Alameda County Defendants' Request for Judicial Notice and ...

unconstitutional, as of this point such a legal determination has not been made regarding SB1137. There is no authoriy where, as here, County Defendants have not threatened theenforcement of SB 1137 against any named party. And further, even if Plaintiffs had so alleged,generally an injunction will not be granted to protect a person from prosecution for allegedcommission of a criminal offense since the court has jurisdiction over criminal offenses and is'the proper forum in which such questions must be determined. (See Pitchess v. Superior Court(1969) 2 Cal.App.3d 644-648, a case in which it was alleged that a constitutional statute wasbeing unconstitutionally applied to the owners of a bar.)The case of Alfaro v. Terhune (2002) 98 ~al.App.4'~ 492-kiO1,cites the four situationswhere public officials may be enjoined from enforcing a public statute by officers of the law for apublic benefit, as exceptions to C.C.P. 5 526(b) and Civ. Code § 3423(d). Those exceptionsare: "(i) where the statute is unconstitutional and there is a showing of irreparable harm to thenamed plaintiffs by defendants, (ii) where the statute is valid but enforced in an unconstitutionalmanner, (iii) where the statute is valid but, as construed it does not apply to the plaintiff and (iv)where the public authorities' actions exceed his or her authority." In the instant case, Plaintiffshave alleged that SB 1137 is unconstitutional under the first exception, but they have utterlyfailed to state facts that show irreparable harm to them as a result of any alleged CountyDefendants' actions. Indeed, they have not even alleged facts to establish that such an actionis either imminent or threatened as to Plaintiffs. (See Cohen, supra, p. 453)More importantly, as set forth by the Supreme Court in Tobe v. City of Santa Ana (1995)9 Ca1.4'~ 1069, there are only two theories under which one may attack the constitutionality of astatute or ordinance. The first is a "facial" challenge, asserting that the statute on its face isunconstitutional. The second theory is that the statute, "as applied", is unconstitutional. In thelatter instance, the Supreme Court has been clear that an "as applied" challenge contemplatesthe analysis of facts in a particular situation that either are occurring or have been applied in thepast. (Tobe, supra, p. 1084) No such facts have been - or can be - alleged in this case as thestatute at issue, SB 1137, was just recently enacted by the Legislature and signed by theGovernor on July 12,2006. (See Complaint, p. 2, v) This Court issued a TRO the very nextCounty Defendants' Demurrer to Plaintiffs' Complaint I Case NO. RG06-278911 7