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
[[End]]
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