HomeMy WebLinkAbout18 AMICUS BRIEFS 04-03-95MEMORANDUM
TO:
William A. Huston, City Manager
City of Tustin
NO. 18
4-3-95
, HARI 51995 ~
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FROM: City Attorney
DATE:
March 13, 1995
RE:
Procedure for Involving the City in Pro Bono Amicus Briefs
Recommended by the California League of Cities
The City's procedure in the past has been to authorize the City Attorney to add the
City's name to amicus briefs that have been recommended by the California League of
Cities. An amicus brief (sometimes known as a "friend of the court" brief) is filed by an
entity or individual who is not a party in a given lawsuit, but nonetheless may be affected
by the outcome. A party to a lawsuit typically has one gOal in mind: to prevail. An amicus
can urge a broader prospective, advising the court of the implications of resolving the
issues presented by the case, one way or the other. The amicus briefs recommended by
the League are prepared by a volunteer law firm or city attorney, and involve no out-of-
pocket costs to the City of Tustin. We call them pro bono briefs.
From time to time, we have recommended that the joinder in such briefs be placed
on the City Council agenda for the City Councirs consideratiOn. This has occurred when
we believed that the public policy issues involved in the case warranted special interest, or
where it was believed that the City Council might not have a consensus position.
I am bringing this issue to your attention because recently plaintiffs and trade
industry groups who oppose the amicus bdefs filed by the League of Cities in various cases
have engaged in letter writing and publicity campaigns to dissuade cities from joining in
amicus briefs. For example,.we recently received a letter from the plaintiff's attorneys in
the Knott v. State case, wherein the plaintiff's attorneys accused the city councilmembers
of being part of a "cult of nonresponsibility." The letter chastising the City Council was sent
to the local newspapers. Recently, I was telephoned by the owner of a water softener
company who questioned the City's joinder in an amicus brief on behalf of the City of
Escondido in support Of that city's pending appeal of a Superior Court decision' that struck
down an ordinance prohibiting the use of water softeners. As you know, such ordinances
protect the quality of wastewater delivered to the city's wastewater system so as to facilitate
water reclamation. I anticipate that letters will be sent to the City Council or press releases
distributed criticizing the City in some way for its joinder in this amicus brief.
William A. Huston, City Manager
City of Tustin
March 13, 1995
Page 2
Because of all the controversy that has arisen recently, I think it is prudent for the
City Attorney to receive guidance from the City Council. We can continue as we have in
the past to review cases recommended by the California League of Cities, and to add the
City's name to the list of amicus cities. Alternatively, we could bring every request for
amicus joinder to the City Council for their consideration.
For your information and for that of the City Council, I have attached a copy of the
criteria that the Legal Advocacy Committee of the League of California Cities uses in
determining whether to urge cities to join in an amicus brief and a description of the Legal
Advocacy Program. The Legal Advocacy Committee is made up of 19 city attorneys from
throughout the state who meet on a regular basis to debate and discuss the merits of
amicus proposals. I am the representative on this committee from Orange County.
If the City Council wishes to continue with the current practice, it is my intention to
-provide periodic memos to the Council to inform them of the cases that the City is
supporting and the issues involved.. ~:.~.~ ~~'
LOIS E. JEFC_.R~ 0
Enclosure
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· ,-mB League of California Cities
I~~~. f SACRAMENTO, CA 95814 · {916)444-5790
Ca/i/omia Cities
Work Together Sacramento, California
July 12, 1991
LEAGUE OF CALIFORNIA CITIE~
LEGAL ADVOCACY PROGRAM
(as adopted in April 1975, amolded in Jemut~. 1981,
There. shall be a Legal Advocacy Program established within the framework of the
League and the City Attorneys' Department. The program'shall be administered by a
Legal Advocacy Committee, '
I.
Legal Advocacy. Committee
A. Purpose~
The Committee shall screen and evaluate ail litigable issues submitted to it
to determine the existence of those of major' significance to cities in
general. Major signifi_cance is to be determined by the effect the case
outcome could have on existing statutory or case law and in accordance
with the following guidelines:
le
Whether the issue would have a statewide significance and is one in
which all cities have a common interest in the same outcome.
0
Whether the issue would have a si~ificant impact on a significant
number of cities which have a common interest in the same
outcome and would not have a foreseeable adVerse impact on other
cities.
B.
CompoSitio_u
The Committee shall be composed of City Attorneys. One Committee
member selected from each of the Regional Divisions of the League,
exclusive of the cities of Los Angeles, San Diego, San Francisco and San
Jose, shall be appointed by the President of the City Attorney's
Department, in consultation with the other DePartment officers.
Ce
De
The following division representatives shall be appointed in even numbered
years: Central Valley, East Bay, Imperial COunty, Los Angeles County, ·
North Bay Orange County, South San Joaquin 'Valley, Desert-Mountain
Divisions. The following division representatives shall be appointed in
odd-numbered years: Channel Counties, Inland Empire, Monterey Bay,
Peninsula, Redwood Empire, Sacramento Valley and San Diego County. If
any additional divisions are 'created a representative shall be appointed
from that division.. The first such appointment shall be made in odd-
numbered years with any additional divisions alternating between even- and
odd-numbered years so one half of the Committee can be appointed each
year. All division Committee members shall serve for a period of two
The City Attorney, or a designated assistant or deputy, of the dries of Los
Francisco and San Jose, shall serve as permanent
Angeles,
San
Diego,
San
members of the Committee.
The officers of the City Attorney's Department shall serve as ex-officio
members of the Committee without the right to' vote,.
The Committee shall select from among its members a chairperson who
shall serve for. a period of one year. The chairperson shall be selected at
the last meeting of .the Committee prior to the expiration of half the
committee members' terms.
Meetings
The Committee shall meet regularly on a mutually convenient day within
the month preceding each quarterly meeting of the League Board of
Directors, unless canceled by the chairperson.
Special meetings may be called by the Committee chairperson or PreSident
of the City Attorneys' Department.
At any regular or special meeting, a majority of members shall constitute a
quorum. No proxy votes shall be penni~ible at a duly convened meeting.
Executive Committee.'
The Committee shall select from among its members aa Executive
Committee of seven which may act between meetings of the full
Committee. The election shall occur at the last meeting of the committee
prior to the expiration of half the Committee members' terms. The
Committee, in makin,' g its choices, should keep in mind the diversity of the
IIe
department and seek representation of its membership including small city
versus large city, charter versus general law, elected versus appointed, and
full time versus part time. Two of the seven Executive Committee '
members shall be selected from the four permanent members, one from
northern Calffo~a and one from southern California. The other five
Executive Committee members shall, be selected from the division
representatives. The LAC Committee chairperson shall be a member of
the Executive Committee.
The Executive Committee shall act for the flail Committee only when
necessary because time-constraints for a case do not allow consideration at
the next Committee meeting. Actions subje.ct to approval. -by the League
Board of Directors require a majority vote of the.quorum. Actions not
subject to revieW by the Board Shall be taken in the name of the Legal
Advocacy Committee and shall require five affirmative votes. It is
important ~that such .actions be representative of all of the League's
membership and only be taken when the issue is of clear importance,
commonly shared and consistent wi .th_Department and Board policy.
Legal Advocacy_ Program
A. Functioning
1. Information Collection
(a)
DiviSion Committee-members are responsible for keeping
informed of all litigable issues arising within their Division
which potentially fall within the purposes of the Committee.
(b)
City Attorneys are respons~le for providing'on a regular
basis to their Committee member information concerning
cases pending by. or against their city or other public agencies
within their knowledge.
2. Transmittal tO Committee
(a)
Division Committee members are responsible for having the
city or other public attorney litigant convey to all members of
the Committee all pertinent information concerning such
issue or case so coming to their attention.
(b)
Any City Attorney may submit directly to all members of the
Committee for consideration and action by the Committee
any litigable issue by directing to all members of the
Be
Committee a request therefor, accompanied by all pertinent
documents.
Regular Committee Actions
Upon receipt of information concerning a litigable isSUe from a Division
Committee member or upon receipt of a request for consideration and
action by a City Attorney, the Commktee, in accordance with the
guidelines set forth in the Purposes, supra, may as it deemq appropriate
recommend one of the following actions:
Inform all City Attorneys of the issue and the 'Committee's opinion
that no further action is warranted.
·
2. Invite or solicit the filing of individual amicus curiae briefs.
e
Approve amicus curiae appearance by brief and/or argument by a
city or public attorney on behalf of all cities consenting.
Whenever the committee determines to take action under thi.q
paragraph it may take the following additional actions; (a) urging
participation by all dries; or (b) recOmmending participation by
cities interested in the matter.
Authorize a, letter to be sent to either (a) seek or oppose court
review of a certain decision, or (b)'seek or oppose publication of a
certain court's opinion_ ..
e
ApproVe the instigation of litigation by participating cities.
e
Select an attorney, if required, to prepare the case, as amicus curiae
or otherwise, to be funded:
(a)
By voluntary contributions of cities solicited by the League on
behalf of the City Attornefs Department to be made directly
to the attorney selected by the Committee.
(b)
By voluntary C°ntn'butions of dries solicited by the League on
behalf of the City Attorney's Department to be administered
by the League as trustee.
e
Approve, by no less than a majority vote of the entire membership
of the Committee, direct League participation in an amicus curiae
brief to be prepared, at no expense to the League, by an attorney
Ce
D.
selected in accordance with subdivision 3 or 6 above. Direct
participation by the League as amicus curiae shall be limited to
those exceptional cases in which the issue or issues would have a
major impact on all cities and all dries have a common interest in
the same outcome.
The Committee's recommendations shall be placed on the agenda for the
next meeting of the League BOard of Directors. After Board action the
Legal Advocacy. report with the approved recommendations shall be sent to
the city attorneys statewide.
Authorization for Committee Actior~ Without Board Review
It is reco~tmi?ed that became of time constraints, some actions by the LAC
on requests for amicus participation (Sections B 1, 2 and 3) and on
petitions for certiorari, requests for hearing, extraordinary writs and the
publishing or depublishing of opinions (Section B 4) must often be taken
without prior approval fi.om the Board. Such actions may be taken
provided they are consistent with the policy and programs of the League of
California Cities and are approved by a two-thirds vote of a quorum of the
Committee. However, they must be taken in the name of the Legal
Advocacy Committee and not on behalf of the League of California Cities.'
Reconsideration
Provided there has been a significant change in either the circumstances or
the applicable law which occurs after a committee action, or when the
action may conflict with League policy, a request for reconsideration may
be made by a Committee member who also must suggest an alternative
action. The request, if possible, shall be made at the next meeting of the
Committee or be sent in writing by fax or mail to the committee together
with the reasons why reconsideration is warranted. Approval of actions
subject to Board review requires an affirmative vote by a majority and
actions not subject to Board review requires a two-thirds vote of the full
Committee in favor of both reconsideration and the suggested alternative
action.
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