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Added 6-21-11
Daly City Documents -
Set # 3, Cont'd
2011
Appeal Decision - People v. Chew
This case is
an example of a foundational defense (see Defect # 10 -
B on the Home page).
To my
knowledge this is only the fifth favorable Appellate Division decision,
anywhere in
California,
regarding the legality of a cost-neutral contract.
This decision is final but has not been published, so cannot be cited
as precedent in other cases, except
possibly in San Mateo County "cost-neutral" cities such as
Redwood City*,
Millbrae*, South San Francisco*, Daly City, Menlo Park, and San
Mateo*.
The general issue of which
decisions get published, and which don't, is under study. See nonpublication.com
for more information.
*On Nov. 10,
2009 the City of South San Francisco may have removed
cost-neutrality from its
contract, on Nov. 16,
2009 the City of San Mateo removed cost-neutrality from its contract,
in early 2010 the City of Millbrae removed cost-neutrality from its
contract, and on Nov. 22, 2010 Redwood City removed cost-neutrality
from its
contract.
In Dec. 2009 a pro per defendant (Lopez) beat his Daly City
red light camera ticket at appeal, garnering from Appellate Division
Judge Mark Forcum a one-word decision, "reversed."
(The Lopez case is on my site at http://highwayrobbery.net/redlightcamsLawaaIndexTransBrfsDecisions.html
.)
Then, beginning
Mar. 2010, another pro per defendant (Chew) fought, and then appealed,
her Nov. 2009 Daly City ticket using the same "cost neutral is illegal"
argument as had Lopez. But in Chew's case Judge Forcum affirmed,
again just one word, on Jan. 4, 2011. On Jan. 18 Chew petitioned
for reconsideration, pointing out the lack of consistency between the
two appeal decisions. She got no reply, so petitioned to the
Court of Appeal in San Francisco, which refused to take the case.
With that, Chew thought it was over, done. Not so. In May
2011, out of the blue, Judge Forcum sent Chew a notice that he had
granted the Jan. 18 request for reconsideration (the notice didn't say
why), and that there would be a hearing in the Appellate Division, on
June 10.
At the June 10 hearing Chew was present, and represented by
Emeryville-based
attorney Ken Schmier. Judge Forcum said that at the time he
decided the Chew appeal he was under the impression that because of the
earlier Lopez appeal, Daly City had revised its contract and had
removed the cost neutrality clause. He apologized for the
error. He issued Chew a revised decision, just one word, reversed.
Documents available in People
v. Chew:
Statement
on Appeal - Court's Notes, Officer's Statement and Packet
Request
for Stay (To Retain Traffic School Privilege Pending Resolution of
Appeal)
These
materials may be freely copied and distributed, so long
as credit is given
to highwayrobbery.net .
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