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October 23, 2007
The Honorable Ronald M. George, Chief Justice
The Honorable Associate Justices
Supreme Court of the State of California
350 McAllister Street
San Francisco, California 94102-4783
Re: Valerie O’Sullivan v. City of San Diego
Dear Chief Justice George and Associate Justices:
Introduction and Question Presented
As International Society for Animal Rights (ISAR) and Institute for Animal Rights Law (IARL) (a legal-action program of ISAR) understood petitioner City of San Diego’s argument below, the root question in this case has been whether a Superior Court can deprive a California city of a constitutionally-granted municipal power by construing a state statute in a manner that contradicts its plain meaning.
The Amici Curiae and their interest
Although the root legal issue in this case involves the lower courts’ interpretation of a California statute and its relationship to the City of San Diego’s constitutionally-granted municipal affairs powers, the ultimate resolution of that issue will have a substantial, even potentially fatal, impact on scores of marine mammals who inhabit the federally recognized and protected seal rookery at Casa beach in La Jolla, California.
Each of the amici curiae is a recognized animal rights organization.
SAN DIEGO ANIMAL ADVOCATES is an all-volunteer 501(c) (3) not-for-profit California membership corporation devoted to animal protection. Through education, public information, and community outreach, SDAA works to end animal abuse, neglect, and exploitation in all of its manifestations.
INSTITUTE FOR ANIMAL RIGHTS LAW was until April 2007a 501(c) (3) New York trust then registered with the Attorney General of the State of California. IARL was devoted to protecting and advancing animal rights, among them those of marine mammals. IARL had filed amicus curiae briefs and drafted legislation on behalf of animal rights causes for over a decade. Supporters of IARL resided in the City of San Diego, and were familiar with the controversy surrounding the federal recognized and protected seal rookery at Casa Beach. In April 2007 IARL was absorbed into ISAR and became a legal-action program of the latter.
INTERNATIONAL SOCIETY FOR ANIMAL RIGHTS is a 501 (c) (3) District of Columbia not-for-profit corporation registered with the Attorney General of the State of California. ISAR is devoted to protecting and advancing animal rights, among them those of marine mammals. ISAR has filed amicus curiae briefs and drafted legislation on behalf of animal rights causes for over three decades. Supporters of ISAR reside in the City of San Diego, and are familiar with the controversy surrounding the federal recognized seal rookery at Casa Beach.
The three organizations on whose behalf this letter is written in support of the City of San Diego’s Petition for Review believe that they may be of assistance to the court in deciding the important statutory interpretation and municipal powers issues that this case presents.
As evidence of those organizations’ interest in the root issue presented in this case, they offer the fact that in the fall of 2004 they sued the City of San Diego in the Superior Court, Central Division, for a declaratory judgment and other relief based on claims relating to the marine mammal problem at Casa Beach in La Jolla, California. In addition, in this case the three organizations filed a brief in support of the City of San Diego in the Court of Appeal.
The factual context of the legal issues
This action was brought “as a private attorney general by . . . a resident of the village of La Jolla . . . .” Her claim was based on Chapter 937 of the Laws of 1931 entitled “An act granting certain tide and submerged lands of the state of California to the city of San Diego, San Diego County, in said state, upon certain trusts and conditions.” Section 1 (a) of Chapter 937 states, in full:
That said lands shall be devoted exclusively to  public park,  bathing pool for children,  parkway,  highway,  playground and  recreational purposes and  to such other uses as may be incident to, or convenient for the full enjoyment of, such purposes.” (Chapter 937, Laws of 1931; “An act granting certain tide and submerged lands of the State of California to the city of San Diego, San Diego County, in said state, upon certain trusts and conditions”; Section 1 (a)).
The ruling of the Superior Court
The Superior Court interpreted this statute to require that the City of San Diego use Casa Beach “exclusively for a public park [use 1] and children’s pool [use 2].” (Emphasis added.) Thus, the Superior Court interpreted out of the statute the City of San Diego’s constitutionally-granted municipal power to use its Casa Beach for any of the several other trust purposes specified by the State of California in Chapter 937 of the Laws of 1931.
The ruling of the Court of Appeal
In reviewing the Superior Court’s interpretation of the statute—which empowered the City of San Diego to make six express uses of Casa Beach, and any number of other uses that “may be incident to, or convenient for the full enjoyment of, such purposes”—the Court of Appeal held that instead of the statute’s plain and unambiguous language controlling, the lower court’s divining of “legislative intent” controlled the construction—with the result that the City of San Diego could use Casa Beach for only two of the statutorily-granted purposes: “exclusively for a public park [use 1] and children’s pool [use 2].” (Emphasis added.)
The City of San Diego’s
Municipal Affairs power
As a charter city recognized in the California Constitution (Cal. Const. art. XI, §§ 2 , 3) , Oakland [here, the City of San Diego] is empowered to govern its own “municipal affairs.” In this regard, article XI, section 5 , subdivision (a), reads in relevant part: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitationsprovided in their several charters and in respect to other matters they shall be subject to general laws.” This constitutional “home rule” doctrine reserves to charter cities the right to adopt and enforce ordinances, provided the subject of the regulation is a “municipal affair” rather than being a subject of “statewide concern.” (Johnson v. Bradley (1992) 4 Cal.4th 389, 399, 14 Cal.Rptr.2d 470, 841 P.2d 990; accord, Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 45, 112 Cal.Rptr.2d 677.) (Cobb v. O’Connell, 36 Cal Rptr 3d 170, 173 (2000))
Pursuant to the authority granted the City of San Diego by the Constitution of the State of California, Article I, Section 2, of the City Charter provides that:
The City of San Diego, in addition to any of the powers now held or that
may hereafter be granted to it under the Constitution or Laws of this
State, shall have the right and power to make and enforce all laws and
regulations in respect to municipal affairs, subject only to the restrictions
and limitations provided in this Charter . . . . (Emphasis added.)
Pursuant to the power granted it in its Charter, the City of San Diego has allowed, indeed encouraged, Casa Beach to be used “exclusively” (meaning: not for purposes other than those specified by Chapter 937; “limited to one thing and excluding everything else” ) for:
Further pursuant to the authority of its City Charter, and in aid of its duty to
manage Casa Beach in accordance with Chapter 937, the City of San Diego enacted two ordinances directly related to Casa Beach.
One is Municipal Code Section 63.0102 (b) (10), which provides that “[i]t is unlawful for any person within any public . . . beach areas within the City of San Diego to do any of the acts enumerated in Section 63.0102(b),” which subsection provides that “[i]t is unlawful to . . . disturb, or maltreat any bird or animal, either wild or domesticated . . . .”
The other ordinance is Municipal Code Section 63.20.1, which provides that “[i]t is the duty of the Park and Recreation Director, as the City Manager’s designee, to enforce the provisions of these sections; and all employees of the Park and Recreation Department charged with the duty of maintaining peace, order and safety in beach areas are empowered to assist the police officers of The City of San Diego in the enforcement of the provisions of these sections including the power to make arrests for violation hereof.”
Viewed together, the California Constitution, the San Diego City Charter, the two Municipal Ordinances, and the City’s custom and usage regarding Casa Beach, convincingly establish that the City has constitutionally and legally assumed and exercised a municipal affairs power over Casa Beach.
In assuming and exercising that power, the City has merely acted pursuant to the discretion that has been delegated to it—a discretion “not subject to control by the court, except to prevent an abuse by the trustee of his discretion.”
The Superior Court’s erroneous interpretation of Chapter 937, affirmed by the Court of Appeal—that “[t]he Trust is specific. It requires the Trust lands to be used for a children’s pool,” and that Casa Beach is to be used “exclusively for a public park and children’s pool”—manifestly strips from the City of San Diego’s constitutionally-granted municipal affairs powers. (Emphasis added.)
Reason for granting the petition
The basic, traditional canons of statutory construction need no reiteration here.
This case is important for the State of California because in violating those canons the Superior Court, as affirmed by the Court of Appeal, deprived the City of San Diego of a constitutionally-granted municipal power, thus giving rise to the question posited supra: Whether a Superior Court can deprive a California city of a constitutionally-granted municipal power by construing a state statute in a manner that contradicts its plain meaning.
If a Superior Court possesses the power to deprive a California city of a constitutionally-granted municipal power by construing a state statute in a manner that contradicts its plain meaning, the statewide implications for every municipality are deep and wide. Indeed, possession of that power dangerously threatens the delicate separation of powers balance embodied in the Constitution of the State of California.
For this reason, the City of San Diego’s petition should be granted.
/s/ Henry Mark Holzer
HENRY MARK HOLZER
Member of the New York Bar