Metropolitan News-Enterprise


Thursday, April 18, 2002


Page 1


S.C. Lets Ruling Striking Down Orange County Airport Measure Stand


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Court of Appeal ruling striking down an Orange County initiative intended to make it harder to implement major public projects, like the proposed airport at the site of the former El Toro Marine Corps Air Station, was left standing yesterday by the California Supreme Court.

The justices, at yesterday’s conference, unanimously rejected a petition for review and a request by the El Toro Reuse Planning Authority for depublication of the Jan. 4 opinion by the Fourth District’s Div. One.

The issue of the airport may be moot, since the Board of Supervisors Tuesday reversed its longtime support of the airport and agreed to allow the city of Irvine to develop the property for other uses.

But the ruling will permit other projects, including jails and landfills, to go ahead without the two-thirds public vote that Measure F, approved by 67 percent of the electorate in March 2000, would have required.

The Court of Appeal panel found the measure deficient in three respects. “It interferes with the essential government functions of fiscal planning and land use planning; it impermissibly interferes with administrative or executive acts; and it is unconstitutionally vague in its provisions...,” Justice Richard Huffman wrote.

Implementation of Measure F, the justice elaborated, would place “numerous roadblocks” on the planning process mandated by state law and on federal policy governing conversion of closed military bases to civilian use.

Huffman noted that under the state Constitution, legislative acts are subject to the initiative and referendum but administrative and executive acts are not. Measure F, he said, would violate the principle by interfering with county supervisors’ “essential government functions...such as defining the project, preparing and processing EIRs, holding hearings for approval of a project, and/or placing an approved project on the ballot.”

The jurist also criticized a provision that would have required that “any act to approve [a project] by the board” achieve the necessary two-thirds voter approval at a “County General Election.” Huffman said it was unclear how many such acts might occur with respect to a particular project or what constitutes a county general election.

The case is Citizens for Jobs and the Economy v. County of Orange, 94 Cal.App.4th 1311, modified 95 Cal.App.4th 890A.

In other action, the high court:

Agreed to decide whether a defendant who successfully completes probation for a sex offense is considered a prior offender for purposes of the “one-strike” law that prescribes a 15-year-to-life or 25-year-to-life sentence for sex crimes committed under certain circumstances.

The Fourth District’s Div. One, in a Jan. 9 opinion, People v. Hammer, 94 Cal.App.4th 1443, said that a man convicted of molesting his daughter was properly sentenced to 55 years to life under the one-strike law. The determinate portion of the sentence included 25 years for each of two separate assaults plus a five-year enhancement based on a prior serious felony conviction.

Counsel for defendant Jeffrey Hammer argued that the feature of “one-strike” that imposes the aggravated sentence on a repeat child molester was not intended to apply to a defendant who has completed probation. Justice Richard Huffman, writing for the Court of Appeal, found the contention illogical.

The purpose of granting probation to a defendant who molests a child in his own family, the justice said, is to allow an opportunity for reform. If the person completes probation but then commits a new sex offense, Huffman reasoned, he hasn’t reformed and should be treated no differently than a recidivist who was incarcerated for the previous offense.

The Court of Appeal also rejected Hammer’s challenge to the admission of two notes the victim wrote to her mother, including one explaining what Hammer had done and asking “Can we put him in death or Hell!” The defense argued the notes were inadmissible hearsay, but Huffman said the Evidence Code Sec. 1360 hearsay exception for statements of a child under age 12 claiming abuse applies to written, as well as oral, communications.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin Baxter, and Ming Chin voted to hear Hammer’s appeal.

Agreed to decide whether prosecutors may refile a case where their second felony complaint was dismissed for insufficient evidence as a consequence of the judge granting a defendant’s second motion to suppress evidence.

The Third District Court of Appeal answered that question in the negative. It held in People v. Toney, 95 Cal.App.4th 941, that the prosecution’s sole remedy in that situation is an appeal.

George, Kennard, Baxter, Chin and Justice Carlos Moreno voted to grant review.


Copyright 2002, Metropolitan News Company