I Demurrer, You Demurrer, We All Demurrer
Yes, it’s Alice in Wonderland Time again, time for more tea and some Funny Juice and Riddles: How is a raven like a writing desk? How can a judge review an administrative record that isn’t there? Does he seek it here? Does he seek it there? Does he seek it everywhere, that Damned Elusive Pimpernel? And just when did RWQCB’s Roger Briggs get downgraded from “critical” to . . . Roger Who?
Your Attorney General at work. Makes one feel all warm and safe, knowing that he’s on the job protecting the rights of citizens from run amok regulators, doesn’t it?
Press release from PZLDF:
Attorney General Office Files Demurrer in Response to Enforcement Appeal
The demurrer is a legal pleading by a defendant that says “you have not pled enough facts to support a lawsuit.” That is the response to the lawsuit filed May 25th that asks the courts to overturn enforcement actions placed on some of the 45 randomly selected homeowners in Los Osos.
The water board, represented by the State attorney general's office, without admitting or denying the allegations made in the appeal, is telling the court that the petition is not sufficient to warrant the court's time.
The demurrer is a tool often used by the water board to delay and defend against a strong case. The Attorney General's challenges to the Petition include attempts to: reduce the number of petitioners and respondents, to eliminate any CDO recipients who wish to preserve their promised anonymity, to limit any review beyond the administrative record which the agency has refused to produce since November of 2006.
The Prohibition Zone Legal Defense Fund, Gail McPherson says . "the Demurrer' and Motion to strike is a weak attempt to get the Judge to Gut the case before a hearing. The pleading seeks to confuse issues, and raise irrelevant claims in order to remove legitimate arguments from the lawsuit. "
If the State can "slice and dice" the appeal, such as denying review of the regulations, which are the very basis for the enforcement, or remove the parties to the action, it is worth the shot. By tossing in irrelevant commentary in as “facts” some issues might be removed. If these are critical points, the State can develop an advantage before a Judge ever hears the case.
One example is the water board says the Court cannot require the water board to produce the administrative record. Then with circuitous logic states. "until this court has reviewed the administrative record, it should not grant Petitioner's relief (including their prayer requesting preparation of the administrative record)".
Another example of obfuscation is a writ filed by Sullivan and Associates in November 2006, on behalf of the homeowners, in which the Attorney general's office argued that the Court had no jurisdiction to review the water board's proceedings until after cease and desist orders were issued. Now they argue the Court has no jurisdiction to declare that the challenged enforcement actions are unenforceable, and violate Petitioner's constitutional and statutory rights.
The same writ previously asked for key witness Roger Briggs' presence at the enforcement hearings in December 2006. At the beginning of the enforcement hearings, the water board attorney, Lori Okun, characterized the executive officer, Briggs to be a critical witness to the prosecution case, yet he was not available to the defendants for depositions or testimony at the enforcement hearings. The attorney general's office argued and the court ruled this could be brought up after the board hearing.
Now the demurrer claims their actions were already found constitutional and the court still can't review Water Board orders.
Morongo v RWQCB [excerpt below]
On April 28th 2006, A motion to dismiss was filed by Steven Onstot, attorney defending the Los Osos Community Services District in the individual enforcement hearings. This was based on a higher court decision that the water board attorney could not serve to advise both the prosecution and the hearing board.
The Board denied the motion, but Lori Okun was removed from the case based on a possible procedural conflict in May 2006. Recently the decision that was the basis for the motion to dismiss was upheld by the courts, and its principles still apply.
The water board has made it clear that the enforcement could cost Los Osos residents their homes if a 218 vote is not passed and a sewer system build by 2011. Those with the enforcement orders believe both the basis for the enforcement (Resolution 83-13 that limited construction of homes built after 1988), as well as the procedural violations to due process and civil rights are subject to judicial review.
The response to the demurrer and motion to strike is August 9, 2007, and the demurrer will be argued before the Judge Aug 22, 2007.
For more information
Citizens for Clean Water PZLDF Gail McPherson 805-459-4535 or 805-534-1913
Intro excerpt from Morongo v RWQCB:
Is a water right holder facing license revocation by the State Water Resources Control Board (Water Board) deprived of due process of law when the revocation is being prosecuted by the same attorney who simultaneously acted as legal advisor to the Water Board in an unrelated administratiave proceeding? The trial court answered this question in the affirmative. Relying on Quintero v. City of Santa Ana (2003) 114 Cal. App. 4th. 810 Quintero) as conttrolling prescedent, the court issued a writ of mandate ordering the disqualification of Water Board Attorney Samantha Olsen as a prosecutor in the case.
The Water board appeals, claiming that (1) Quintero was wrongly decided and should not be followed by this court, and (2) Quintero is distinguishable and did not require disqualification of Attorney Olson from acting as prosecutor in the revocation proceeding.
We decline the Water Board's invitation to part company with Quintero. We also conclude that the trial court correctly allowed Quintero and other precedents in ordering Attorney Olson disqualified. We shall affirm.