citizen lawsuits | Discoveryink

By Anabel Sosa : sfgate – excerpt

A small farm community an hour from Fresno is tangled up in an ongoing legal battle that has erupted into disarray after its mayor and city council, except for one member, were recalled in a special election that they claim was illegal. The councilmembers and mayor are now refusing to leave office.

A special election was held in April after a citizen-led campaign pushed to oust four of the five members of the Avenal City Council after disagreements over a new fire protocol policy boiled over, according to local reporting from the Fresno Bee.

During the April 28 special election, residents voted in favor of the recall. Kings County officially certified the results in May after more than 75% of voters agreed to recall Mayor Alvaro Preciado and councilmembers Leticia Gamez, David Reynosa and Pablo Hernandez.

The effort first came into swing last year after the council voted to create its own fire department and hire a fire chief, which would more than double the annual fire fees.

But those members refuse to leave office. They maintain that only the city, not the county, has the jurisdiction to call a special election. The last remaining councilmember called the election legitimate and asked for his colleagues to step down, according to local Fox news affiliate KMPH-TV.

After the members rejected the recall, they still met last Thursday for their normal meeting, resulting in an uproar. Residents were reportedly furious during that June 11 meeting. Some shouted at the councilmembers, according to KMPH-TV, which reported one person saying they were corrupt and “worse than Trump.”…

The only way for those members to permanently be removed is through a legal process called quo warranto, which is already underway, according to an update from the city on Monday, and approval from the attorney general. SFGATE reached Attorney General Rob Bonta’s office to ask if it was looking into the matter but did not hear back in time for publication… (more)

‘Netflix’ worthy dispute; What’s going on in Avenal?

What may this mean for other recall efforts in California if this case is not settled in favor of the citizens? And where will California Attorney General Bonta stand on this issue?

By Tim Redmond : 48hills – excerpt

Retired real estate lawyer weighs in on state law.

I love letters to the editor. Here’s one from someone who actually knows the answer to a question I raised:

In “Peskin, Chan want to know if SF can sue the state over impossible housing rules,” Tim Redmond asks, “Could a San Francisco citizen, or organization [as distinguished from San Francisco itself], sue? ‘That,’ said Peskin, ‘is a very good question.’”

The answer is that any citizen who has paid taxes to the state can sue the state (or an agency thereof) to restrain illegal, injurious, or wasteful expenditures under section 526a of the Code of Civil Procedure. Any such lawsuit needs to be brought in state court because federal courts have strict standing requirements…

The portion of SB 423 singling out San Francisco is illegal because it violates the California Constitution, Article IV, Section 16(b): “A local or special statute is invalid in any case if a general statute can be made applicable.” A taxpayer action could seek a declaration that this portion of SB 423 is an invalid special statute. Notably, there isn’t even language in the bill, as there is in other special statutes, purporting to justify it as addressing a problem unique to San Francisco.

A taxpayer action could also seek a broader declaration that the state housing laws do not take precedence over San Francisco zoning laws, because as a charter city, San Francisco has a right to home rule protected by the California Constitution. This power includes zoning. A conflicting state law, even on a matter of statewide concern, only prevails over home rule if the law is reasonably related to resolution of a matter of statewide concern and narrowly tailored to avoid unnecessary interference in local governance.

The state housing laws fail this test for numerous reasons. Studies by the Terner Center show the laws have failed to achieve their goals and scholars have described them as “ad hoc and not model based.”

Nick Waranoff

Nick Waranoff is a retired real estate lawyer.