Metropolitan News-Enterprise


Thursday, March 24, 2005


Page 1


S.C. Rejects Bid to Block Implementation of Stem Cell Initiative


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday rejected a bid by two conservative groups to halt implementation of the state’s controversial stem-cell research initiative.

In a pair of brief orders, the high court—which met in San Francisco for its weekly conference—denied two petitions brought by opponents of Proposition 71. The denials are “without prejudice to seeking other relief, such as the timely filing of a validation action under Code of Civil Procedure section 860 et seq. or to the filing of a writ petition in superior court,” the justices said.

The National Tax Limitation Foundation and Peoples Advocate claim that the initiative violates the state Constitution because it gives public funds to an entity, the California Institute for Regenerative Medicine, that is not under the exclusive control of the state. Critics, including some supporters of the measure, also object to provisions that exempt institute officials from open-government and conflict-of-interest laws.

An attorney for the petitioners expressed disappointment with the high court’s unanimous action but said her clients would persevere.

‘Huge Issue’

Dana Cody of the Life Legal Defense Foundation said her clients raised “a huge issue that needs to be taken care of immediately.” Instead of being resolved quickly, she said, the issue “will grind slowly through the court system.”

Cody acknowledged that the Supreme Court rarely grants relief when a case has not been presented to the lower courts first. But the justices have taken such action in response to issues “of great public importance” and should have done so with respect to the institute’s “$3 billion money grab,” she said.

It was unclear what effect the prospect of litigation in the lower courts would have on the institute. Agency officials and California Attorney General Bill Lockyer had said the agency couldn’t sell bonds to finance research grants as long as litigation was pending in the Supreme Court.

In other conference action, the justices granted review on their own motion to determine whether a judge’s recusal based on contact with an ADR firm required vacating his prior ruling denying summary adjudication.

Div. Five of this district’s Court of Appeal answered that question in the affirmative in Hartford Casualty Insurance Company v. Superior Court (2004) 125 Cal.App.4th 250. Neither of the parties to the suit, which grew out of an insurance coverage dispute, asked for review of the Court of Appeal’s ruling, although the Los Angeles Superior Court and the California Judges Association asked that Justice Orville Armstrong’s opinion be depublished.

Code Section

At issue is the interpretation of Code of Civil Procedure Sec. 170.1(a)(8)(B). The statute requires disqualification, unless waived by the parties, if within the last two years a judge has “participated in...discussions regarding...prospective employment or service” as a dispute resolution neutral and the matter before him “includes issues relating to the enforcement of an agreement to submit a dispute to alternative dispute resolution or the appointment or use of a dispute resolution neutral.”

In Hartford Casualty, Judge Jon Mayeda recused himself upon concluding that disqualification was mandated because he had discussed possible employment upon retirement with an alternative dispute resolution provider.

Since the contact occurred before the ruling on the summary adjudication motion, the Court of Appeal panel said, it was improper for Los Angeles Superior Court Judge Aurelio N. Munoz—who took the case over from Mayeda—to allow Mayeda’s ruling on it to stand.

Mayeda “overlooked the fact that the same disqualifying factors existed before he was asked to appoint a referee, and so he should have recused himself even earlier in the litigation,” Armstrong explained.

He continued:

“Specifically, on January 8, 2004, when the parties requested referral to mediation, the litigation became one in which there was an issue relating to ëthe appointment or use of a dispute resolution neutral.’....That, coupled with the judge’s admitted discussions with alternative dispute resolution providers regarding prospective employment, operated to disqualify him from further acting in the case.”

Armstrong said Mayeda “indicated he did not initiate the contacts and that it is very common for alternative dispute resolution providers to approach members of the judiciary regarding employment upon their retirement from the bench.” But even if the discussions were “superficial,” Armstrong said, disqualification under the statute was still required.

A bill now pending in the Legislature, AB 1322 by Assemblywoman Noreen Evans, D-Santa Rosa, would amend the requirement by providing that such discussions are grounds for disqualification only if they were “more than casual.”

The Assembly Judiciary Committee is scheduled to hear the bill April 5.

In another conference item of note, the justices let stand a ruling that requires the City of La Mirada to share sales tax revenue generated by the relocation of a business facility from the City of Carson.

Div. Three of this district’s Court of Appeal ruled in City of Carson v. City of La Mirada (2004) 125 Cal.App.4th 532, that the company operating the facility, Corporate Express, Inc. is a “big box retailer” for purposes of a law designed to discourage cities from offering inducements to relocate such enterprises.

In what appears to be the first published case interpreting the law, which also applies to motor vehicle dealerships and was adopted in 1999 and amended in 2003, the appellate panel reversed a Los Angeles Superior Court judge. The large, warehouse-like facility, from which the company repackages and sells office supplies, is a “store” and its size makes the company a big-box retailer, Justice Richard Aldrich reasoned.

Carson sued after Corporate Express, a seller of office products, furniture, and “computer consumable” supplies, agreed to relocate to La Mirada in December 2000. Corporate Express said it had outgrown its Carson facility after acquiring two of its competitors.

The company accepted La Mirada’s offer to assist in acquiring land and constructing a new and larger facility, and to rebate a portion of the company’s sales taxes for 15 years.

Corporate Express accepted La Mirada’s offer over a competing proposal by Carson, which offered to build the company a new facility or to acquire and retrofit an existing building, which the city would then lease to the company.

Los Angeles Superior Court Judge Emilie Elias sided with Corporate Express, holding that its building in La Mirada is a “warehouse/distribution facility” rather than a store. But Aldrich said the trial judge’s interpretation was inconsistent with the Legislature’s intended goal of preventing cities from engaging in “bidding wars” for large sources of sales tax revenue.


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