

within thirty (30) days after such additional thirty (30) day period to obtain

additional signatures, make like examination of said petition, and, if his/her

certificate shall show the same to be insufficient it shall be void for all purposes. If

the petition shall be found to be sufficient, the City Clerk shall submit the same to

the Council without delay and the Council shall thereupon order and fix a date for

holding said election, not less than fifty (50) days, nor more than seventy (70) days

from the date of the City Clerk’s certificate to the Council that a sufficient petition is

filed.

The ballots used when voting upon said proposed recall shall contain the

words “shall (title of office and the name of the person against whom the recall is

filed) be recalled?” and the words “yes” and “no.”

The Council and the City Clerk shall make, or cause to be made, publication

of notice and all arrangements for conducting, returning and declaring the results

of such election in the same manner as other City elections.

Qualified candidates to succeed the person against whom the recall is filed,

shall be listed on the ballot, except that the incumbent shall not be eligible to

succeed himself/herself in any such recall election.

In any such removal election, if a majority of the votes cast is for “yes” on

the question of whether or not the incumbent should be recalled, the candidate

receiving the highest number of votes shall be declared elected. The incumbent

shall thereupon be deemed removed from the office upon qualification of his/her

successor. In case the party who received the highest number of votes should fail

to qualify within ten (10) days after receiving notification of election, the office shall

be deemed vacant. The successor of any officer so removed shall hold office

during the unexpired term of his/her predecessor. (Effective March 16, 2005)

Any elected official in the City of San Bernardino can be recalled using this procedure.  The limitations are stated above in which the office holder must be in office at least 90 days, and no recall petition has been filed against the office holder in the preceding six months.  The elected officials of the City of San Bernardino are the Mayor, the seven members of the Common Council, the City Clerk, the City Treasurer, and the City Attorney.

The Municipal Code further gives the procedure for recall elections as follows:

2.56.160 Recall elections.
A recall election to remove an elected officer pursuant to Charter Section
122 shall be ordered, held and conducted and the result thereof made known and
declared in the same manner provided in this chapter for municipal primary and
general elections except as follows:
A. Time for Obtaining Signatures. Nomination papers shall be issued and
verification deputies appointed to obtain signatures to nomination papers of
any candidate at any time not earlier than the thirty-fifth day nor later than
five p.m. on the twenty-ninth day before the recall election.
B. Date filed with City Clerk. All nomination papers shall be filed with the City
Clerk not later than five p.m. on the twenty-ninth day before the recall
election.
C. Not earlier than the thirty-fifth day, nor later than the tenth day before a recall
election, the City Clerk shall publish a notice of the election at least once in
one or more newspapers published and circulated in the City. The notice
shall be headed “Notice of Election,” and shall contain a statement of:
1. The time of the election;
2. The offices to be filled, specifying full term or short term, as the case
may be;
3. The hours the polls will be open.
D. Absentee Ballots. Not earlier than the twenty-sixth day, nor later than the
seventh day before a recall election, any voter entitled to vote by absent
voter ballot as provided in Elections Code Section 14620 [See now §3003],
may file with the City Clerk either in person or by mail, his written application
for an absent voter’s ballot. The application shall be signed by the applicant,
shall show his place of residence, and shall make clear to the City Clerk the
applicant’s right to a ballot.
Applications received by the City Clerk hereunder on or after the
fortieth day but prior to the twenty-sixth day before election shall not be
returned to the sender, but shall be held by the City Clerk and processed by
him following the twenty-sixth day prior to election in the same manner as
if received at that time.

(Ord. 3601 (part), 1976; Ord. 2048 §10, 1954.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

Legal word of the day: Prolix

By Michael Reiter, Attorney at Law

Sometimes, you need a five dollar word instead of a five cent word.  The word is “prolix.”  Prolixity, according to Black’s Law Dictionary, Sixth Edition is the “unnecessary and superfluous statement of facts in pleading or in evidence.

As a case example, in 2005, I defeated (in U.S. District Court, plaintiff attempted to appeal to the Ninth Circuit but failed to follow procedure after I became the Assistant City Attorney in Redlands) what may or may not have been a Complaint in United States District Court from a sovereign citizen, what I called a constitutionalists in the past.  Here is a restatement of the Complaint, without the actual prolixity:

Plaintiff claims the City is a corporation or political division of the State of California.  Complaint, Pg. 2, Para. 4.  Plaintiff claims the individual defendants lacked “standing to be officers, agents or employees of the City”  Id. at Para. 24.

Plaintiff claims his property is outside the regulatory authority of the City of San Bernardino.  Complaint, Pg. 9, Para. 13.  However, plaintiff does not claim that it is outside the corporate limits of the City of San Bernardino.

Plaintiff claims that the individual defendants have failed to prove that they had jurisdiction over his property.  Complaint, Pg. 9, Para. 15.  Plaintiff objected to the City’s enforcement of its laws by giving the City an “Abundant Due Process Notice.”  Plaintiff claims that the defendants did not respond to plaintiff’s “Notice.”  Complaint, Pg. 17, Para. 28.

Plaintiff alleges that code enforcement is void under California law.  Complaint, Pgs. 10-11, Para.18.  Plaintiff also claims that the defendants have failed to swear an oath.  Plaintiff states that the defendants “lack . . . competent jurisdiction to regulate the subject private land.”  Complaint, Pg. 17, Para. 30.

Though plaintiff alleges no facts regarding what the City did (or did not do) that caused him to serve the “Abundant Due Process Notice,” plaintiff states that “on or about March 1, 2005, the City again threatened an Administrative Law action against the subject private land.”  Complaint, Pg. 17, Para.29.  Much later, plaintiff alleges that “on March 5, 2005, the City of San Bernardino again attempted to have him bring the use of his private land into compliance of the San Bernardino City Municipal Code.”  Complaint, Pg. 20, Para. 37.

Plaintiff alleges seven causes of action (there is no sixth cause of action), including six Fifth Amendment Due Process causes of action, and one combination First Amendment “Right to Seek Redress of Grievance” and Fifth Amendment Due Process cause of action.

The first cause of action alleges that plaintiff has a right to “peaceful ownership, enjoyment and use of the subject private land.”  Complaint, Pg. 19, Para. 35.  The individual defendants have a duty to place “into the record such contractual information or documentation which they allege brought the private land and chattels under such City of San Bernardino Administrative Law.”  Id., Pg. 19, Para. 36.  The individual defendants conspired to “perpetrate their custom, policy and practice of dealing with [Plaintiff] under the mere ‘color of state law’” in violation of 42 U.S.C. sections 1983 and 1985.  Id., Pg. 20, Para. 39.

The second cause of action states that plaintiff had a “primary right” to rely on a repealed Penal Code section.  Complaint, Pg. 21, Para. 42.  Plaintiff states that defendants had a duty to know that there was no authority to obtain demolition orders, but maliciously commenced several legal actions against private land.  Id. at Para. 43.  The individual defendants conspired in the same manner as in the previous cause of action.  Id. at Para. 45.

The third cause of action states that plaintiff had a right to challenge jurisdiction which would require the government to prove jurisdiction before any further action could be taken.  Plaintiff claims he made the challenge and no “proof of jurisdiction [was] placed into the record.”  Complaint, Pg. 22, Para. 48.  The defendants “again met and gathered together and conspired to ignore the plaintiff’s written challenges to their competent regulatory jurisdiction and again attempted their regulatory actions.”  Id. at Para. 49.

Plaintiff alleges in the fourth cause of action that he had a right to be free of government action.  Complaint, Pgs. 23-24, Para. 53.  Defendants had a duty to refrain from “private Administrative Law actions against the subject private land.”  Id., Pg. 24. Para. 55.  Defendants then conspired in the same way alleged in the first cause of action.

In the fifth cause of action, plaintiff alleges that on March 1, 2005, plaintiff served his “Abundant Due Process – Notice” to the defendants that his land was not subject to the City’s regulatory control because it was sovereign allodial title.  The defendants never made a response, thus defaulting on the jurisdictional challenge.  Complaint, Pg. 25, Para. 60.

Plaintiff alleges in the next cause of action, denominated the seventh cause of action, that he had a right to justifiably rely on the presentation on the City’s seal that the City was founded in 1810.  Complaint, Pgs. 25-6, Para.62.  The City had a duty to know the actual founding date and change the claimed founding date to 1905.  Id., Pg. 26, Para. 64.  Plaintiff again claims that the individual defendants conspired.  Id. at Para. 65.

The eighth cause of action states that none of the “named defendants” have sworn nor subscribed to the oath of office, and that the oath of office is a requirement to occupy any official office.  Complaint, Pg. 27, Para. 68.  Plaintiff had a due process right “to expect that all officers, agents and employees of the City” swore to an oath before they had any official standing to take action against private land.”  Id. at Para. 69.  The individual defendants had a duty to swear to the oath before they took actions.  Id. at Para. 70.  The individual defendants then conspired in the same way alleged in the first cause of action.  Id. at Para. 72.

Plaintiff claims that the defendants were “private persons merely claiming to be governmental officers, agents or employees.”  Complaint, Pg. 30, Para. 80.

I believe I attacked the complaint using either this case, or a similar case, which taught me the word prolixity in context of F.R.C.P. Rule 8:

A heightened pleading standard is not an invitation to disregard’s Rule 8‘s requirement of simplicity, directness, and clarity. The “particularity” requirement of a heightened pleading standard, requiring “nonconclusory allegations containing evidence of unlawful intent,” as opposed to “bare allegations of improper purpose,” has among its purposes the avoidance of unnecessary discovery. Branch, 937 F.2d at 1386. If the pleading contains prolix evidentiary averments, largely irrelevant or of slight relevance, rather than clear and concise averments stating which defendants are liable to plaintiffs for which wrongs, based on the evidence, then this purpose is defeated. Only by months or years of discovery and motions can each defendant find out what he is being sued for. The expense and burden of such litigation promotes settlements based on the anticipated litigation expense rather than protecting immunity from suit. Judgment and discretion must be applied by district judges to determine when a pleading subject to a heightened pleading standard has violated Rule 8, but there is nothing unusual about a standard requiring judges to exercise judgment and discretion. We have affirmed dismissal with prejudice for failure to obey a court order to file a short and plain statement of the claim as required by Rule 8, even where the heightened standard of pleading under Rule 9 applied. Schmidt v. Herrmann, 614 F.2d at 1223-24. In Schmidt, as in the case at bar, the very prolixity of the complaint made it difficult to determine just what circumstances were supposed to have given rise to the various causes of action.  McHenry v. Renne (9th Cir. 1996) 84 F.3d 1172, 1178.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Leaving Your Keys In the Ignition In Your Car In San Bernardino: It’s Against the Law (and you’ll be fined $2 before P&As).

By Michael Reiter, Attorney at Law

When I was a Deputy City Attorney for the City of San Bernardino, I never once saw this section enforced, with its circa 1964 $2 fine:

10.16.140 Removal of ignition key.
A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.
B. Any person convicted under this section shall be punished by a fine of not less
nor more than two dollars; and such person shall not be granted probation by
the court, nor shall the court suspend the execution of the sentence imposed
upon such person.
(Ord. MC-460, 5-13-85; Ord.3880 §2 (part), 1980; Ord.2613,1964; Ord. 1652 Art. 4 §14, 1941.)

What’s the background on this law?

First, the 1941 ordinance, Ordinance 1652 is available online.  The ordinance repeals a variety of ordinances and adopts an overarching scheme for regulating traffic in the City of San Bernardino. Difficulty?  Article 4 has no section 14.  Another added difficulty, is that I didn’t see any similar language anywhere in the text of the ordinance. However, the language (especially the two dollars) sounds archaic.

The Municipal Code annotation is incorrect, because the section does not come from Ordinance 1652 as originally adopted.  Ordinance 2613 from 1964 amended Ordinance 1652 by adding section 14.  There is no legislative history or findings in the ordinance itself (and there are no minutes online), which reads in pertinent part:

 SECTION FOURTEEN: No person having charge or control of a
motor vehicle shall allow such vehicle to stand upon any street,
alley or parking lot upon which there is no attendant, when such
motor vehicle is unattended, without first locking the ignition
of said vehicle and removing the ignition key from such vehicle.
Any person convicted under this Section shall be punished
by a fine of not less nor more than Two Dollars ($ 2. 00); and such
person shall not be granted probation by the Court, nor shall the
Court suspend the execution of the sentence imposed upon such
person.

Ordinance 3880 (November 20, 1979) (not 1980 as shown in the annotations), Section 2 amended Section 14 to be titled SECTION FOURTEEN: Removal of Ignition Key.

The ordinance was codified in 1980, I believe, but I have not seen that ordinance.  It divided it into section (a) and (b), capitalization was changed, as was the reference to ($2.00) in section (b).

MC-460, Section 120, enacted May 15, 1985, amended the codified version, 10.16.140(a) to read:

A. It is unlawful for any person having charge or control of a motor vehicle to allow
such vehicle to stand upon any street, alley or parking lot upon which there is
no attendant, when such motor vehicle is unattended, without first locking the
ignition of the vehicle and removing the ignition key from such vehicle.

The backup from the City Attorney’s Office included removing archaic laws, but apparently, section B remained.

Item 7i on the July 2, 2012 agenda included a re-adoption of this section as part of a cleanup regarding reorganized departments, however, upon watching the video of that meeting (there does not appear to be minutes available online), it was tabled on a 7-0 motion by Council Member Wendy J. McCammack because of the need for further reorganization by the City Manager.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com

How To Use A Court Interpreter in San Bernardino Superior Court

By Michael Reiter, Attorney at Law

As long-time readers know, I am a member of the Hon. Joseph B. Campbell American Inn of Court.  Last night was a monthly meeting, and the program was one of the best since I became a member in the earlier part of the last decade.  The program included a skit that showed how interpreters were used in a criminal trial, both with American Sign Language interpreters and Spanish interpreters.  When I was a Deputy City Attorney for the City of San Bernardino, the court interpreters were invaluable in communicating with primarily monolingual Spanish speakers in code enforcement cases.  While the performers in the skit provided a great deal of information, here is some information derived from the hand outs:

How To Use a Court Interpreter

The interpreter is your voice in court.

So, it is important to . . .

Listen carefully to the interpreter.

Wait for the interpreter to finish talking before your answer.

Do not speak in English, even if you speak a little.  It is confusing for the judge.

Do not interrupt, even if someone in court says something bad about you.  You will get a chance to speak.

Take notes. If someone says something untrue, write it down.  Then when it is your turn to speak, you can tell the judge your side.

Source: How to Use a Court Interpreter, Superior Court of California, County of San Bernardino, pamphlet in English and Spanish, undated.

Additionally, a handout with the title of the presentation, “Lost in Translation” dated January 2013 says:

Our guest Spanish Language Interpreters ask that we, as attorneys and judicial officers, always keep the following things in mind . . .

– Don’t speak fast.

– Don’t use humor or figures of speech. [Note: The examples given were, “you’re really in a pickle” or “bird of a different feather”]

– Don’t give the jury instruction on interpreters or modify it.

[Note: The interpreter referred to CALJIC Instruction 121 which reads:

“Some testimony may be given in <insert name or description of language other than English>. An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the (clerk/bailiff).”  The notes state: “The committee recommends that this instruction be given whenever testimony will be received with the assistance of an interpreter, though no case has held that the court has a sua sponte duty to give the instruction. The instruction may be given at the beginning of the case, when the person requiring translation testifies, or both, at the court’s discretion. If a transcript of a tape in a foreign language will be used, the court may modify this instruction. (See Ninth Circuit Manual of Model Jury Instructions, Criminal Cases, Instruction No. 2.8 (2003).) If the court chooses, the instruction may also be modified and given again at the end of the case, with all other instructions.”

The interpreter presenting strongly objected to the part of the instruction which states: “If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note” undermined the certified interpreter’s training and experience and emphasized that the instruction was not mandatory, and that the judicial officer could leave that objectionable line out of the instruction.]

– Always speak directly. [Note: attorneys should speak to the witness, and the witness should answer the attorney.  Do not speak to the interpreter directly].

– Beware of false cognates.

– Spanish is 30% longer than English.

– The Only person who never stops speaking during proceedings is the interpreter.

The American Sign Language interpreters said that they are required to provide a translation that included emotions such as shouting or sarcasm.  The Spanish language interpreters said that it was a matter of style for them to provide the translation in the same tone or volume.

Thank you to the leaders of the Inn for providing such an educational program, particularly Judge John Pacheco and Donna Connally, and to the court interpreters that helped us understand the process.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 300 E. State St. #517
                  Redlands CA 92373-5235