How South California Can Become One of the United States

By Michael Reiter, Attorney at Law

I will not discuss the merits of the recent discussion of creating “South California” from the southern (minus Los Angeles County and Ventura County) and eastern central California counties.  Here, however, is the legal process for South California to become a state.

“New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”  United States Constitution, Article IV, Section 3, Clause 1.  Thus, the first step would be for the California Legislature to approve of South California.  Then, Congress would have to approve of South California.

The last time this happened (successfully) was when West Virginia was formed from the northwestern counties of Virginia in 1863.  However, it was during the Civil War, so it wasn’t quite the actual Virginia legislature agreeing to split off a new state:

The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles-‘the Pierpont government’-and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia-passed August 20th, 1861, an ordinance by which they ordained that a new State be formed and erected out of the territory included within certain boundaries (set forth) including within those boundaries of the proposed new State.  State of Virginia v. State of West Virginia, (1870) 78 U.S. 39, 40.

Congress passed “An Act for the admission of the State of ‘West Virginia’ into the Union, and for other purposes” on December 31, 1862, which President Lincoln issuing a proclamation on April 1863, admitting West Virginia into the Union within 60 days.

The Act Admitting Hawaii, Public Law 86-3, amended federal statutes to change Hawaii from a territory to a state.  Presumably, adding a new state would be more complicated.  In any case, it has been almost 150 years since a state split, and more than 50 years since a new state was added.  The act to admit Hawaii required a plebiscite, presumably Congress could require a popular vote before admitting South California.   The Act Admitting Hawaii also required a presidential proclamation, just like the Act admitting West Virginia. Arguably, the Constitution requires neither a popular vote nor presidential approval, or any executive branch action.

The tricky parts would be stripping out references to the seceding counties in California law.  Presumably, the new state would adopt the laws of California until such time that a new legislature could convene or a new constitutional convention could be held.
The California State Constitution would have to be amended.The boundaries of the State are those stated in the Constitution of 1849 as modified pursuant to statute. Sacramento is the capital of California.”  California Constitution, Art. 3, Sec. 2.

A whole host of California statutes would have to be amended as well, including the Government Code’s definitions of the boundaries of the State of California.

There would also be issues regarding interstate compacts, debts of the State of California, and of course, state water project water.  There would also be issues regarding State of California property, such as the University of California, which has three campuses in the proposed South California.  Needless to say, litigation would ensue.

Though I will not comment on the political merit of the proposal, the name “South California” is terrible.  “South California” does have precedent on its side (North and South Carolina, North and South Dakota, and West Virginia).  However, popularly, this half of the state is called Southern California. Of course, it doesn’t include all of the current Southern California, and decidedly includes counties that are popularly referred to as Central California.  Adding to the confusion are the two Mexican states of  Baja California and Baja California Sur (literally, Lower California, and Lower California South.  Maybe the proposed  new state can be renamed “Alta California” in tribute to the former Mexican territory, and later department.

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: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055

Front Yard Fruit Stands in Redlands, California

By Michael Reiter, Attorney at Law

I am a native of the Inland Empire and some of my earliest memories are of Redlands, from the San Bernardino County Museum, to field trips to Kimberly Crest, and attending meetings in the Assembly Room of the A.K. Smiley Public Library.  I learned much more about Redlands as Assistant City Attorney from January 2006 to June 2010. My office as a private attorney is in Redlands.

You can’t really know a city until you have walked its streets, particularly its residential areas.  One of the perksof street level exploration of a city (other than noticing the infrastructure) is finding little gems.  One of the things that gives Redlands its character  is its history in agriculture, not just being the Washington Navel Orange capital of the world, but appreciating the still-large amount of active agriculture.  In addition to active agriculture, there are backyard remnants of groves and other fruit trees.  If you drive around Redlands, you can find many front yard fruit stands.  You can find a story on this phenomenon in the Press-Enterprise article published on March 5, 2010 titled “Citrus Sales are part of the tradition of Redlands, nothing beats fresh” by Jan Sears and Darrell R. Santschi.  As of the writing of this post, it is available online.  I am not going to link to it because newspaper links break very easily.

For example pomegranates grow very well in Redlands.  And even though they are very expensive in supermarkets, you can pick them up at some front yard fruit stands.
I know of no guide to these fruit stands.  As I discover their exact location, I will post their block location and produce.  I do not want to give exact locations, because the people providing the service are doing a great the public a favor, and if the Press-Enterprise story is any indication, running the stands is a hassle.  If anyone with a stand wants to make a comment, or grant me permission to put an exact location, I will publish it below.  If anyone does not want to be included, let me know as well.

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. #517 Redlands CA 92373-5235
T: (909) 708-6055

Can a California local public official sue for slander or libel (defamation)?

By Michael Reiter, Attorney at Law.

In California, do statements regarding a public official made during a public meeting and statements regarding a public official made in letters to the editor of a newspaper or other written materials that are publicly distributed give rise to a cause of action for defamation?  “Defamation” is used generically to include both libel (written) and slander (spoken).  The distinctions between the two are largely procedural, so I will use “defamation.”

It is very difficult for a public official to prevail on a claim that a statement made about the official at a council meeting, or in the press, is defamatory.  Statements made during local agency meetings, even if false, are privileged and do not constitute defamation.  Statements made in the press about a public official are generally not defamatory unless the official can show the statements were made with actual malice.

Any discussion of defamation involves two different levels of inquiry.  The first is whether a statement is defamatory.  Defamation is generally defined as a false and unprivileged publication (to a third party) which causes damages (Civil Code sections 45, 47).  Therefore, if a statement is true, or if it is privileged, then it is not defamation.  Second, even if a statement is not true, or not privileged, a public official may only be defamed if a false statement regarding the official is made with actual malice (that is, with knowledge that it is false, or with reckless disregard of its truth or falsity).  New York Times v. Sullivan (1964) 376 U.S. 254, 279-280.

The New York Times case, which discusses “actual malice,” involved an advertisement printed in the New York Times newspaper that contained certain false statements regarding civil rights-era Alabama.  The plaintiff in the New York Times case was a public official — the Montgomery, Alabama Police Department Commissioner.  In summary, the United States Supreme Court determined that although the statements published in the advertisement were false, they were not made with actual malice and therefore did not result in defamation.  The Supreme Court reasoned that the First Amendment protects false statements about public officials because “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”

Statements made at a local agency meeting are privileged under California law and therefore cannot constitute defamation.  (Civil Code section 47(b)).  The law states that a privileged publication “is one made . . . in any . . . legislative proceeding.”  The courts have read “any legislative proceeding” very broadly to include “all that is spoken or done in the course of legislative proceedings.”  Scott v. McDonnell Douglas Corporation (1974) 37 Cal.App.3d 277, 288.  In Scott, a letter distributed at a city council meeting charged the city manager with a lack of moral and ethical character.  The court found that the distribution was privileged.  The court’s reasoning was that the benefits of extended immunity outweigh a narrow reading of the privilege, “even though it countenances vehement, caustic and at times vigorous attacks on government officials.”  Id., quoting New York Times.  The immunity extends to interested members of the public who wish to address themselves to matters pending before a legislative body.  Id.

For example, if a speaker comments on a development and states that “this development will be approved because the entire agency governing body is taking bribes from the developer,” the statement, even if false, is privileged because it is relevant to the subject matter of the meeting.  Likewise, if a speaker, during public comments says that “the entire agency governing body is corrupt and is taking bribes from developers,” it is still relevant to the subject matter of the legislative proceeding because the Ralph M. Brown Act allows citizens to make public comments within the subject matter jurisdiction of the local agency, and specifically allows criticisms of the acts or omissions of the legislative body.  Therefore, such a comment is privileged and not actionable, even if false.

Letters to the editor that are not true, not privileged, and not an opinion, may be actionable as defamation if there is a false statement regarding a public official made by a speaker who has “actual malice.” The difference between an opinion and a “fact” (true or untrue) turns on a variety of factors.  Defamation “can be meaningfully applied only to statements that are capable of being proved as false or true.”  Savage v. Pacific Gas & Electric (1993) 21 Cal.App.4th 434, 445.  In one case, a newspaper reporter’s statement that a city council member was a crook and a crooked politician were found to be statements of opinion.  Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172.

The “actual malice” standard can be difficult to prove, but is not insurmountable.  Former San Francisco Mayor Joseph Alioto was able to prevail in a defamation action after suing the publishers of Look Magazine.  The magazine had published an article which falsely detailed dealings between the Mayor and members of the mafia.  The magazine was found to have published the article with actual malice, meaning a reckless disregard for the truth.  Alioto v. Cowles Communications (1977) 430 F.Supp. 1363.  However, it took Mayor Alioto eight years after the article was published to win the case and collect a judgment.

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 Religous Land Use and Institutionalized Persons Act (RLUIPA) and Zoning in the Inland Empire

By Michael Reiter, Attorney at Law

What is the Religious Land Use and Institutionalized Persons Act (RLUIPA)?

RLUIPA was enacted by Congress in 2000.  RLUIPA states, regarding land use,  that the government may not “impose or implement a land use regulation in a manner that imposes a substantial burden” on religious exercise unless the government demonstrates that the imposition of that regulation (and its accompanying “burden”) is in furtherance of a compelling governmental interest,” and is the “least restrictive means of furthering that interest.”  42 United States Code section 2000cc.  RLUIPA broadly defines the term “religious exercise,” to include “the use, building, or conversion of real property for the purpose of religious exercise.”  42 United States Code section 2000cc-5(7)(B).   The Ninth Circuit Court of Appeals held that “for a land use regulation to impose a ‘substantial burden’ it must be ‘oppressive’ to a ‘significantly great’ extent.  That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”  San Jose Christian College v. City of Morgan Hill (9th Cir. 2004) 360 F.3d 1024, 1034.

RLUIPA also states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  42 United States Code section 2000cc(b)(1).  The “equal terms” section requires the government to treat religious assembly uses in the same way it would a non-religious use.

RLUIPA adds a layer of federal regulation to local Inland Empire government’s land use authority.  In discretionary land use decisions involving religious uses, local governments need to be familiar with the requirements of RLUIPA.  When I was Assistant City Attorney for the City of Redlands, RLUIPA was an issue that arose from time to time in City Council and Planning Commission land use decision-making.

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

Growing and selling crops and agricultural products in Inland Empire Cities

By Michael Reiter, Attorney at Law

The San Francisco Chronicle has a story today on page A-1 about a property owner who has a pocket farm in Oakland.  The City of Oakland says that she needs a Conditional Use Permit to continue to sell her produce and livestock-derived food.  According to the same article, the City and County of San Francisco has already created new ordinances to deal with the urban farming trend in the Bay Area.

The Inland Empire has a rich history of agriculture, and unlike Oakland, still has agriculture.  According to the California Department of Agriculture,  of California’s 58 counties,   Riverside County was the 12th largest farm county in California in  2007, slipping to 13th in 2008.  Riverside’s crops were valued at $1,268,590,000.  The leading commodities for Riverside County in 2008 were nursery stock, milk, eggs, table grapes and hay.  San Bernardino County was the 17th largest farm county in California in 2007, slipping to 20th in 2008.  That probably is largely due to the dairies leaving Chino and South Ontario.  San Bernardino County’s crops were valued at $547,158,000 in 2008.  The leading commodities that year were milk, eggs, cattle and calves, replacement heifers and trees and shrubs.

By 2009, San Bernardino County had fallen to 25th out of  58 counties, with total production down to $355,379,000, with alfalfa becoming a top crop.  The march of urbanization made a significant dent in just two years.  The recession was probably the only thing preventing more losses.  Much prime agricultural land has been converted into housing.

When I was Assistant City Attorney for the City of Redlands, there was still significant agriculture in the City.  Some parts of the City and areas within the City’s sphere of influence were zoned agricultural.  In the A-1 Agricultural zone (one of a number of zones where agriculture is allowed by right) in Redlands, allows agricultural  uses  (only part of the section is quoted below, as shown by the ellipses):

“Apiaries, provided that no hives or boxes housing bees are kept closer than three hundred feet (300′) from any dwelling other than that occupied by the owner of the apiary;

Farms or ranches for the grazing, breeding or raising of not more than two (2) horses, cattle, goats or sheep per acre. . . .

Orchards, groves, nurseries, the raising of field crops, tree crops, berry crops, bush crops, truck gardening and commercial flower growing;. . . The sale of fruit, vegetables, produce, flowers and other similar products grown on the property; provided, however, that roadside stands used for such sales shall not exceed five hundred (500) square feet.”   Redlands Municipal Code section 18.20.030.  Other zones allow produce stands, either explicitly, or by reference to other zones.

In San Bernardino, where I was a Deputy City Attorney, there are only remnants of agriculture.   If you have a fast connection, or some spare time, you can find San Bernardino’s zoning map.  According to the City of San Bernadino’s Development Code, San Bernardino Municipal Code section 19.08.o20, agricultural production-crops, is allowed, subject to a development permit in the IH (Industrial Heavy) and IE (Industrial Extractive) zones.  Like the City of Oakland, agricultural uses are allowed in almost every residential zone in San Bernardino (except RSH, Residential Student Housing) with a Conditional Use Permit.  San Bernardino Municipal Code section 19.04.020.  “Agriculture” is defined as the ” use of land for farming, dairying, pasteurizing and grazing, horticulture, floriculture, viticulture, apiaries, animal and poultry husbandry, and accessory activities, including, but not limited to storage, harvesting, feeding or maintenance of equipment excluding stockyards, slaughtering or commercial food processing.”  San Bernardino Municipal Code section 19.02.050.   It is not immediately clear if that includes a produce stand.  That would probably be subject to the development permit or conditional use permit process.

The common sense advice is to check with your city, or if you are in an unincorporated area, Riverside or San Bernardino County before you start your mini-farm.  Also, there are other issues out there, such as legal non-conforming uses, non-zoning issues such as the keeping of animals, the need for a business registration certificate or a business license if you’re selling your produce or animal products, the possibility of County Health inspections and permits.  As with anything, you should get legal advice before starting instead of  facing a citation or a lawsuit alleging nuisance.  If you find yourself in trouble, find an attorney versed in land use or code enforcement, or both, depending on your situation.

Update 4/22/2011  The Mayor and Common Council had this agenda item on the 4/18/2011 meeting agenda.   According to the summary, the matter was sent to the Legislative Review Committee to review the proposal to allow food carts, coffee carts and vegetable stands.

Update 5/14/2012  The City of San Bernardino Mayor and Common Council passed MC-1363 in August 2011, changing the transient vendor ordinance 5.04.495, to have an exception to allow food carts as allowed by the Development Code, 19.70.060(1) which says “food carts and produce stands may be permitted for one year initially, and renewed annually, subject to verification of compliance with conditions of approval and County permit requirements, as applicable.”  19.70.020(11) states that temporary uses, subject to a Temporary Use Permit, including  “Food carts, operated at fixed, pre-approved locations, in the Main Street Overlay District, at least 500 feet away from any restaurant and under current permits from the County Environmental Health Services Division.”  SBDC section 19.70.020(12) also allows produce stands in community gardens.

 

Copyright 2011 Michael Reiter, Attorney at Law

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

Michael Reiter, Attorney at Law

Welcome to my blog.  I hope to use this blog to comment on the law, including personal injury law, municipal law, real property law, and small business law.

http://michaelreiterlaw.com

 

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