Metropolitan News-Enterprise


Friday, January 6, 2017


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WalMart-Backed Initiative Violated Brown Act—Court of Appeal


By a MetNews Staff Writer


The Fourth District Court of Appeal held yesterday that a town council’s vague description of an agenda item as “Wal-Mart Initiative Measure” was insufficient public notice—in violation of the Brown Act—that the council would place an initiative on the ballot to authorize construction of a 30-acre commercial development, which would include a Walmart “Supercenter.”

The agenda gave no indication that Walmart was financing the election.

In a portion of the opinion that was certified for publication, Justice Douglas P. Miller of Div. Two said the “[t]own’s action of putting the Initiative on the ballot was properly found null and void by the trial court as the Town council’s decision to put the Initiative on the ballot was done so in violation of the Brown Act.”

The Brown Act provides:

“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session. A brief general description of an item generally need not exceed 20 words.”

Violation of the Brown Act, Miller said, rendered passage of the initiative by voters a nullity.

Agreement Reached

The Apple Valley council and Walmart Stores, Inc., reached their agreement at a meeting on Aug. 13, 2013. that Walmart would fund a special election in the city to facilitate a vote on a commercial development project, Voters approved the ballot initiative on Nov.19, 2013.

Gabriel Hernandez, a voting resident of Apple Valley who was concerned about Walmart’s circumventing of the development process, sued the town and Walmart, claiming that the town violated the Brown Act and the Art. II, §12 of the California Constitution.

The constitutional provision says:

“No amendment to the Constitution, and no statute proposed by the electors by the Legislature or by initiative, that names any individual to hold any office, or names or identifies any private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect.”

The trial court ruled that Apple Valley violated the Brown Act by failing to explicitly disclose the agreement between the town and Walmart for the funding of the election. It invalidated the agreement, finding it unconstitutional because Walmart was identified and conferred special privileges as an owner of the property to be developed. The ruling also awarded Hernandez over $45,000 in attorney fees and over $5,000 in costs.

On appeal, Walmart argued that all of the pertinent information was within the agenda packets available prior to the council’s meeting. Miller disagreed, writing:

“In none of the documents was the ‘item of business’ that Town council was going to accept a gift from Walmart in order to pay for a special election to pass the Initiative.”

State Constitutional Provision

Miller also said that the initiative did not violate the California Constitution. He explained that the issue was being addressed, notwithstanding invalidation of the election, because “it is likely that the matter will again be placed on the ballot or voted on by the Town council.”

The jurist wrote:

“[H]ere, the developer and owner of the property within the Specific Plan had the power to develop the property and it had the duty to obtain the proper permits and approvals. The Initiative did not assign that power to Walmart only. If we were to extend article II, section 12 as requested by Hernandez and the amicus curiae, any land-use initiative would be invalidated as one only would need to establish the company who intended to develop the property or owned the property, even though the Initiative itself makes no reference to the entity. We do not find anything in the legislative history or the language of the statute that article II, section 12 was intended to be this broadly interpreted. As such, we find that the Initiative does not violate article II, section 12.”

In an unpublished portion, Miller found no abuse of discretion in the setting of fees for Hernandez’s lawyers, but said that the motion to strike his memorandum of costs should have been granted because the memorandum “was filed late without a showing by counsel that such late filing was due to mistake of law, inadvertence, or surprise.”

The case is Hernandez v. Walmart, 2016 S.O.S. 54.


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