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

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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
day preventing application of SB 1137 in Alameda County. While Plaintiffs have alleged generalfears they harbor if implementation of SB 1137 occurs, such as the overcrowding of jails andother potential problems, they have failed to allege any specific factual situation where thestatute has been applied or is about to be applied by the County Defendants.The Plaintiffs herein, only two of whom have any alleged connection whatsoever withAlameda County, have brought this as a taxpayer action pursuant to C.C.P. § 526(a). However,they fail to cite any pending acts in the County of Alameda that would cause any immediateharm to them as taxpayers, in Alameda County, as a result County Defendants' actions withregard to SB 1137. Indeed, they can only speculate as to what they allege "will likely result"(Complaint, p 8:8-9) if County Defendants implement SB 1137 in a manner that theyhypothesize. Such speculation is insufficient to establish a legal basis for a dispute with CountyDefendants. "The courts of this state are not empowered to render advisory opinions to satisfythe curiosity of parties motivated by reasons ulterior to the resolution of an actual dispute. Hererespondents do not claim to have an actual dispute with appellant (or anyone else). ...[ tlhisaction is merely a general challenge to the statute, posed in a vacuum; no specific application ofthe statute is involved." (Fiske v. Gillespie (1988) 200 Cal.App.3d 1243-1246)Wthout any real parties in interest who are presently threatened with the application ofthis statute by the named County Defendants, under the standard of Tobe, supra, p. 1084, thePlaintiffs' Complaint is in reality solely a facial challenge to the constitutionality of SB 1137.The Supreme Court, in the case of Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168-180, described such a purely facial challenge as a heavy burden to prove. "Unlike the federalConstitution, which is a grant of power to Congress, the California Constitution is a limitation orrestriction on the power of the Legislature. Two important considerations flow from this fact.First, the entire lawmaking authority of the state, except the people's right of initiative andreferendum, is vested in the Legislature, and that body may exercise any and all legislativepowers which are not expressly, or by necessary implication denied to it by the Constitution.Secondly, all intendments favor the exercise of the Legislature's plenary authority: 'If there isany doubt as to the Legislature's power to act in any given case, the doubt should be resolvedCounty Defendants' Demurrer to Plaintiffs' Complaint I Case No. RG06-278911 8
Page 1: I1I II IRICHARD E. WlNNlE [68048]Co
Page 4 and 5: I RICHARD E. WlNNlE [68048]Countv C
Page 6 and 7: TABLE OF AUTHORITIESSTATE CASES'978
Page 8 and 9: I. INTRODUCTIONThis demurrer is bro
Page 10 and 11: 219-21). The Plaintiffs continue by
Page 12 and 13: Indeed, Plaintiffs' Complaint and M
Page 16 and 17: in favor of the Legislature's actio
Page 18 and 19: defendant). For the foregoing reaso
Page 20: I II IDECLARATION OF SERVICEGardner

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

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