Supreme Court Declines to Hear Challenge to Shopping Bag Law

Friday, May 17, 2013

Page 1

Supreme Court Declines to Hear Challenge to Shopping Bag Law

By KENNETH OFGANG, Staff Writer

The California Supreme Court has denied review of a ruling by this district’s Court of Appeal upholding Los Angeles County’s ordinance prohibiting retailers from providing customers with plastic bags and requiring that they charge 10 cents for paper bags.

The justices, at their weekly conference in San Francisco Wednesday, voted 5-2 to leave standing the decision of Div. Three that the paper bag charge is not a tax and does not require voter approval. Justices Joyce L. Kennard and Carol Corrigan voted to hear the case, Schmeer v. County of Los Angeles (2013) 213 Cal. App. 4th 1310.

The Court of Appeal affirmed Los Angeles Superior Court Judge James Chalfant’s ruling that the charge for paper bags is not a tax within the meaning of Proposition 26, which requires voter approval for new general or special taxes levied by a local government, because the retailer keeps the money.

The ordinance, which applies to unincorporated areas of Los Angeles County—several cities, including Calabasas, Glendale, Long Beach, Malibu, Manhattan Beach, Pasadena, Santa Monica, and West Hollywood, have similar ordinances—was enacted in November 2010. It contains an exception requiring the stores to provide free bags, either plastic or paper, to customers participating in certain government programs for the poor.

Bag Manufacturer Sues

Several taxpayers joined with a plastic bag manufacturer, Hilex Poly Co. LLC, to challenge the law in October 2011. In denying relief, Chalfant ruled that the bag charge was not a tax and that even if it met the general definition of a tax under Proposition 26, it would fall within an exception allowing a “charge imposed for a specific benefit conferred or privilege granted directly to the payor” and not exceeding the reasonable cost to the local government of conferring the benefit or granting the privilege.

The exception applies, Chalfant reasoned, because everyone who pays the charge gets a paper bag. The plaintiffs, the judge ruled, waived their argument that the second prong of the exception did not apply, because they waited too long to assert it.

Not a Tax

Justice Walter Croskey, writing for the Court of Appeal, agreed that the charge is not a tax.

Proposition 26, he explained, was enacted in 2010 to limit the circumstances under which lawmakers could avoid putting taxes to a public vote by defining them as fees or charges. It was not intended, the justice said, to alter the traditional definition of “tax” as “a compulsory payment made to the government or remitted to the government.”

The argument that an ordinance levies a tax if it requires payments to a private entity for providing a benefit or service, while exempting that same requirement if the payment is made to the government, is inconsistent with the text and history of Proposition 26, and with the accompanying ballot pamphlet language, Croskey added.

In other conference action, the justices:

•Granted review in Conservatorship of McQueen, A134337, which deals with whether a motion for attorney fees for proceedings postjudgment and on appeal, based on the elder abuse statute, is timely if brought after the underlying judgment has been satisfied but within the 40-day period following issuance of the remittitur on appeal as set forth in California Rules of Court, rule 3.1702(c).

The First District held, in an unpublished Feb. 7 opinion by Presiding Justice Ignacio Ruvolo of Div. Four, that the motion was untimely because the statute did not authorize an exception to the general rule barring motions for attorney fee awards after satisfaction of judgment.

•Left standing an order by Los Angeles Superior Court Judge Ronald Sohigian that requires the Church of Scientology to turn over more than 2,800 documents to attorneys for a former adherent who claims she was forced into an abortion and otherwise abused during her years of service to the church.

Sohigian rejected the church’s claims of priest-penitent and First Amendment privilege in the suit brought by Laura DeCrescenzo. The plaintiff alleged in a complaint that she was employed by the church from 1991 to 2004, paid less than the minimum wage, and subjected to other illegal conditions.

She alleged that she married a co-worker at the age of 16, became pregnant, and that Scientology forced her to have an abortion at the age of 17 because she was a member of the elite Sea Organization, whose members are not allowed to have children. She filed a complaint against Scientology in April 2009 alleging that she began working for that organization at the age of nine, and became effectively a full-time employee at the age of 10.

The complaint alleges causes of action for, among other things, labor law violations, infliction of emotional distress, invasion of privacy and deprivation of liberty in violation of the state Constitution, and false imprisonment.

The Superior Court judge who heard the case originally ruled that all of DeCrescenzo’s claims were time-barred, because all were subject to statute of limitations no longer than four years, and the suit was filed more than four years after she left scientology.

The Court of Appeal, however, in an unpublished opinion in 2011 by Croskey, held that the plaintiff was entitled to an opportunity to prove that Scientology was equitably estopped to plead the statute of limitations due to misrepresentations and the use of threats and intimidation to prevent her from filing a timely complaint.

With respect to the discovery dispute, the church argued that all of the requested documents dealt with communications between the plaintiff and more than 250 different members whom the church said were part of its clergy. The plaintiff’s lawyers argued that there was no privilege because DeCrescenzo had waived it, and that disclosure would not preclude the church from exercising its religious freedom.

The Court of Appeal summarily denied the church’s writ petition challenging Sohigian’s order, and the high court yesterday denied review by a vote of 5-2, with Justices Ming Chin and Marvin Baxter voting to hear the church’s case.