Court of Appeal Case No. G035169
Appellate Division of the Orange
County Superior Court Case No. AP-14168
Honorable Charles Margines, Dept. Cl

IN THE

SUPREME COURT OF CALIFORNIA

THE CITY OF COSTA MESA,

Petitioner

v.

SUPERIOR COURT OF THE STATE OF CALIFORNIA, ORANGE COUNTY,
Respondent.

[[  ]] FISCHETTI,
Real Party in Interest. 

PETITION FOR REVIEW

AND REQUEST FOR IMMEDIATE STAY

Kimberly Hall Barlow, City Attorney
State Bar No. 149902
Marianne Milligan, Sr. Deputy City Attorney State
Bar No. 170740
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92628-1200
Telephone:        714-754-5399
Facsimile:         714-754-4949
Attorneys for Petitioner
CITY OF COSTA MESA

PETITION FOR REVIEW

TO THE HONORABLE CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:

Petitioner City of Costa Mesa (“Petitioner” or “City”), respectfully petitions this honorable court for review and an immediate stay order pursuant to the California Rules of Court, Rule 28 (a)(1). On March 2, 2005, the Court of Appeal, Fourth Appellate District, Division Three (“Court of Appeal”), while granting City’s Request for Judicial Notice, denied the City’s Request for Immediate Stay. The following day, March 3, 2005, the Court of Appeal, denied Petitioner’s Writ of Mandate/Prohibition.

A petition for rehearing was not filed because no statement of decision was rendered by the Court of Appeal with which to establish a basis for a request for rehearing. Therefore, a petition for rehearing would have been futile. 

STATEMENT OF ISSUES PRESENTED FOR REVIEW

This case presents serious and urgent questions as to the interpretation of California Vehicle Code § 21455.5 et. seq. which could affect many cities throughout California.

The issues presented are:

1.         Whether California Vehicle Code § 21455.5(c) prohibits more than one governmental agency from operating an automated enforcement system.

2.         Whether California Vehicle Code § 21455.5(b) requires a 30-day notice and warning period before the installation of each individual “approach” or only before the installation of a city’s overall automated enforcement “program”.

Therefore, it is respectfully requested that this Court accept this case for review to settle these important questions of law.

IMMEDIATE STAY ORDER REQUESTED

The Court of Appeal, Fourth Appellate District, Division Three has, by decision dated March 3, 2005, denied Petitioner’s Petition for Writ of Mandate/Prohibition. The underlying decision by the Appellate Division of the Superior Court, Orange County (“Appellate Division”) has effectively shut down all operations of the City’s automated enforcement system (“AES”) at three of the busiest intersections in the City. Not only is this costing the City and taxpayers hundreds of thousands of dollars a month, but the safety aspects of the AES cannot be used.

The issues presented are matters of statewide importance as AES are used by numerous governmental agencies throughout the State.

It is the City’s contention that not only is the Appellate Division’s decision erroneous, but that issuance of an immediate stay order, staying enforcement of the Appellate Division’s order pending a determination by this Court of these very important issues presented by this Petition is necessary. 

GROUNDS FOR REVIEW

 The issues presented by this Petition are appropriate for review by this Court pursuant to California rules of Court 28(b)(1) to settle an important question of law in that it decides a question of first impression in the interpretation of California Vehicle Code § 21455.5 et. seq. and further involves a factual situation likely to be the subject of persistent litigation in the future.

Governmental agency operations of AES throughout the State are growing on a daily basis. Many intersections in which these AES cameras are installed are or may be at intersections “controlled” by two separate governmental agencies. The Appellate Division’s decision has the potential of impacting numerous governmental agencies throughout California. AES that have already been installed, at great cost to cities and other governmental agencies (and therefore the taxpayers) have already been affected. If this ruling stands, many agencies may be faced with the additional high cost of relocating these AES cameras from these “dual” controlled intersections. In addition, the ultimate goal of reducing red light violations and the deadly accidents they cause will be completely frustrated. )

Furthermore every agency contacted by and who has made contact with Petitioner regarding this ruling has advised Petitioner that their agency had also interpreted § 21455.5(b) as only requiring a public notice and 30-day grace period for the installation of the AES equipment at the first intersection at which that agency installed AES cameras. If this ruling stands, again, many agencies throughout California will be affected and may be faced with substantial costs in complying with the Court’s ruling in trying to “un-ring the bell”. 

FACTS AND PROCEDURAL HISTORY

 1.         On or about September 17, 2001, the City Council of the City of Costa Mesa held a public hearing and the City Council approved the establishment of a red light automated enforcement system citywide at various intersections.

2.         On or about May 21, 2001 a 30-day warning period was placed into effect for the first intersection where the automated red light enforcement equipment was installed at Harbor and Adams in the City of Costa Mesa. Additionally, press releases were issued informing the public of the new system.

3.         On or about October 3, 2003, the City of Costa Mesa installed an automatic red light enforcement camera (the “Camera”) at the intersection of Newport Boulevard and 19th Street pursuant to California Vehicle Code section 21455.5.

4.         On or about January 12, 2004, Defendant was issued a citation (No. CM46167PE) for violation of California Vehicle Code section 21453(c), entering an intersection on a red light. The Camera at the southbound left turn lane of Newport Boulevard and 19th Street captured said violation.

5.         On or about March 1, 2004, in Department H14 of the Orange County Superior Court, Harbor Justice Center, Defendant appeared and entered a plea of not guilty and a trial date was set for April 15, 2004.

6.         On or about April 15, 2004, the trial was held in Department H14 of the Orange County Superior-Court, Harbor Justice Center before the Honorable Mark J. Sheedy, Commissioner.

7.         Costa Mesa Police Officer Wadkins was the only representative of the City at the trial and testified on behalf of the People at the trial.

8.         Defendant testified on his own behalf.

9.         Commissioner Sheedy took the matter under submission and later that same day, found the Defendant guilty of the charge of a violation of California Vehicle Code section 21453(c), entering an intersection on a red light and ordered payment of a fine plus penalties and assessments totaling $321.00.

10.       Defendant thereafter filed a Notice of Appeal on May 13, 2004 and a Proposed Statement on Appeal on May 28, 2004.

11.       City filed a Proposed Amendment to Proposed Statement on Appeal on June 14, 2004.

12.       The Court did not notify the City regarding the hearing date for the proposed settled statement and proceeded to final the Engrossed Statement (“Settled Statement” or “SS”) at a hearing on July 7, 2004 with only the Defendant present. Although the City had filed a proposed amendment, the Court failed to take into consideration the City’s proposed amendment.

13.       The Settled Statement was certified by Commissioner Sheedy and made a part of the record on July 13, 2004.

14.       On September 17, 2004, the Appellate Division of the Orange County Superior Court (“Appellate Division”) dismissed Defendant’s appeal for having failed to comply with the briefing schedule.

15.       On October 27, 2004, Defendant was heard on his motion to vacate the Dismissal, which was granted. At that same hearing, the City requested that the Settled Statement be remanded to the trial court to allow its participation. This motion was denied.

16.       A new briefing schedule was ordered and complied with by the parties and the hearing on appeal was set for January 27, 2005.

17.       On January 27, 2005, the parties submitted on their briefs and no oral arguments were heard.

18.       The Appellate Division rendered its decision on or about January 31, 2005. A true and correct copy of this decision is attached hereto as Exhibit “A” and incorporated herein by reference. The Appellate Division’s decision reversed defendant’s conviction. The Appellate Division ruled that California Vehicle Code Section 21455.5(c) requires that “a” single governmental agency must undertake all the listed activities comprising operation of an AES and since Petitioner shared the control of the intersection with Caltrans, Petitioner had violated section 21455.5(c). Further, the court found Petitioner had not complied with section 21455.5(b) because City failed to implement a separate 30-day grace period upon the installation of an AES cameras at each intersection. City was not served with a copy of said decision. Despite representatives from the City Attorneys’ Office having personally appeared at the hearing on appeal and having filed briefs in this matter, the Court erroneously mailed the Notice of Entry of Judgment of the Appellate Division’s decision to the Orange County District Attorney’s Office and not to the City as it should have.[1]

19.       City filed a timely Petition for Rehearing and Application for Certification on February 24, 2005, which was summarily denied as being untimely by the Appellate Division on February 28, 2005. A true and correct copy of this decision is attached hereto as Exhibit “B” and incorporated herein by reference.

20.       On March 1, 2005, the City filed a Writ of Mandate/Prohibition and Request for Immediate Stay of the Appellate Division’s decision as well as a Request for Judicial Notice of the Appellant’s Opening Brief, Respondent’s Brief and Appellant’s Response to Respondent’s Brief.

21.       On March 2, 2005, the Court of Appeal, Fourth Appellate District, Division Three (“court of Appeal”), while granting City’s Request for Judicial Notice, denied the City’s Request for Immediate Stay. A copy of the Court’s decision is attached to this petition as Exhibit “C”. [[The decision says, in its entirety, "Petitioner's request that the court take judicial notice of the appellate briefs filed in AP14168 is GRANTED.  Petitioner's request for a stay of "all further proceedings in the Respondent and Trial Courts," is DENIED."]]  The following day, March 3, 2005, the Court of Appeal, denied Petitioner’s Writ of Mandate/Prohibition. A copy of the Court’s decision is attached to this petition as Exhibit “D”.  [[The decision says, in its entirety, "The petition for a writ of mandate and or prohibition is DENIED."]]

22.       On March 9, 2005 the City filed a Request for Reconsideration of its Petition for Rehearing and Application for Certification with the Appellate Division, based on a violation of City’s Due Process rights (not having been served with the Appellate Division’s ruling), which is still under consideration by the Appellate Division.

-----------

Footnote

[1]  The Appellate Division finally served a copy of the Appellate Division ruling on Petitioner on March 8, 2005, after Petitioner’s Petition for Writ of Mandate and Request for Stay had been denied by the Fourth District Court of Appeal, and after the Appellate Division had denied the Petition for Rehearing and Request for Certification on timeliness grounds.

----------

23.       Petitioner alleges and believes that the Appellate Division erroneously interpreted California Vehicle Code § 21455.5 et. seq. and such interpretation has a substantial impact on not only City but on numerous other governmental agencies throughout California which have installed automated enforcement systems.

24.       The contentions in support of this Petition are fully set forth in the accompanying Memorandum of Points and Authorities which are incorporated by reference herein.

25.       Because the Appellate Division failed to give the City proper notice of its decision in violation of City’s Due Process rights, Petitioner has not been able to fully exhaust a!! potential rehearing measures prior to filing its Petition for Writ of Mandate and this Petition for Review of its denial. However, Petitioner had no direct right of appeal of the Appellate Division’s decision; its only remedy was to seek review by Petition for Writ of Mandate or Prohibition, which was summarily denied. While the City has filed a Request for Reconsideration in connection with the Appellate Division’s decision, as to which no decision has yet been made by the Appellate Division, Petitioner must seek review of the denial of its Petition for Writ or potentially be barred from obtaining any further review.

This Petition is the result of the Court of Appeal’s decision on Petitioner’s Writ.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF PETITION FOR REVIEW 

I. STATEMENT OF JURISDICTION

When the appellate department of a superior court has abused its discretion or there are other extraordinary circumstances and all avenues of appeal have been exhausted, a petitioner may be entitled to a writ of mandate. See Schreiber v. Superior Court, 3 Cal. 3d 507, 517, 90 Cal. Rptr. 729, 735 (1970).

Petitioner has exhausted its administrative remedies in this matter by filing a timely Petition for Rehearing and Application for Certification of this matter to the Court of Appeal. Petitioner filed its Writ before a ruling had been issued by the Appellate Division on the Petition for Rehearing and Application for Certification. Since the Appellate Division’s ruling may have become final before it issued a ruling on Petitioner’s Petition for Rehearing and Application for Certification, Petitioner’s only remedy was to file a Petition for Writ of Mandate/Prohibition and an application for Stay of the Appellate Division’s ruling to ensure that these matters of statewide importance were heard and ruled upon by the Court of Appeal.

In addition, because the right to petition for rehearing is not a direct right of appeal, and does not constitute a plain, speedy or adequate remedy, it gave the Court of Appeal the right to hear and consider Petitioner’s Writ and Request for Stay.  Knudson v. Superior Court, San Diego County, 267 Cal. App. 2d 876, 880, 73 Cal. Rptr. 513 (1968). As a result City has the right to file this Petition.

Because Petitioner has no plain, speedy or adequate remedy at law save an extraordinary Writ Petition, this Court should consider this Petition for Review of the Writ of Mandate and/or Prohibition.

 II.        THE COURT HAS ERRONEOUSLY INTERPRETATED CALIFORNIA VEHICLE CODE SECTION 21455.5(c) TO ONLY ALLOW A “SINGLE” GOVERNMENTAL AGENCY TO OPERATE AN AUTOMATED ENFORCEMENT SYSTEM.

California Vehicle Code § 21455.5(c) states:

“Only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system. As used in this subdivision, ‘operate’ includes all of the following activities: . . .“

The Appellate Division has misinterpreted § 21455.5(c) to require that only” ‘a’ single governmental agency” (emphasis added) may operate an automated enforcement system ‘AES”). The Appellate Division’s ruling also fails to recognize or acknowledge that Caltrans is a governmental agency. There is no requirement anywhere in this statutory scheme that two or more governmental agencies may not operate an AES together — indeed, Caltrans itself, while a governmental agency, is not a law enforcement agency; the City of Costa Mesa is. The Appellate Division’s interpretation of this provision effectively eliminates the language “in cooperation with a law enforcement agency” from the statute, rendering them meaningless. A Court should not interpret statutory language in a manner that renders language surplusage or deprives it of meaning. Dyna-Med. Inc. v. Fair Employment and Housing Comm., 43 Cal. 3d 1379, 1386-87, 241 Cal. Rptr. 67, 70 (1987) (“A construction making some words surplusage is to be avoided.”). The Appellate Division’s interpretation of this provision also fails to recognize that there are hundreds if not thousands of intersections throughout California that have shared “control” of an intersection with or without written agreements between the agencies in question. Every intersection that meets at the borders of two cities, a city and county jurisdiction or county and state jurisdiction must by their very nature have shared “control” of that intersection.

In interpreting this statute in this narrow way, the Appellate Division failed to recognize the interdependence governmental agencies have in numerous circumstances. For example, many agencies have no written agreement amongst themselves, but provide mutual aid to not only surrounding agencies, but out of state during times of national or even international emergencies. If taken to its logical conclusion, the Appellate Division would find that this mutual aid is not permitted because there is no written contract for such services.

In interpreting a statute, “If possible, the words should be interpreted to make them workable and reasonable [citations], practical [citation], in accord with common sense and justice, and to avoid an absurd result [citations].” Halbert’s Lumber. Inc. v. Lucky Stores. Inc.. 6 Cal. App. 4th 1233, 1239-40 (1992). To interpret this provision as limiting the operation of an AES to only a “single” governmental agency, as the Appellate Division has in this case is completely contrary to both practicality and the statutory purpose of this provision. If the Appellate Division’s interpretation is correct, AES would not be allowed at thousands of intersections throughout California that may benefit from such installations, which is completely contrary to the Legislature’s intent to enable governmental agencies to implement these systems for the health, safety and welfare of their citizens.

The purpose of the requirement that only governmental agencies can “operate” an AES is to prevent the vendor of the system from jeopardizing the integrity of the traffic signals or the yellow phase times. The Appellate Division ignored that Officer Wadkins testified “as to the foundational requirements under § 21455.5, § 21455.6 and California Vehicle Code §21455.7.” SS page 1, lines 23-24. This includes the fact that the signal timing was verified to be compliant with § 21455.7 prior to operation of the automated enforcement system for each monitored approach. Caltrans, a governmental agency, in conjunction with the City of Costa Mesa, another governmental agency and a law enforcement agency, does in fact have “control” over all of the activities listed in § 21455.5(c). There is nothing in this provision that specifically states or even implies that only a “single” governmental agency can operate an AES. To the contrary, common sense and Legislative intent warrant just the opposite interpretation, which is that more than one governmental agency can operate an AES with or without a written agreement, so long as the provisions of § 21455.5(c) are satisfied. Officer Wadkins testified that these provisions had been met and there was no contradictory evidence submitted. Therefore, the trial court's decision on this matter was correct

Because of the Appellate Division’s erroneous interpretation of this provision, this Court should grant this Petition and direct the Court of Appeal to grant the Writ and reverse the Appellate Division’s decision.

III. THE COURT HAS ERRONEOUSLY INTERPRETATED CALIFORNIA VEHICLE CODE SECTION 21455.5(b) IN RULING THAT A 30-DAY GRACE PERIOD MUST BE PROVIDED UPON THE INSTALLATION OF AES CAMERAS AT EACH INTERSECTION.

Section 21455.5(b) provides:

“Prior to issuing citations under this section, a local jurisdiction utilizing an automated traffic enforcement system shall commence a program to issue only warning notices for 30 days. The local jurisdiction shall also make a public announcement of the automated traffic enforcement system at least 30 days prior to the commencement of the enforcement program.” (Emphasis added.)

“The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]” Dyna-Med. Inc. v. Fair Employment and Housing Comm.. 43 Cal. 3d 1379, 1387, 241 Cal. Rptr. 67 (1987). Therefore, this provision must be read in conjunction with the entire statutory scheme.

The entire statutory scheme refers time and time again to the “system.” For example, § 21455.6 states that “A city council or county board of supervisors shall conduct a public hearing on the proposed use of an automated enforcement system. . . .“ (emphasis added); § 21455.5(c) provides that “Only a governmental agency, in cooperation with a law enforcement agency, may operate an automated enforcement system.” (emphasis added); § 21455.5(d) states “The activities listed in subdivision (c) that relate to the operation of the system. . . (emphasis added); § 21455.5(a)(2) states “If it locates the system at an intersection, and ensures that the system meets the criteria. . .“ (emphasis added). In fact, Webster’s Dictionary defines a “system” as” a regularly interacting or interdependent group of items forming a unified whole.” Merriam-Webster’s Collegiate Dictionary 1194 (10th ed. 1993).

In contrast to the use of the word “system” when referring to a citywide program or system, when the Legislature referred to individual cameras, it uses the word “equipment”. Had the Legislature intended that the term “system” refer to each individual camera, it would have consistently used one word or the other. However, the Legislature has clearly distinguished between “system” and “equipment” and consistently differentiates between these two distinct words throughout the statutory scheme. it is obvious that when using the term “system”, the Legislature is referring to the overall coordination and organization of all the Automatic Enforcement cameras throughout the entire agency system boundaries. When it uses the term “equipment”, it is referring to each individual camera that together make up the “system”. (See § 21455.5(2)(B) and § 21455.5(2)(C) [ensuring that the equipment is regularly inspected; certifying that the equipment is properly installed.. ] When statutory language is clear and unambiguous, there is no need for construction. People v. Belleci. 24 Cal. 3d 879, 884, 157 Cal. Rptr. 503, 507 (1979).

In addition to the use of the word “system” in this provision, the Legislature also used the term “program”. It did not state that the 30-day notice must be commenced before the enforcement of each camera at each intersection or approach, but at the beginning of the “program.” One of the plain meanings of the word “program” is “a plan or system under which action may be taken toward a goal.” Merriam-Webster’s Collegiate Dictionary 929 (10th ed. 1993). There is nothing in the statutory language that could imply that the .Legislature intended a governmental agency to provide 30-day notices for each installation segment of an automated enforcement system. The use of the word “program” implies that the 30-day notice be provided when a city has a “plan” for the overall use of AES’ throughout the city. That City’s “plan” was in place at the first public hearing on the matter. Therefore this Court should find that the plain meaning of this provision is that the 30-day notice is intended to apply to the City’s first installation and use of an AES in the City and not for individual installations of camera equipment at various intersections in the City.

It is clear by the plain meaning that the use of the words “system” and “program” used throughout the statutory scheme means the agency’s overall plan for installations of a number of AES cameras at designated intersections throughout the agency’s jurisdiction. It is simply implausible to believe that the Legislature intended to interpret this statutory scheme to require that a city council must conduct a public hearing prior to the installation of AES equipment at each intersection, when at the initial public hearing required, the number and location of the AES installations were discussed, and ultimately a single contract for installation and operation of the City’s entire system was executed with an AES vendor. Under the Appellate Division’s theory, the City cannot hold one public hearing and execute one contract for installation of cameras; it must hold as many public hearings as there are intersections to be incorporated into the AES, and it must execute as many contracts as there are intersections to be included in the AES program. Based on the entire statutory scheme, it is clear that the Legislative intent was to provide for the public notice and 30-day grace period only upon the installation of the first AES equipment in the City.

There is no evidence presented to contradict the fact that the City did in fact comply with both the public notice and 30-day grace period upon installation of AES equipment at the first intersection in the City as required by § 21455.5.  Settled Statement, page 1, lines 26-28.

Because of the Appellate Division’s erroneous interpretation of this provision, this Court. should grant this Petition and direct the Court of Appeal to grant the City’s Petition for Writ of Mandate and reverse the Appellate Division’s decision.

IV. CONCLUSION

Based on the foregoing, Petitioner respectfully requests that this Court issue an immediate stay of the Appellate Division’s decision and further grant this Petition for Review as prayed and issue an order directing the Court of Appeal to grant the Petition for Writ of Mandate compelling the  ellate Division of the Superior Court to set aside its order and reinstate Defendant’s conviction.

Dated:  March 14, 2005

Respectfully submitted,

City of Costa Mesa
By: [sig]           
Marianne Milligan, Sr. Deputy City Attorney
 
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