Subject: FEAR: CA: FEAR Board member Mark Clausen wins second major ruling against Cal. forfeiture ordinances!
From: Brenda Grantland
Date: Fri, 19 Mar 2004 17:56:48 -0800
To: FEAR-LIST@mapinc.org, Mark Clausen

New FEAR Board member Mark Clausen today reported two new victories in his constitutional challenges to various California cities' forfeiture ordinances. 
Congratulations, Mark!  Some of Mark's motions in these cases are already in the FEAR Brief Bank, and we'll add others as soon as we can get them from him.

If anyone would like to contribute to Mark's litigation fund, please contact FEAR.  So far Mark has been financing these constitutional challenges out of his own pocket, and with cases going on in several jurisdictions at once, he could use some financial help.  Donations to FEAR Foundation are tax deductible.  You can make the donation with a credit card on the FEAR website.  If you do, please call the FEAR office or send a follow-up email to let us know you'd like the donation to go to support Mark's challenges.

Here's what Mark said about today's news:

The Sacramento Superior Court tentatively granted plaintiff's motion for summary adjudication, subject to oral argument next week, and found that Sacramento's vehicle forfeiture ordinance violates due process because it does not provide for a prompt post-seizure probable cause hearing.  This is the 2nd time the court has ruled in our favor on this issue -- the 1st being on demurrer.

The court previously rejected the pecuniary interest and excessive fine causes of action, finding the ordinance survived on its face, but could be unconstitutional as applied. 

As you will see below, we got what we were looking for in Richmond.  The Judge agreed with ALL arguments, finding the Richmond ordinance violates due process by virtue of its pecuniary incentives -- and expressly rejecting Jerrico as factually inapposite.  We also won on the probable cause hearing claim and jury trial claim.
Since it is a facial challenge ruled on as a matter of law, the order should be dispositive of the case.  We may have to move for summary judgment, but I see no reason why the court would reach a different result later -- unless the Oakland and Stockton ruling comes down in the interim from the 1st and/or 3rd districts.

The Contra Costa Superior Court, Department 33, overruled the City of Richmond's demurrer to plaintiff's challenge to Richmond's vehicle forfeiture ordinance on pecuniary interest and prompt post-seizure hearing grounds; thereby finding that, as a matter of law, the ordinance is unconstitutional for the reasons claimed.

The order is available at:
http://tr.cc-courts.org/contracosta/dept33view.asp

You will specifically note that the court accepted Krimstock and rejected Jerrico.

Mark Clausen

The ruling, which can be found by clicking on the link above, then selecting 33_032204.doc, then scrolling down to item 13,
states as follows:

13.  TIME:  9:00   CASE#: MSC03-02841

CASE NAME: TANZEL VS CITY OF RICHMOND

HEARING ON DEMURRER TO CIVIL PETITION of TANZEL FILED BY THE      CITY OF

* TENTATIVE RULING: *

 

            The Demurrer on the ground that Plaintiff lacks standing to bring this action pursuant to CCP § 526a is OVERRULED, as Plaintiff alleges that she is a taxpaying resident of this County. Cornelius v. Los Angeles County Authority (1992) 49 Cal.App.4th 1761, relied upon by Defendant, is distinguishable.  See Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 29-30. 

            The Demurrer to Plaintiff’s claims for injunctive relief is OVERRULED.   CCP § 526a specifically authorizes issuance of injunctive relief, and therefore Plaintiff does not have to make a showing of inadequate legal remedy.  See Weil & Brown, Civ. Proc. Before Trial, § 9:503. 

            The Demurrer to Plaintiff’s claims for declaratory relief is OVERRULED as an action which meets the criteria of CCP § 526a satisfies the case or controversy requirement.  Van Atta v. Scott (1980) 27 Cal.3d 424, 449-50 & n.28.

            The Demurrer to the 1st cause of action is OVERRULED.  The court is not persuaded by Defendant’s arguments under the due process factors set forth in Mathews v. Eldridge.  Nor has Defendant otherwise explained why the court’s determination in Krimstock v. Kelly (2nd Cir. 2002) 306 F.3d 40, that a prompt probable cause hearing is required, should not apply here.  As explained in Krimstock, United States v. $8,850 (1983) 461 U.S. 555, does not apply actions which challenge the lack of a prompt probable cause hearing, and therefore U.S. v. Von Neumann (1986) 474 U.S. 242, is also inapposite.

            The Demurrer to the 3rd cause of action is OVERRULED.  The sole authority cited by Defendant in its argument regarding this cause of action is Marshall v. Jerrico (1980) 446 U.S. 238, where the Court concluded that the possibility that an administrator might be tempted to devote an unusually large quantity of resources to enforcement efforts in the hope that he would ultimately obtain a higher total allocation of federal funds to his office, which might incline the administrator to assess an unjustified number of penalties and to make those penalties unduly high, was “too remote” in light of the factors existing in that case.  Those factors, however, are not the same as the factors presented under Chapter 11.94, and although the Jerrico court found it unnecessary in the case before it determine what limits there may be on a financial or personal interest of one who performs a prosecutorial function, the court specifically noted that a scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.  Therefore, this court is unable to find that Jerrico provides a sufficient basis for sustaining the Demurrer to the 3rd cause of action.

            The Demurrer to the 4th cause of action is OVERRULED on the same basis as the Demurrer to the 3rd cause of action.

            The Demurrer brought on the ground that Plaintiff’s causes of action allege that Chapter 11.94 is applied in an unconstitutional manner are deficient is OVERRULED for the reason that Plaintiff makes clear she has brought any “as applied” challenge.

The request for judicial notice is denied.  A demurrer challenges defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable.  Weil & Brown, Civ. Proc. Before Trial, § 7:8.  Although a court may judicially notice a variety of matters, however, only relevant material may be noticed.  Mangini v. R. J. Reynolds Tobacco Co.  (1994)  Cal.4th 1057, 1062.  While plaintiff apparently feels they may be “helpful” to this court, the ruling of another trial court on demurrer and the parties’ briefs on appeal are not relevant to the determination of the present Demurrer.