City's Petition for Rehearing 

FILED
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER
FEB 24, 2005

KIMBERLY HALL BARLOW, CITY ATTORNEY (SBN 149902)
MARIANNE MILLIGAN (SBN 170740)
CITY OF COSTA MESA
77 Fair Drive
Costa Mesa, CA 92626
Phone:  714-754-5399
Fax:      714-754-4949

Attorneys for City of Costa Mesa

APPELLATE DIVISION OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

APPELLATE CASE NO.: AP-14168
SUPERIOR COURT / CITATION NO.:  CM46167PE

PETITION FOR REHEARING AND APPLICATION FOR CERTIFICATION

PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff and Respondent
vs.
[[  ]] FISCHETTI
Defendant and Appellant.

Respondent herein petitions this Honorable Court for a rehearing of the above-entitled matter. Alternatively, respondent requests that this matter be certified for transfer to the Court of Appeal pursuant to Rules of Court 62 and 63(a).

ARGUMENT

I.  THE COURT HAS ERRONEOUSLY INTERPRETATED [[sic]] CALIFORNIA VEHICLE CODE SECTION 21455(c) TO ONLY ALLOW A “SINGLE” GOVERNMENTAL AGENCY TO OPERATE AN AUTOMATED ENFORCEMENT SYSTEM.

California Vehicle Code § 2 1455(c)[1] 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 Court has misinterpreted § 21455(c) to require that only” ‘a’ single governmental agency” (emphasis added) may operate an automated enforcement system (“AES”). The Court’s ruling also fails to recognize or acknowledge that Caltrans a governmental agency. There is no requirement anywhere in this statutory scheme that indicates that no more than one governmental agency may operate an AES together. The Court’s interpretation of this provision 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 Court fails 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 Court would find that this mutual aid is not permitted because there is no written contract for such services and is therefore unreliable.

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

[[Footnotes]]

[1]  All further references are to the California Vehicle Code unless otherwise specified.

[[Footnotes end]]

justice, and to avoid an absurd result [citations].” Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App. 4th 1233, 1239-1240. 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 Court’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.

As indicated in Respondent’s original Brief, 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 Vehicle Code §~ 21455.5, 21455.6 and 21455.7.” See 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 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 Court’s erroneous interpretation of this provision, Respondent is entitled to a rehearing of this matter.

II.  THE COURT HAS ERRONEOUSLY INTERPRETATED [sic] CALIFORNIA VEHICLE CODE SECTION 21455(b) IN RULING THAT A 30-DAY GRACE PERIOD MUST BE PROVIDED UPON THE INSTALLATION OF AN AES TO 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 Com. (1987) 43 Cal. 3d 1379, 1387. 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... may operate an automated enforcement system.” (emphasis added); § 2 1455.5(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.” See 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 AES throughout the entire agency. 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 (C) [ensuring that the equipment is regularly inspected; certifying that the equipment is property installed...] When statutory language is clear and unambiguous, there is no need for construction. People v. Belleci (1979) 24 Cal. 3d 879, 884, 157 Cal. Rptr. 503, 507. It is clear by the plain meaning that the word “system” used throughout the statutory scheme means the agency’s overall plan for installations of a number of AES 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 an AES at each intersection, when at the initial public hearing required, the number and location of the AES installations were discussed. 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 installation in the City.

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

Therefore, because of the Court’s erroneous interpretation of this provision, Respondent is entitled to a rehearing of this matter.

III.  THIS COURT SHOULD CERTIFY THE PRESENT CASE FOR TRANSFER TO THE COURT OF APPEAL IN ORDER TO SETTLE IMPORTANT QUESTIONS OF LAW.

In the event that the Petition for Rehearing is denied, it is Respondent’s position that this case meets the criteria for certification to the Court of Appeal pursuant to California Rules of Court 62 and 63(a). The Appellate Division’s ruling in this matter embodies an “important question of law” within the meaning of rule 63(a) in that it decides a question of first impression in the interpretation of California Vehicle Code § 21455 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 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 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 from these “dual” controlled intersections.

Furthermore, every agency contacted by and who has made contact with Respondent regarding this ruling has advised Respondent 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 at the first intersection at which that agency installed an AES. 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”.

X. CONCLUSION.

Based on the foregoing, Respondent respectfully requests that this Court grant a rehearing or, in the alternative, that the instant case be certified for transfer to the Court of Appeal.

DATED: February 24, 2004 [[sic - 2005]]      

CITY OF COSTA MESA

By: [[signature]]
MARIANNE MILLIGAN
Sr. Deputy City Attorney

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