Friday, October 23, 2009
Supreme Court Denies Review of Nude Sunbathing Ruling
By STEVEN M. ELLIS, Staff Writer
The California Supreme Court has left standing a Fourth District Court of Appeal ruling rejecting a challenge to the state’s policy preventing nude sunbathing at a beach in San Diego County.
The high court on Wednesday declined to review or depublish the appellate court’s ruling that a former policy effectively allowing nude sunbathing at the beach as long as other beachgoers did not complain was never adopted as a regulation, and thus did not have to be formally repealed in order for officials to crack down on the practice.
The Fourth District’s Div. Three in June overturned a writ of mandate that had directed the California State Department of Parks and Recreation to reinstate its “Cahill Policy” pending formal adoption of the department’s plan to begin strict enforcement of its anti-nudity policy in all units of the state park system.
Russell W. Cahill was the director of the department when, in 1979, he sent out an internal memorandum setting forth guidelines for enforcement of the anti-nudity regulation, California Code of Regulations Sec. 4322. Cahill said that proponents had, at public meetings, set forth a strong argument that “a few miles of beach” should be set aside as clothing-optional, but “the public is extremely polarized on this issue.”
The solution, Cahill said, was that “enforcement of nude sunbathing regulations within the State Park System shall be made only upon the complaint of a private citizen” and that no one should be cited or arrested for violating Sec. 4322 unless efforts to obtain voluntary compliance were unavailing.
The department, however, announced last year that it was repealing the Cahill policy with respect to San Onofre State Beach, which includes a small area, Trail 6, where nude sunbathing has gone on for years. The department said that nearby population growth had increased the number of beachgoers, and there had been complaints regarding nudity, lewd conduct, and sexual harassment of department employees, and that as a result, it would begin strict enforcement of Sec. 4322 after Labor Day.
Before then, however, the Naturist Action Committee and others filed their mandate petition, claiming the department was prohibited by the Administrative Procedures Act from repealing the Cahill policy without giving the public formal notice and an opportunity to comment.
Orange Superior Court Judge Sheila Fell agreed and issued the writ, and Justice William Rylaarsdam wrote on appeal that the trial judge was correct that the Cahill policy meets the APA definition of a regulation.
However, he said the writ should not have been issued because the policy was never lawfully adopted, insofar as the department did not send notice of the policy to the public, provide an opportunity for public comment or file underlying materials with the Office of Administrative Law, all of which the APA requires.
The case is Naturist Action Committee v. California State Department of Parks and Recreation (2009) 175 Cal.App.4th 1244.
In other conference action, the justices:
•Declined a request by Marina Del Rey attorney Daniel D. Dydzak to dismiss or stay proceedings by the Review Department of the State Bar Court related to a 2008 order by the court recommending disbarment for alleged misconduct.
Dydzak told the MetNews that the disciplinary proceedings against him are political in nature, and were brought by former State Bar Chief Trial Counsel Scott J. Drexel in retaliation for Dydzak’s representation of a client who accused former State Bar President Alan Rothenberg of misappropriating Hollywood memorabilia.
He brought suit in the U.S. District Court for the Central District of California alleging bias on the part of the State Bar and others involved with the disciplinary proceedings, but Judge Virginia A. Phillips dismissed the action. Dydzak filed the request with the California Supreme Court pending resolution of an appeal of the dismissal to the Ninth U.S. Circuit Court of Appeals.
Oral argument on the disciplinary proceeding was scheduled Wednesday before the Review Department, but Dydzak said he did not attend because he contests the department’s jurisdiction over him due to alleged bias. A spokesperson for the State Bar said that the case was submitted on briefs, and that the department has 90 days to issue a ruling.
Dydzak was previously suspended for misconduct in 1998 and again in 2004 for unauthorized practice of law during the first suspension. He was also publicly reproved in 2002 over his use of a profanity in the courtroom of Los Angeles Superior Court Judge Mary Ann Murphy after a hearing.
•Denied review of a ruling by the Sixth District Court of Appeal reviving a lawsuit by a film industry group against a high-end consumer electronics company for allegedly abusing its license to use a proprietary encryption method that secures the millions of standard-definition DVDs sold worldwide.
The appellate court held in DVD Copy Control Association, Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697 that a licensing agreement between electronics company Kaleidescape Inc. and DVD Copy Control Association Inc. required the company to comply with design specifications set forth by the industry group after the contract had been executed.
•Left standing a ruling by Div. Eight of this district’s Court of Appeal in Williams v. Southern California Gas Company (2009) 176 Cal.App.4th 591 that a utility company’s awareness that a wall furnace was permitting potentially lethal levels of carbon monoxide to seep into the living quarters of a Paramount home did not impose a duty on the utility to take action to remove the occupants from harm.
•Denied review and granted a request to depublish an opinion by Div. Seven of this district’s Court of Appeal in Diaz v. Los Angeles County Metropolitan Transportation Authority, B206259, where the appellate court held that instructional error on the principle of res ipsa loquitur required a new trial on liability in the case of an elderly woman who was injured in a 2005 bus accident in Panorama City.
Copyright 2009, Metropolitan News Company