Why Are Courts Sour on CEQA? Peter Prows Explains

Peter Prows  0:03 
That was an observation that Justice Brennan made in one of the cases I sent you in a dissenting opinion. But yeah, sometimes you can lose the battle and still win the war. That's how easy it is to be a city attorney.

Announcer  0:12  
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:26 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:28 
And I'm Tim Kowal. While this podcast is a resource for trial and appellate attorneys, Jeff and I are both appellate specialists but we split our time about evenly between trial and appellate courts and we tried to give our listeners in each episode some news and perspectives they can use in their practice.

Jeff Lewis  0:44  
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Tim Kowal  1:08  
All right, Jeff, and today we are pleased to welcome Peter Prowse to the show. Jeff, I was telling you that what we really needed to entice listeners to come to the show was a really juicy juicy Sequa episode about Seattle environmental law. And so Peter Prowse fits the bill Peter is a Council's public agencies private clients and sovereigns on all manner of water, land use and environmental issues, including neighbor disputes, development permit issues and all the way up to national bet the company federal litigation. Peter is experienced in California's water rights and quality laws, the Clean Water Act and wetlands regulation, the Coastal Act Sequa, of course, and NEPA and the public trust doctrine, real property and the Law of the Sea. He litigates in state and federal trial and appellate courts, including the California Supreme Court and the United States Supreme Court, Peter has been a law clerk to the honorable Charles Brower in his private international arbitration practice in London. And he was a law clerk to the honorable Abdul Koroma of Sierra Leone at the International Court of Justice in the Hague. Peter, welcome to the podcast. Thanks for joining us.

Peter Prows  2:14 
Thanks so much for having me, Tim and Jeff.

Tim Kowal  2:16 
All right. Well, I have to start at that last one. First, you were a law clerk in the Hague, what is that, like?

Peter Prows  2:21  
The Supreme Court of the world? No, the International Court of Justice is the principal judicial organ of the United Nations. It hears and resolves disputes between member states of the United Nations they typically get there. Well, they all they all have to get there by consent of the parties. And that consent typically comes in the way of dispute resolution provisions and in treaties. So these days, a lot of the cases the International Court of Justice hears our maritime boundary disputes, because the the UN Convention for the law, the sea has a dispute resolution provision that provides consent, least in some cases for the International Court of Justice. And so several of the cases that I worked on, while I was was there were maritime boundary disputes. We also heard a large dispute under the UN Genocide Convention between way involving Serbia. So it was it was an exciting experience. You know, I think the listeners of your podcast would, would find it rather enlightening to listen to oral argument at the International Court of Justice. The council submits their their oral remarks ahead of time and reads from a script. That's oral arguments, the judges, when they ask questions, will submit them in writing to the council and give them a couple of weeks to get back to the court on their responses. There's no sort of live q&a

Tim Kowal  3:42  
of the extreme version of tentative opinions.

Peter Prows  3:45 
Yeah, well, it's, you know, it's sort of out of respect for the fact that the parties are sovereign countries, and that, you know, the mere Council mere attorneys don't have the authority to bind bind a country to their responses sort of on the spot. That's the theory anyway, but it leads to fairly dry oral arguments that actually sometimes go on for multiple weeks. There'll be it's it's less of an argument and more of a more of a presentation that will go on for. It can be weeks.

Tim Kowal  4:14  
Yeah, multi day or multi week presentation. So Peter, you're practices in San Francisco, you have clerked at The Hague, you've clerked in London, you are versed in the Law of the Sea. Tell us a little bit about your practice and how all those dots connect.

Peter Prows  4:29 
Well, in law school, I didn't really know what kind of law I wanted to practice. I worked at all of the above all of the above. You know, I worked I went to law school in New York, I had the big firm summer associate experience in New York. I'd done arbitration practice, which I could have gone back to after working in The Hague, but I'd had the opportunity while I was in New York to work for a small island country, Palau at the United Nations and I had a kind of a menu of issue issues that I could have helped advise them on. And the ambassador at the time offered me Law of the Sea. And I thought, well, you know, that's actually an issue that a small island country might find useful to know something about. So I, I learned as much as I could, and ended up negotiating fisheries agreements and maritime boundary issues at the UN and working with, you know, scientists and geologists and biologists. And when I was coming to the end of my my time clerking, and I was reflecting on what I really wanted to practice, there was I was, I came to the realization that I really loved the environmental stuff. You know, I learned something new in every case, I've worked with people who are smarter than me all the time. And I got to meet scientists and really engage in public policy and do public law work in a way that, you know, I'd never be able to do going to sort of a large commercial litigation practice back in New York.

Tim Kowal  5:56 
So you came to it with a with an interest, pre existing interest in policy international issues. Yep. Yeah. Okay. And here's a stupid question, Law of the Sea and maritime law, same thing, or different things, different things.

Peter Prows  6:10 
So far, as I can tell, I don't actually know anything about maritime law, maritime law is sort of love of ships and marine commerce. And so you know, you have sailors who slip and fall on a vessel. It's like tort law on the water. Yeah. And it's an old form of law. It's actually one of those one of those creatures of federal common law that we're told don't exist, but actually do exist in some realms. And maritime law is one of them. But it's, but I know nothing about it. Law of the Sea really is where one country ends and the high seas begins, or where another country begins, and what what each country's rights and responsibilities are in the different areas of marine jurisdiction.

Tim Kowal  6:56 
I go off, when I go off on my friend's boat, you can tell me where we can start gambling and doing other things that are otherwise illicit.

Peter Prows  7:04  
You might not like the answers, but yes.

Tim Kowal  7:07  
Okay. All right. Let's see, would you rather be in state court or federal court? You practice everywhere? Where's that you? What are the pros and cons? Were Would you rather be?

Peter Prows  7:16 
I think, I mean, I am comfortable in both. If if it's a state court I've been in before, then I probably will say state court. If it's one I haven't been in before then then federal court, Federal Court practice, at least in my experience in the Northern District in the eastern district here in California, is fairly similar, you know, you don't have the local local rules. You filing is all online. So there's, there's no real mystery about how to get something before a judge and get it filed. Whereas in some state courts, it can be can be a real trial and error, to figure out even how to get something filed to get it before the judge, which judge do you end up before? Once you've gone through, you know, having a case in state court, and you kind of figure out how it actually works, then, you know, it tends to be a smaller, more collegial practice. I think when when you know, the judges, and maybe you have some experience with the court clerks and and it tends to go fairly smoothly. So yeah, so if I've been in that court before, I'll say state court, if not, then all else being equal federal court,

Tim Kowal  8:16 
you have a good war story, you can share something that was formative to your practice, maybe something that confirmed that I'm in the right, the right area of law or something, or maybe a story that told you I gotta get far, far away from this kind of situation?

Peter Prows  8:30  
Well, it you know, I was reflecting on that. And I, it actually involves a criminal case I was involved with once I don't do a whole lot of criminal practice. But I've had a few matters where, particularly farmer clients have gotten themselves into trouble. It's harder being a farmer in California than you might think. But I had a client who was an oyster farmer, and there's a there's a statute in the fishing game code that says, you know, you got to fill out a form each year that tells the state where you got your, you know, your oyster bags, and he had oyster bags and three places. And he listed all three on one form. And the warden I guess, thought he should have filled that three forms instead of one form. In any violation, the

Tim Kowal  9:10 
fishing game code is a misdemeanor. So you got criminally prosecuted for this or filling out a form the wrong way. Yeah. It's kind of like talking with the with the FBI, you better not make even an innocent misstatement.

Peter Prows  9:22 
So I, you know, my comparative advantage, shall we say, is not in in the criminal courtroom. But I thought, well, you know what, I'm not actually sure this is a crime. So I bet the DA here has never seen a demurrer in a in a criminal case before but it turns out, you can actually demurrer to a misdemeanor complaint. And so I filed a demur, and the judge overruled the demurrer, but then took me in the DA back into chambers, and I'd worked on a fairly high profile case. This isn't Marin County a few years prior, and was representing another Oyster Company and litigation against the National Park Service and when Marion County had gotten involved in that suit. And our judge had had worked in the county counsel's office at the time. And she, you know, after she'd over, she'd ruled against me, she turns to the DA and says, you know who this guy is? He's the oyster lawyer, you don't want to go up against him, do you? And let's just say the case, promptly settled quite favorably, almost immediately thereafter. So sometimes even when you don't feel totally comfortable in one, one area of practice, if you can bring whatever comparative advantage you do have to it, as well as whatever reputation you've you've garnered to that point, you

Tim Kowal  10:29 
can thrive. And I feel remiss for not introducing you as the oyster lawyer. All right, well, let's move on from oysters to Sequa. We've not had an attorney on the show to talk about Sequa. before. And I wonder if you tell tell our audience a little something about your work in that area. How much of your work is Sequa? What who are your typical clients? Are they developers? Are they municipalities? Are they the NIMBYs? Who are they?

Peter Prows  10:54 
Well, I'd say almost all of my cases involve Sequa. in one form or another. I represent developers, I represent public agencies, water agencies, and I've even represented petitioners who have challenged projects. But anytime you need a discretionary permit from a public agency in California, Sequa is going to be something that you have to think about public agencies when they approve a project have to do Sequa unless some exemption applies. And those exemptions are litigated up, down and sideways. But sequences involved in almost all of an almost every matter I am engaged with,

Jeff Lewis  11:30  
you know, many, many land developers and public agencies grumble about how long it takes to get projects past Sequa to Sequa, in your opinion, unduly slow projects down and and are there any efforts to reform Sequa and make it a little easier to navigate?

Peter Prows  11:46 
Secret itself says that the environmental review process should be done within a year. In my experience, that almost never that goal is almost never met, though I'm involved in a project now, where the permit application went in in March. And we're on track to have EIR certified in November. So I'm trying to break a new record here. And we'll see. We'll see how it goes. And we'll see if we get sued on the project later. Knock on wood.

Tim Kowal  12:13  
So what is the effect of, of this goal of completing the litigation within a year is due Sequa? I think sequel actions get calendar preference, is that right?

Peter Prows  12:22 
They do get calendar preference. Yep. The you know, that really, until the Sequa issues are resolved. It's hard to proceed with the project. And you know, those I think those goals are really intended to recognize that this process isn't supposed to take forever, there is supposed to be finality to it. And you know, that's part of the reason why there are such short statutes of limitations and Sequa actions, sometimes the shortest 30 or 35 days, right, which the California Supreme Court has been pretty strict in in applying. So yeah, that we are supposed to get through Sequa and get past Sequa. It's not supposed to be the be all and end all of the land use entitlement process, though. I have other projects where it's taken five years or more. And then there are lawsuits and then, you know, those can drag on for a while as well. So yeah, the legislature in recent years has enacted a number of, of bills to streamline the sequel process or exempt certain projects from it entirely.

Tim Kowal  13:17  
What types of reforms are are on the table, a lot of them involve

Peter Prows  13:21  
infill projects in urban areas where the project meets the pre existing general plan and zoning. So essentially, if you if you if you already qualify under the city's requirements, then there really shouldn't be further SQL review that these these projects qualify for streamlined ministerial is the word that the statutes use approval. And when this would mean

Tim Kowal  13:45  
that that these infill projects would not have to go through the entire panoply of Sequa procedures.

Peter Prows  13:52  
That's That's right. They they actually are exempt from Sequa entirely. And there are certain concessions in those in that legislation to requiring certain percentage of affordable housing to be built as part of the project and often project labor agreements, meaning you've got to you got to pay union wages for those kinds of jobs. And so there's some question about how economic those those projects are once once those once those components are built into them. But if if you don't have to do SQL and you can get through the process in a reasonable period of time, that's a that's a major incentive for developers to try to find a way to fit in those boxes

Tim Kowal  14:26 
are a large number of the sequel cases. Do they fit into that criteria of these infill projects, they're starting to

Peter Prows  14:33 
I think the, you know, these these pieces of legislation that are really starting to be used more these days are maybe only four or five years old, and they're they're just starting to get into the litigation mode now over over approval approvals that have been given. So you know, we will we will see where the courts go with this legislation. I mean, I suspect we're gonna see more and more carve outs from Sequa as I

Jeff Lewis  14:58 
had I had a sequel case I I don't do too much. But I had a sequel case where, at the time of filing, it was a very righteous Sequa case. And that about 30 days before trial, Sacramento, amended Sequa to basically exempt the project I was challenging from Sequa. brutal, brutal, those exemptions so they come fast.

Peter Prows  15:19 
Well, and, you know, that's one of the one of the challenges to have administrative mandamus practices as any appellate litigation really is, you know, there's got to be prejudicial error. And if, if the law changes underneath, you know, the courts will will tend to apply the law as it exists when they make their decision, not not what it was when you filed your lawsuit.

Jeff Lewis  15:38  
Yeah, let me ask you this. I've never been involved in a sequel case that dealt with tribal cultural resource preservation, have you and tell us a little bit about the interaction between those two, I guess, policy goals?

Peter Prows  15:51 
Yeah, this is a really interesting area that I've got a couple projects now involving tribal cultural resources, matters. And this all stems out of a legislation, a B 52. That was passed, I don't know the date, maybe five or 10 years ago now that in the sequel process, lead agency, and that's the that's the secret term for the public agency that kind of takes the lead on the secret document, and typically tends to be the agency that's in the lead on approving the project. So if it's a housing project, it's the city or the county, the project is in, has to go to the state and ask, Hey, are there any state recognized tribes that are interested in projects in this area, and then they get a list back from the state and then the the lead agency contacts each of those tribes that are on the list and says, Hey, are you interested in this project, you have concerns about this project? And if any of the tribes come back and say yes, then the the lead agency essentially has to engage in what tantamount to government to government negotiations with that tribe to try to come to an agreement over how to identify and then mitigate whatever tribal cultural resources there might be. So it's really a new category of environmental impact in California, as we come to kind of grapple with the state's history of kind of running roughshod over the native people here,

Jeff Lewis  17:16 
what type of interest or resource would be give us some examples of some of the back and forth or the interests? Yeah,

Peter Prows  17:23  
you can have, you know, the the kind of most dramatic example is if there is concern about whether there's, you know, tribal burial site there, or tribal village site on the on the project site, and that can raise a whole host of issues of, you know, how to deal with human remains, and how to appropriately respect, you know, the burials there and whether you just kept remains in place or whether they should be transported somewhere else. So those can be the subject of some very sensitive negotiations.

Tim Kowal  17:53 
Are there any is there any interplay with the federal constitution, you know, the Article One, Section Eight gives plenary power to the Congress to regulate commerce with the tribes. I don't know if that if it prevents the states from doing this sort of thing, where it where it's giving, giving kind of first right of refusal to certain projects to tribes in the area.

Peter Prows  18:14 
You know, I haven't seen that come up. And the federal government has its own separate list of of the tribes that the federal government recognizes, and often the federal lists and the state lists don't don't match. So, you know, I've never seen a case where there might be a conflict between what the state or local government might want to see done with the tribe and what the federal government might have deemed appropriate under under the federal constitution is an interesting question. I haven't seen it come up.

Tim Kowal  18:41 
Alright, let's talk about a recent case. This is actually the case that piqued my interest in talking about Sequa its Tiburon, open space community versus County of Marin. It's back in. It was issued in May of this year. 2012. Out of the First District Court of Appeal, just the thumbnail sketch of it is Tiburon. The Tiburon case involved a development project that that was slated due to be built atop a mountain that was overlooking San Francisco Bay, so apparently had just majestic views. There only some 4046 or so suburban single family homes that were slated to be built there that were that the developer wanted to build there. For many years, the permitting attempts have gone on neighboring residents hated the idea, and so they pose the project vigorously. In the course of decades of litigation, the county stipulated to a judgment and ultimately the county took the position that that judgment tied its hands and required it to issue the development permits. The neighbors contested this on appeal and argued that the county's position violated the fundamental principle that a sovereign cannot negotiate its own sovereignty and that by taking the position that its hands were tied, the county basically abused its discretion, delegated its sovereign powers to the developer and in such a in such manner He baited the requirements of Sequa Court of Appeals rejected the argument said no, it the county didn't evaded Sequa obligations. And I wonder if Peter, can you elaborate on that? Did I simplify it too much? And what's what was really at stake here? Because coming up in a minute, I want to read some of there's some interesting quotes that are critical of Sequa. And I wondered if this was, if this was usual, this kind of a run of the mill Sequa. Court of Appeal opinion, what is noteworthy in this case? In your view, Peter?

Peter Prows  20:30 
Well, I'll say first of all, this is this is one of the interesting sequel cases, there are a sequence of procedural statute, and there are a million rules and Sequa, both for lead agencies and for petitioners. And so when you got a procedural statute like that, with a lot of tripwires on both sides, you get a lot of court cases that by and large turn on kind of not very interesting procedural rules, at least in my opinion, but this this is a this is a more interesting one, I think, because you get this interesting interplay between these these federal stipulated court judgments, which the the county and the Court of Appeal thought constrained the county's discretion and required the county to approve, I think it was 47 houses on a along a ridge line. And, you know, the usual rule under Sequa, that, you know, lead agencies ought to evaluate the environmental impacts up down and sideways of a project like this. So but I, you know, I think the Court of Appeal got this one, right, for the kind of simple reason that Sequa, as I mentioned earlier, applies to discretionary decisions. And here, you know, I don't think there was any suggestion that there was a collusive stipulated judgment here. In fact, the county opposed the underlying federal court case pretty vigorously when it was filed. But there nevertheless was a federal court judgment that required the county to approve this project. And so there really, there really was not much to be done under Sequa. There was a EIR done, I guess. But, you know, in terms of what the county could or might have been able to do differently as a result of that environmental review, its hands were tied and had to approve this project. So, you know, I think the court got this one, right.

Tim Kowal  22:08 
Yeah, there was, as I mentioned, there were a couple of passages in the opinion that I thought were quite vivid. And I want to read a couple of them to the audience. The first one is provide just kind of a nice thumbnail sketch of what Sequa is, and what its purpose is. The court quotes the late Presiding Justice David sills, who was my former boss, when I was an external Court of Appeal down here in Santa Ana, that Sequa, quote, provides protections to expose elected decision makers to the political consequences of any decision to certify an EIR, there is a sort of grand design and Sequa projects, which significantly affect the environment can go forward, but only after the elected decision makers have their noses rubbed in those environmental effects and vote to go forward anyway, and quote, what do you think, Peter? Is that? Is that a fair? If pithy summation of what sequel is,

Peter Prows  23:01 
I think it's a great summation. It I'm not sure quite how much it applies in this case. But that's the idea. It's, it's, you know, it's it's to kind of educate the decision makers in the public about every aspect of a project and secret doesn't constrain the lead agencies actual decision making, it just puts all the cards on the table. And if they want to nevertheless, proceed with the project. That's okay. SQL doesn't doesn't stop a lead agency from doing that it doesn't doesn't constrain their discretion, they've just got to jump through the 1000 procedural hurdles to get to that approval. And then, you know, decision makers, they live with the consequences of their decision that that's politics, and you know, they can, if they're proud of the decision they make, they can they can run on it, if they want to hide from it, well, then their, you know, their opponents can can highlight it for the public. But that's, you know, that's democracy in action. That's, that's the theory. In this case, you know, the county had to approve this project in the sense that it had to agree to a settlement. And so there was at least some public airing of what the project would be and some opportunity I imagined for the public to weigh in on that point. But there wasn't the usual opportunity to rub the decision makers noses in the environmental consequences of the decision. And what the petitioners probably should have done here was tried to intervene in the federal case, the time that settlement was approved. And if they, you know, wanted to ask the federal court to try to build into that settlement to, you know, an oh, by the way, there should still be a secret process that county should have to go through and if they want an out of from approving the project at that point at the end of that process, then build that into the stipulated judgment. But, you know, once once that judgment was entered, the county's hands really retired otherwise, it'd be in contempt if you didn't approve this project.

Tim Kowal  24:50  
All right. And then here is the the conclusion of the court's opinion and it It's entitled some concluding observations. And so when I saw Those words when I first scan this case, I knew that we that we're going to have to talk about this. So here's what caught my attention in the first place. The in the concluding observations, the court makes reference to justice Chin's opinion in the, in the California Supreme Court's opinion Center for Biological Diversity versus Department of Fish and Wildlife. And, in the opinion states that Justice chin had concluded with a warning worthy of Cassandra, quote, we have caution that rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic or recreational development and advancement. And then the opinion goes on. And it's concluding observations that every member of the Supreme Court agreed that that quote, Sequa is not intended as a population control measure and quote, and then finally, delay can become its own reward for Project opponents. This is a recipe for paralysis, but Sequa is not meant to cause paralysis. And then, and then notes that this case vindicates some of the worst of justice Chin's fears, and SQL was meant to serve noble purposes, but it can be manipulated to be a formidable tool of obstruction, particularly against proposed projects that will increase housing density, something is very wrong with this picture is how the court concludes it. Peter, is this tone representative? You think of how a lot of Court of Appeal justices view Sequa? This seems extraordinarily critical and seems to be kind of dipping a toe it's, you know, sometimes you see these opinions concluding we urge the legislator to take this up is this kind of an implicit call that the legislature needs to do something about Sequa?

Peter Prows  26:40 
I think there's been a real change in tone and a number of SQL cases by the Court of Appeal in in recent years. And I've seen a several cases where, you know, in the 60s 70s 80s 90s, you know, you see the first half of the legal discussion being all about SQL was meant to protect the environment. And now you see a lot more of this kind of language that you know, SQL is not meant to be the end all be all, and there are other values that are important and, you know, it housing costs being what they are in California and essentially the number one concern of of Californians, it's not surprising that the courts are maybe taking a more critical eye towards what are we really what are we really doing here?

Tim Kowal  27:23 
Yeah, there was also around the same time that the Tiburon opinion came down there was this article written by Matt Taibbi about Sequa and Matt Taibbi is a he's a former Rolling Stone essayist or writer. Now he's got his own blog at substack. But he wrote an article called The lawyers who ate California, and it talks about various types of what he sees to be over regulation. But here's what he wrote about Sequa. Specifically, this is Matt Taibbi multiple other businesses that multiple other business figures cited Sequa the California Environmental Quality Act, which accomplished good things at its inception in 1970, but has since seen exponential to cancerous growth, making home construction massively more expensive, and pushing companies to relocate workforces to locales with more available housing. It was intended to modernize residential building, but Sequa to sum has instead become a backdoor subsidy to owners of the state's stagnant pool of mid century homes, mandating so many lengthy reviews and conditions that petitioners can NIMBY projects and neighborhood projects to death and kill even environmentally friendly projects like back bike paths and public transport. Even progressives have begun to feel empowered to openly hate on this statute. Democratic State Senator Scott wiener called it, quote the law that swallowed California and quote, so I wondered if if you are seeing these kinds of sentiments again, Sequa, you would think is, you know, all environmentalists would would love Sequa because it's it's meant to provide environmentally friendly neighborhoods, but it's, it can be used to, to obstruct just that objective.

Peter Prows  29:05 
It can cost hundreds of 1000s of dollars for for for any kind of developer to to fund any IR not even, you know, counting the the mitigation measures that the EIR measure will require, you know, I, I think part of the problem is that, you know, local agencies, there's sort of no end to the process, you know, they have to do sequel when they amend their general plans or amend their zoning. And then, and then at the individual project level, developers have to do Sequa all over again, and it would make much more sense I think, if you if local agencies when they were doing their large planning documents, we went through sequel once we we all decide here's where housing is going to go, here's where the transit is going to go, here's the open space is going to be and then let people essentially buy right build in the places that are designated in the general plan to build and not build where, where the, you know, overriding planning documents say we shouldn't be building and not have to go through multiple sequence again and again and again. And I think that's actually a lot of the spirit of Senator wieners legislation. And a lot of the legislation we talked about earlier kind of comes from him that that essentially if you if you qualify, under the General Plan and the zoning, then you get ministerial approval, this matter has already been studied and resolved and we don't need to study it again, just because now we're at the individual project level.

Tim Kowal  30:25 
Do you see? Do you see these Sequa issues and arguments as having a certain political bent to them the Tiburon case and involved a development involving single family homes, but a lot of SQL litigation is or Sequa based objections are our neighborhood objections to high density developments. And so I wonder if, you know, sometimes you could see that as being, you know, either side of the political spectrum, there's some left of center who would like to see more high density built, and then more more conservative type or just unnecessarily political concern. I guess anyone who owns a home would would like to see their property values maintain or increase. So is there a political angle to this? Or does everyone agree that reform needs to be made here?

Peter Prows  31:06 
Well, I you know, I don't I don't know what everybody thinks. But there are, you know, there's this there's this classic clash these days in California between the NIMBYs in the NIMBYs the not in my backyard and the yes, in my backyard groups. And, you know, when you get down to local politics, all politics is local. And sometimes, you know, people who might identify as, as progressives, like in Marin County, it's a it's a very liberal voting anyway, community. But you know, here we're talking about 47 homes and the Tiburon case that engendered years and years and years of litigation and multiple, you know, multiple lawsuits. And so I don't know whether it's, you know, whether there's a difference between single family homes and multifamily housing, I've certainly dealt with litigation and entitlement work over both kinds of projects, and they have different issues, single family homes, often, you know, they require they require more development footprint. And when you're building in more green space or open space, then then you can have greater impacts to species to wetlands, than you would if the development was concentrated, especially this concentrated in infill, you know, existing neighborhoods. But you know, I don't I don't know that there's a traditional political bent that these groups fall into, it's very local.

Tim Kowal 32:19  
Is there more energy in favor of building high density than the lower density? And I guess my energy? I mean, I would guess that there's, there's more, I'll tell you, from my perspective, you know, I mean, I've got young children, I need to I need a home with a yard, you know, living on top of the of a barber shop, or a liquor store is not going to cut it for me. So the high density thing doesn't, doesn't excite me when I hear about high density in my neighborhood, or my community. I want to I want to see more, more single family homes, but we're pretty built out. But I wonder if, if there are developers who haven't we still have a lot of open space in California. But I don't know that I hear about too many single family developments going on. It's all all the all the talk and energy seems to be in infill high density development.

Peter Prows  33:04 
Yeah, I think, I mean, I've got a project right now in Vacaville, where there's a mix, you know, we've got single family homes, and then you've got multifamily apartment and condo buildings. And, you know, it really i It really comes down to, you know, what the developer thinks the market will support. And there is there is a range of demand for housing, depending on where people are in their lives, I think and, you know, when I was in my 20s, living in an apartment, having an affordable apartment to live in, in New York, or you know, even out here in the Bay Area was, you know, something I needed. And there is a large group of people that that need that kind of housing. But that doesn't work for everybody, obviously. And you know, there should be there should be supply of housing that meets everybody's needs

Jeff Lewis  33:48 
a Peter up, I think our audience would be disappointed if I didn't slip in at least one anti slap question. You pointed me out to the fact that sometimes anti slap motions can be brought by public agencies against writ petitioners. And he pointed me to the Vargas versus City of Salinas case which I had not read before. It's really interesting that when a citizen complains about something the government is doing, the government can procedurally attack the complaint as an abridgment of the of the government's first amendment rights. And I want to ask, does it make sense to you that the government is a person protected by the First Amendment within the meaning of the anti slap law?

Peter Prows 34:27 
Well, the California Supreme Court has said so but I think it makes no sense. You know, the First Amendment was designed as a limitation on the government's ability to restrict the speech of individuals, particularly individuals who complain about the government activity and to protect petitioning activity by by individuals against the government. And I've, you know, I've seen cases where I've brought petitions against public agencies, and they've responded with anti slap motions, which as you both know, are very powerful tools, oftentimes quite righteous but can really make it hard for a petition Shinar to ever see their day in court at least in a timely way. Because they they bring the proceedings to a halt. By and large, they're subject to immediate appeal, whether you win or lose the motion and it the fact that public agencies in California, the California Supreme Court has said can bring anti slap motions against people trying to petition the government for the redress of grievance makes absolutely no sense to me.

Jeff Lewis  35:23 
I tend to agree unless unless it's the pure case where the lawsuit is filed as a result of a public official speech, an individual public officials sued. That might be the case where yeah, you have a righteous anti slap motion. But I tend to agree because there is the potential for for a chilling effect on people's willingness to even risk and anti slap attorneys fee award by filing a simple repetition.

Tim Kowal  35:49 
Yeah, seems to be one of those situations where the distinction matters where they say, individuals have rights, governments have powers. Government doesn't have a First Amendment right government just wield the big stick, doesn't get to use use the Constitution against the people. That's an interesting case. Peter, do you know, has there been any movement in that doctrine, this case that Jeff mentioned, Vargas versus City of Salinas was back in 2009. So that's, you know, 13 years ago, you notice, is there any any trend on that or any decisions following that one way or the other?

Peter Prows  36:24 
There was a more recent decision, boy, and I've got to this makes for bad radio. But there wasn't more recent decision by the California Supreme Court that I believe it was a labor dispute involving a university where the university the petition was really attacking the actual decision of the university and not any speech and the California Supreme Court said, Look at decision, a public decision is not not speech protected by the anti slap statute. And that struck me as correct. And give me just a moment. I'm sure I can find the case.

Tim Kowal  36:55 
Yeah, well, you can look for that. In the meantime, I wanted to ask you about there was another case that you had, you had told me about, and it has to do with administrative mandamus. And this can be, you know, in the abstract sound just as exciting as SQL law. But this has a real punch line to it. So here imagine you have a citizen who is unhappy with an action by the city, maybe there's a city ordinance that, you know, deprive someone of his property, or liberty, or it's or it's unconstitutionally vague. Now, your remedy is to file a petition for writ of mandamus in the Superior Court. But Peter, you'd pointed out to me that the citizens remedy even if he if he wins and gets the remedy, he prays for that mandamus case mandamus remedy may be illusory. What do you mean by that?

Jeff Lewis  37:38 
Well,

Peter Prows  37:39 
unlike in the courts of appeal, where you can get a remand with directions where the Court of Appeal tells the trial court All right, here's how you need to rule on remand, you never get that in almost never get that in a writ of mandamus, administrative mandamus case, the courts are very careful. And I think this goes back to sort of separations of powers concerns. You know, the courts are one branch of government and administrative agencies come from another branch of government and the courts are reluctant to tell the other branch of government what to do. So the the almost universal remedy is simply just to vacate the decision and send it back. And that gives the the the agency just another crack at the whole thing. And if the legal challenges, for example, you didn't make the appropriate findings, well, they just go back and they rewrite the rewrite the decision and make the finding, and you're you're right back where you started. So it's very easy to win a battle but lose a war, if you're not really careful and in what the claims you're bringing are. And whether, you know, as a practical matter, there's there's it becomes difficult for the for the agency to rule against you again on remand, but there's there's very little to stop them from from trying. And yeah, that that was an observation that Justice Brennan made in one of the cases I sent you in, in a dissenting opinion. But yeah, sometimes you can lose the battle and still win the war. That's how easy it is to be a city attorney. And that's right. I've only succeeded once in in getting a remand with directions. And that was in a coastal commission case. We were challenging a permit condition, a public access permit condition, which which in our view went against the terms of of a judgment or prior judgment that required this bridge of our clients to be kept private and not open to the public. And there is a severability clause in the Coastal Act. And we said, look, this, this clause allows you to sever invalid provisions and leave the rest in effect in the Court of Appeal, unfortunately, in an unpublished decision, agreed with me and and remanded with directions, but that's the only time I've ever seen it happen. It's quite rare. So, you know, you've got to, if you're bringing a writ case and you're advising a client, I'd say, you know, you don't want to bring a claim that's easy for the agency to fix because you may just be wasting your your clients time and money. Yeah. Why don't you want to prevail on a claim that might have a real chance of constraining their discretion next time around?

Tim Kowal  39:54 
Well, Peter, when you you emailed me with this case, you'd quoted this this line, see how easy deserves to be a city attorney. Sometimes you can lose the battle and still win the war. And and when you in your email when you quoted that to me you had a case after it Justice Brennan dissenting. I thought that can't really be in a Supreme Court decision, even a dissenting one, but I looked it up and lo and behold, here's here's what it says Justice Brennan, in a footnote, he's quoting justice Brennan's quoting a city attorney, giving this advice at a conference of the National Institute of municipal law officers in California, the quote is here. Here's the heading of of this advice by a city attorney if all else fails, merely amend the regulation and start over again, if legal preventative maintenance does not work, and you still receive a claim attacking the land use regulation. Or if you try the case and lose, don't worry about it all is not lost. One of the extra goodies contained in the recent California Supreme Court case of Selby versus City of San Juan of Ventura appears to allow the city to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever. And everyone starts all over again, see how easy it is to be a city attorney. Sometimes you can lose the battle and still win the war. Good luck and gloat. So that's the that's the footnote from Justice Brennan in San Diego Gas and Electric Company versus City of San Diego. How glib and cynical it is. Now this this opinion was back in 1981. Peter, do you have any idea whether this this attitude persists? Well, I among city attorneys

Peter Prows  41:32 
I well, I don't what I would say is city attorneys are looking for ways to protect their their clients, just as everyone else is I'm trying to be diplomatic here. But you know, mandamus it's an equitable remedy. And even if you even if even if a public agency loses in the trial court and takes the matter up on appeal, if they then amend the regulation, even while the appeal is pending, the Court of Appeal is likely to say that that that's going to moot the appeal. And that's a special power that a public agency has because it has lawmaking an adjudicatory powers that private parties often don't. And if the trial court has identified a problem in your in your decision, and you have the power to fix it, and maybe save some some litigation exposure and uncertainty, then it doesn't at all surprise me that good city attorneys might advise their clients to be proactive.

Tim Kowal  42:22 
Well, you mentioned this goes back to a to a separation of powers concern on the part of judges. They don't want to they have to review the petition in front of them, but they don't want to cross the line into telling city legislators, you know, City Council's you know, sovereigns how to do their job. Do you think they strike the right balance? You mentioned that, you know, sometimes they do Issue? Issue remand with directions? Do you think they strike the right balance in holding back in the majority of cases in your experience?

Peter Prows 42:50  
Well, it's interesting to contrast this attitude with what we saw in the in the MYRIN the Tiburon case where you actually did have a federal stipulated judgment, but nevertheless, the judge signed it. And, you know, maybe it was because the the county in that case, at the time, thought that that was the right resolution. And so the court was less reluctant to be seen to be telling another branch of government what to do. But I think it's, it tends to be good practice in cases where a public agency is involved to try to get a stipulated judgment where you get a court order at the end of the day, rather than just a settlement and a dismissal because City Council's change, and but you know, federal court order is for phase forever, sometimes.

Tim Kowal  43:34 
Yeah, there you go. Yeah, that's one of the other doctrines is that city councils cannot bind future city councils.

Peter Prows 43:40 
Yeah, but you know that that is certainly limited when it comes to a city council. This decision then gets the force of a judgment behind it. Arise judicata can can be even more powerful sometimes. All right,

Tim Kowal  43:52 
well, Jeff, should we should we move on to the lightning round?

Jeff Lewis  43:58 
Sure. It's been a long time. But uh, Peter looks like he's well rested and ready to, to face the music. This is the time for our patented corporate copyrighted segment. That answers the most pressing questions that Vex appellate nerds around the world short responses, one sentence when you can let us know what is your font preference century school book garmont or something else?

Peter Prows  44:20 
In letters? I use Palatino. In appellate briefs, I use century school book.

Jeff Lewis  44:27 
Very good. Very good. I think I know the answer, but two spaces or one,

Peter Prows  44:31 
two spaces. I'm sorry, guys.

Jeff Lewis  44:33  
Yeah, very good.

Tim Kowal  44:34 
Now that's filing already ribeye

Jeff Lewis  44:38 
Superior Court or superior court. Do you capitalize the s&c in superior court?

Peter Prows  44:43 
I do is I mean, especially if I'm talking to that Superior Court, yes.

Jeff Lewis 44:48 
All right.

Tim Kowal  44:49 
Let me go back real quick, Peter to do the two spaces. I can't leave it alone. Is that answer informed by your international experience at the Hey began in London and elsewhere.

Peter Prows  45:01 
No, I bet but maybe it's informed by the fact that I've had to wear glasses since I was five or six and have a harder time seeing sentence breaks where there's only one space rather than two. So it's purely a help the reader meet meaning myself and my bad eyes. concession

Tim Kowal  45:17 
that I award that a valid exempt vacation.

Jeff Lewis  45:22 
All right, do you put a table of contents entry in your table of contents?

Peter Prows  45:26 
I don't, though, I had this discussion last week with one of my other partners, who does put it in there. And maybe I'll change but I think it's a little silly. I guess it's required by the rules, I'm told, but, and I like to comply with the rules, I might need to have a brief kicked. Sorry, I'm violating your one sentence rule. But that's okay.

Jeff Lewis  45:46 
Now, this is strange. Now we're just it's the bog down swamp around instead of lightning

Peter Prows  45:52 
round. So so far, I've gotten away with it without leaving it out. So

Jeff Lewis  45:57 
all right, and when you are have headings in your briefs, all caps, initial caps or sentence case,

Peter Prows  46:04 
you know, I, I now do sentence case, at least for the sort of second level headings. And I think you guys have have turned me around on that, or maybe some of your other guests have, but I think it's your eyes. Yeah, it's much easier on the eyes. And I think it's another way to persuade your reader or explain to your reader what your arguments are, if you use a full sentence in a font that people can actually read. Yeah,

Tim Kowal  46:27 
yeah, the title case has come to jump out the page at me and just strike me as extraordinarily offensive now.

Jeff Lewis  46:36  
Calm down to And final question after major headings in your briefs? Do you start the next section on a new page or you continue immediately below? It depends.

Peter Prows  46:47 
It depends. If I'm sort of maybe more than halfway down the page, then I'll start it on the New page. If there's only a few lines to wrap up the previous section, then I'll probably keep it on the same page. But I don't have a strong opinion about that

Tim Kowal  47:03 
one than a new one. Jeff, what's your practice?

Jeff Lewis  47:06 
You know, they don't charge you for whitespace. Tim, I'm a big fan of using as much white space as you can

Peter Prows 47:10 
in Trump in trial court briefs, where your page limited, you wouldn't go into the next page.

Tim Kowal  47:16 
That's costly and trial court,

Jeff Lewis  47:17 
there's always room to trim words always work and whitespace really is undervalued, I think in terms of making it readability. Alright, well,

Peter Prows  47:26 
I put the I don't know how often you guys put pictures in your briefs, but I, I use them more and more these days. I think, you know, they are worth 1000 words. But they do take up some space. But boy, can they be powerful? Absolutely.

Jeff Lewis  47:40 
Yeah. I love a look, I think I mentioned this podcast before, but I'll say it again, when the Supreme Court ruled about prayer on the 50 yard line. And what was happening at the 50 yard line at football games. Sotomayor had not two but three I think photos of what was happening. And those photographs were really powerful presentation about what what's going on. All right, I violated my own rules about the lightning round. You've survived the dreaded lightning round. And one day we'll send you a cup or mug or a t shirt when we have such mugs or T shirts or do it.

Tim Kowal  48:12  
Alright, Jeff, I think we just had a couple of couple of tidbits we wanted to share with the audience. Yeah, there's one there's one I found about frivolous motions. And when I advise attorneys, these are frivolous motions for reconsideration specifically. Now when I advise attorneys and clients about whether to file a motion for reconsideration, I've come to feel like I'm in a no win situation. Because on the one hand, even if you have no new facts, and no new law, and even if you've blown your your window and filed the motion for reconsideration, the California Supreme Court and brown Winfield and Ken zeroni has held that that doesn't prevent the trial judge from reconsidering anyway, quote, it should not matter whether the judge has an unprovoked flash of understanding in the middle of the night or acts in response to a party suggestion. So on the one hand, I'll say sure filed a motion for reconsideration. What can it hurt, but here's how it can hurt. On the other hand, if a motion for reconsideration is meritless, frivolous or filed in bad faith, the trial court may order sanctions against the movement under Section 120 8.7. That is what happened in banks versus pronounced that master raucous that's out of the second district, second division. It's an unpublished case, but they're a lower court imposed a $960 sanction against plaintiff for bringing a frivolous motion for reconsideration after an adverse summary grant, a result affirmed on appeal because the reconsideration motion did not mention any new facts and cited improper statutes and ordinances. Now, so this, this goes really undermines my original advice that maybe just file the motion for reconsideration because maybe the judge will just have a flash of new understanding that it got it wrong the first time. I would guess, Jeff, that most motions for reconsideration probably are technically invalid for one reason or another. Mostly they're just filed in hopes of getting the judge to have that flash of new understanding that the ruling was wrong the first time but the banks versus master raucous cases. reminder of the risks of sanctions for bringing an invalid motion for reconsideration.

Jeff Lewis  50:05 
Yeah, motions for reconsideration are usually filed when a lawyer doesn't have good client control and can't take the loss.

Peter Prows  50:12 
My first one granted actually not not too long ago. I stand corrected. All right. But it was it was it was a it was a posture where we had a TR o denied in state court. And then and then one in a federal related pending federal action in the ninth circuit, we want to stay of the judgment pending appeal. And and we want it within the 10 days. So we weren't out of time. And we brought that to the trial court's attention and the trial courts, and yet that's a new fact. And so I'm reconsidering this denial. And it was it was the right result. But I was still pretty surprised that it actually is possible to to win one of those motions.

Tim Kowal  50:49 
But if you're one of those safe harbor letters served on you gotta take it very seriously now. Yeah.

Jeff Lewis  50:53 
Yeah. Interesting. All right. And I want to bring to attention one issue that's happening down here in LA. Tim, when I first started practicing law, you show up to court, there's always a court reporter there. And then a few years back because of budget cuts, they started taking away all our civil reporters. So in civil matters, you didn't have court reporters, but you still had them in family law courts, probate courts and writs and receivers. Well, no more in LA County. They've just announced no more court reporters will be automatically provided for family law, probate and writs and receivers. So lawyers practicing those courtrooms in LA Superior Court need to bring their own reporter.

Tim Kowal  51:31 
Yeah, that's got to be tough. There has been a shrinkage in the availability of court reporters. I'm not sure what that goes to. But maybe we can all do some sleuthing and see if we could bring our audience some more information about that.

Jeff Lewis  51:45 
That will include a link to the Southern California pellet news blog, Ben Schatz actually posted a story about this and indicated it's really a shortage of reporters. It's not even a pay issue. It's just they can't they don't have the bodies. Yeah, it'd be a shame when following the absence of these reporters when there's appeals and appellate lawyers like us start doing motions for settled statements, and the courts get bogged down with having to revisit all of these disputed matters. I suspect a solution to the reporter shortage will manifest itself.

Peter Prows  52:18 
I love a good court reporter. Every deposition I'm involved with I always at the end of it, asked the court reporter Hey, what do you think of this witness? You know, because they were witnesses that I have. And I if you can, if you can pigeonhole the court reporter at the end of a deposition and get their take, I find that can be sometimes pretty valuable.

Tim Kowal  52:39 
Yeah, it's funny. All right, Jeff, do you have you got one about one more about slap motions? I'm gonna, I'm gonna save this, this retroactivity and the three strikes law to a future episode.

Jeff Lewis  52:51  
Okay. Yeah. Then the final point we'll bring and then we'll conclude is, it's long been the case in the ninth circuit that the Ninth Circuit's allowed anti slap motions to be heard in federal district courts. And on August 30 2022, a three judge panel rejected yet another challenge to this rule the cases core civic versus candid group. And it'll be interesting to see if this decision is there's a petition to hear this on bonk because I've I've read dissenting opinions and seen writings where a lot of Ninth Circuit judges are not happy to have anti slap motion is heard in the ninth circuit. So I would be shocked if there's not a petition to hear this on. Bonk. So that was it for me for tidbits, Tim.

Tim Kowal  53:31 
All right. Well, sounds good. So that wraps up this episode. And again, we want to thank casetext for sponsoring the podcast each week when we include links to the cases we discussed, we use casetext for our cases and listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/CALP. And if you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  54:03 
Yeah, email us if you're a maritime lawyer, you want to come on the show and explain what maritime law is See you next time.

Tim Kowal  54:09  
Thanks again, Peter, for joining us both.

Announcer  54:11 
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