Horton v. City of Oakland

• Decision Date: 24 July 2000
• Citation: 98 Cal.Rptr.2d 371,82 Cal.App.4th 580
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 1 Dist. 2000) SAM C. HORTON et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents. A085460 Filed

98 Cal.Rptr.2d 371 (Cal.App. 1 Dist. 2000)

SAM C. HORTON et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents.

A085460

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT DIVISION THREE

Filed 7/24/00

(Alameda County Super. Ct. No. 7988967)

Trial judge: Honorable Henry E. Needham, Jr.

American Civil Liberties Union Foundation of Northern California, Inc., Alan L. Schlosser, John M. Crew; Michael B. Anderson for Appellants and Plaintiffs.

Larson & Weinberg, and Nina Wilder for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Appellant.

Jayne Williams, City Attorney (Oakland), Joyce M. Hicks, Assistant City Attorney, Marcia L. Meyers, Supervising Deputy City Attorney; Thomas J. Orloff, District Attorney (Oakland), Russell J. Giuntini, Deputy District Attorney, and Armando G. Cuellar, Jr., Deputy District Attorney, for Defendants and Respondents.

CERTIFIED FOR PUBLICATION

Corrigan, J.

Appellants Sam C. Horton and Cheri Bryant, Oakland residents and taxpayers, brought this action to challenge a city ordinance authorizing civil forfeiture of vehicles involved in solicitation of prostitution or acquisition of controlled substances. Appellants argued unsuccessfully below that state law preempts the ordinance. We affirm the trial court's judgment in favor of the City.

Factual and Procedural Background

The ordinance was enacted in 1997 after citizens complained about the nuisance created by persons driving through neighborhoods to buy drugs or solicit acts of prostitution. The ordinance authorizes the seizure, forfeiture and sale of vehicles used to solicit prostitution or acquire drugs.¹ (Oakland Mun. Code, ch. 3, art. 23, 3-23.01-09.)

Appellants filed a petition for writ of mandate and complaint for declaratory and injunctive relief enjoining respondents from enforcing the ordinance or expending public funds to do so. The superior court denied the writ, ruling that no express or implied preemption had been shown, and that the subject matter of the ordinance was a municipal affair.

The parties stipulated that the court's decision was dispositive of plaintiffs' remaining claims, and final judgment was entered for respondents. This timely appeal followed.²

Issues on Appeal

The question here presented is whether the Oakland vehicle forfeiture ordinance is preempted by state law. Appellants concede no constitutional issues are raised by this appeal. The preemption issue raises questions of law subject to de novo review. (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 391-392.) The ordinance is presumed valid; appellants have the burden of proving otherwise. (California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal.App.4th 1302, 1331.)

Appellants assert that the Oakland ordinance is invalid because it conflicts with state law. Article XI, section 7, of the California Constitution provides that a city "may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Because Oakland is a charter city, an additional constitutional provision can come into play. Article XI, section 5, the "home rule" doctrine, reserves to charter cities the right to adopt and enforce ordinances that conflict with general state laws, provided the subject of the regulation is a "municipal affair" rather than one of "statewide concern." (Johnson v. Bradley (1992) 4 Cal.4th 389, 399.)

Case law has clarified how courts should analyse whether an ordinance enacted by a charter city is valid. "First, a court must determine whether there is a genuine conflict between a state statute and a municipal ordinance. [Citations.] Only after concluding there is an actual conflict should a court proceed with the second question; i.e., does the local legislation impact a municipal or statewide concern?" (Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1813.) Courts should avoid making unnecessary choices between competing claims of municipal and state governments "by carefully insuring that the purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and the other." (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16-17.) In other words, the preemption question begins with an inquiry into the existence of a conflict. If there is no conflict, the home rule doctrine is not brought into play.

"A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication. [Citations.]" (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897, internal quotation marks omitted (Sherwin-Williams).) "[L]ocal legislation enters an area that is 'fully occupied' by general law when the Legislature has expressly manifested its intent to 'fully occupy' the area [citation], or when it has impliedly done so in light of one of the following indicia of intent: '(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the' locality [citations]." (Id. at p. 898, quoting In re Hubbard (1964) 62 Cal.2d 119, 128, disapproved on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6.)

Appellants assert the Oakland ordinance conflicts with two state laws: We discuss each claim separately.

A. Alleged conflict with Health and Safety Code sections 11469 et seq.

Appellants contend the Oakland ordinance conflicts with Health and Safety Code sections 11469 et seq., which govern certain drug-related asset forfeitures.³ They argue that the Legislature has created a comprehensive statutory scheme dealing with drug-related asset forfeiture, balancing the needs of law enforcement and the protection of property and due process rights, with a clear intent to establish uniform standards and procedures statewide.⁴

Section 11470, subdivision (e), provides that vehicles are subject to forfeiture if they have been "used as an instrument to facilitate the manufacture of, or possession for sale or sale of [specified amounts of drugs] . . . ."⁵ Appellant contends the state law reflects a legislative intent that drug asset forfeiture procedures be uniform throughout the state, and that the Oakland ordinance is therefore impliedly preempted under the Hubbard test. Implied preemption may properly be found, however, "only when the circumstances 'clearly indicate' a legislative intent to preempt." (California Rifle & Pistol Assn. v. City of West Hollywood, supra, 66 Cal.App.4th at p. 1317, citing Sherwin-Williams, supra, 4 Cal.4th at p. 898.) Such a clear indication is absent here.

The state statutory scheme is silent with regard to vehicles used by drug buyers.⁶ Oakland has included such vehicles in its nuisance abatement program in response to the concerns of its residents. Thus, the Oakland ordinance covers an area untouched by statewide legislation.⁷ As a result, it cannot be said that the state law "clearly indicates" that the nuisance caused by drug buyers has become "exclusively" a matter of state concern, nor that the state law indicates "a paramount state concern" about that nuisance that "will not tolerate further or additional local action." (Sherwin-Williams, supra, 4 Cal.4th at p. 898, citing In re Hubbard, supra, 62 Cal.2d at p. 128.) "The general fact that state legislation concentrates on specific areas, and leaves related areas untouched" has been held to demonstrate "a legislative intent to permit local governments to continue to apply their police power according to the particular needs of their communities in areas not specifically preempted. [Citation.]" (California Rifle & Pistol Assn. v. City of West Hollywood, supra, 66 Cal.App.4th at p. 1318 [holding state law did not preempt city ordinance banning sales of specified handguns].)

Nor does the adverse effect of the ordinance on transient citizens of the state outweigh the benefit to the municipality. (Sherwin-Williams, supra, 4 Cal.4th at p. 898.) When state legislation does not address the demands of particular urban areas, "it becomes proper and even necessary for municipalities to add to state regulations provisions adapted to their special requirements." (In re Hoffman (1909) 155 Cal.114, 118; see also Eckl v. Davis (1975) 51 Cal.App.3d 831, 838; People v. Jenkins (1962) 207 Cal.App.2d.Supp. 904, 907.) The Oakland ordinance is directed at the protection of public safety, and targets the purchase or attempted purchase of illicit drugs by transient and resident alike. (See Yuen v. Municipal Court (1975) 52 Cal.App.3d 351, 357.) The procedural requirements of sections 11488.4 and 11488.5⁸ are therefore inapplicable to vehicles seized pursuant to the Oakland ordinance.⁹ If the Legislature wishes to preempt local forfeiture ordinances of this kind, it may express that intention by enacting appropriate legislation.

Appellants would have us retroactively infer such preemptive intent from recent legislative activity. In September 1999, the Legislature passed Assembly Bill 662, amending sections 11469 et seq. to include forfeitures under the criminal profiteering statute. The bill also declared the Legislature's intent that forfeiture law be exclusive of any local ordinance or regulation, declaring the subject a matter of statewide concern.

Assembly Bill 662 was vetoed by the Governor, however, with the specific...