Metropolitan News-Enterprise


Wednesday, February 19, 2020


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4-1 City Council Vote Did Not Amount To Required Five-Sevenths—C.A.

Opinion Says Five Votes Were Needed, Under Wording of Code, Because Council Was Seven-Member Body; There Was Vacancy, One Recusal


By a MetNews Staff Writer


The Fifth District Court of Appeal has affirmed the denial of a petition for writ of mandate sought by a man who contends a 4-1 vote in his favor by members of a city council acting on his permit appeal met a municipal code requirement of approval by a five-sevenths margin, rejecting his contention both as a matter of law and arithmetic.

Appellant Junaid Lateef’s request for a permit to sell cigarettes, beer, and wine at a neighborhood market had been denied by the Madera Planning Commission. The Municipal Code provides:

“A five-sevenths vote of the whole of the Council shall be required to grant, in whole or in part, any appealed application denied by the Commission.”

One member of the Madera City Council recused himself and there was one vacancy.

Lateef insisted a 4-1 vote to grant the permit sufficed, constituting five-sevenths of the of the five members who voted. Madera Superior Court Judge Michael J. Jurkovich disagreed, holding that the words “whole of the council” required five votes out of the potential seven votes.

Snauffer’s Opinion

The Court of Appeal on Friday affirmed, in an opinion by Justice Mark Snauffer, who said the Municipal Code section “simply cannot be read as Lateef proposes; otherwise, we would have to omit the word ‘whole.’ ”

He went on to say:

“Under California law, a vacant council seat is included in determining whether a quorum exists….Thus, it was proper for the city council to include the vacant council seat when determining whether Lateef obtained sufficient votes to grant his application.”

Even if the recused member were removed from the calculation, Snauffer said, Lateef would lose, explaining:

“A five-sevenths vote of six councilmembers is a number greater than four, namely approximately 4.29. While Lateef assumes this number should be rounded down to four, we disagree. Since the calculation results in a number greater than four and there cannot be a fractional vote, five affirmative votes would be required, which Lateef did not receive.”

The case is Lateef v. City of Madera, 2020 S.O.S. 643.

The member of the council who recused himself was Charles F. Rigby, who had emailed the Planning Commission urging that the permit be denied.

Federal Court Proceeding

In an action in the U.S. District Court for the Eastern District of California, Lateef argued that his right to due process was denied by the Planning Commission in failing to disclose to him Rigby’s email prior to it passing on his application. Judge Dale A. Drozd on Dec 13, 2016, dismissed that claim, with leave to amend, saying:

“[T]his court cannot find, and plaintiff has not pointed to any, authority to suggest that he had a property interest in disclosure of communications to the Planning Commission prior to a hearing or vote. Thus, the court finds that the complaint fails to allege facts sufficient to state a plausible due process claim with respect to this theory.”

He also dismissed an equal protection claim, with leave to amend, but declined to dismiss a due-process claim based on the city’s rejection of Lateef’s view that four out of five votes sufficed.

Drozd denied a motion to dismiss based on the pendency of the appeal in the state Court of Appeal, saying:

“”Plaintiff’s mandamus action in state court is based purely on state law causes of action. In contrast, plaintiff brings two due process causes of action in this case based on entirely different rights—i.e., under the federal and state constitutions—from those asserted in his mandamus action in state court. While it is possible that the two cases may involve common issues, this court lacks discretion to decline to exercise jurisdiction over such federal statutory claims.”

The complaint was amended and on March 21, 2017, the previously dismissed claims were dismissed with prejudice.

On May 22, 2017, Magistrate Judge Sheila K. Oberto signed an order staying proceedings pending resolution of the state action. A telephonic status conference is scheduled for April 14.


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