City's
Petition for Rehearing
FILED
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
CENTRAL JUSTICE CENTER
FEB 24, 2005
KIMBERLY HALL
BARLOW, CITY ATTORNEY (SBN 149902)
MARIANNE MILLIGAN (SBN 170740)
CITY OF COSTA MESA
77 Fair Drive
Costa Mesa, CA 92626
Phone: 714-754-5399
Fax:
714-754-4949
Attorneys for City
of Costa Mesa
APPELLATE DIVISION
OF THE SUPERIOR COURT OF THE STATE OF
CALIFORNIA,
COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
APPELLATE CASE NO.:
AP-14168
SUPERIOR COURT / CITATION NO.:
CM46167PE
PETITION FOR
REHEARING AND APPLICATION FOR
CERTIFICATION
PEOPLE OF THE STATE
OF CALIFORNIA
Plaintiff and Respondent
vs.
[[ ]] FISCHETTI
Defendant and Appellant.
Respondent
herein petitions this Honorable Court for a
rehearing of the above-entitled matter.
Alternatively, respondent requests that this
matter be certified for transfer to the Court of
Appeal pursuant to Rules of Court 62 and
63(a) [[now re-numbered at 8.1002 and
8.1005]].
ARGUMENT
I.
THE COURT HAS ERRONEOUSLY INTERPRETATED
[[sic]] CALIFORNIA VEHICLE CODE SECTION 21455(c)
TO ONLY ALLOW A “SINGLE” GOVERNMENTAL AGENCY TO
OPERATE AN AUTOMATED ENFORCEMENT SYSTEM.
California Vehicle
Code § 2 1455(c)[1] states:
“Only a governmental
agency, in cooperation with a law enforcement
agency, may operate an automated enforcement
system. As used in this subdivision, ‘operate’
includes all of the following activities: . . ."
The Appellate Court has misinterpreted §
21455(c) to require that only” ‘a’ single
governmental agency” (emphasis added) may operate
an automated enforcement system (“AES”). The
Court’s ruling also fails to recognize or
acknowledge that Caltrans a governmental agency.
There is no requirement anywhere in this statutory
scheme that indicates that no more than one
governmental agency may operate an AES together.
The Court’s interpretation of this provision fails
to recognize that there are hundreds if not
thousands of intersections throughout California
that have shared “control” of an intersection with
or without written agreements between the agencies
in question. Every intersection that meets at the
borders of two cities, a city and county
jurisdiction or county and state jurisdiction must
by their very nature have shared “control” of that
intersection. In interpreting this statute in this
narrow way, the Appellate Court fails to recognize
the interdependence governmental agencies have in
numerous circumstances. For example, many agencies
have no written agreement amongst themselves, but
provide mutual aid to not only surrounding
agencies, but out of state during times of
national or even international emergencies. If
taken to its logical conclusion, the Appellate
Court would find that this mutual aid is not
permitted because there is no written contract for
such services and is therefore unreliable.
In interpreting a
statute, “If possible, the words should be
interpreted to make them workable and reasonable
[citations], practical [citation], in accord with
common sense and
[[Footnotes]]
[1]
All further references are to the
California Vehicle Code unless otherwise
specified.
[[Footnotes end]]
justice, and to
avoid an absurd result [citations].” Halbert’s
Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.
App. 4th 1233, 1239-1240. To interpret this
provision as limiting the operation of an AES to
only a “single” governmental agency, as the
Appellate Division has in this case is completely
contrary to both practicality and the statutory
purpose of this provision. If the Appellate
Court’s interpretation is correct, AES would not
be allowed at thousands of intersections
throughout California that may benefit from such
installations, which is completely contrary to the
Legislature’s intent to enable governmental
agencies to implement these systems for the
health, safety and welfare of their citizens.
As indicated in
Respondent’s original Brief, the purpose of the
requirement that only governmental agencies can
“operate” an AES is to prevent the vendor of the
system from jeopardizing the integrity of the
traffic signals or the yellow phase times. The
Appellate Division ignored that Officer Wadkins
testified “as to the foundational requirements
under Vehicle Code §~ 21455.5, 21455.6 and
21455.7.” See SS page 1, lines 23-24. This includes the fact
that the signal timing was verified to be
compliant with § 21455.7 prior to operation of the
automated enforcement system for each monitored
approach. Caltrans, a governmental agency, in
conjunction with the City of Costa Mesa, another
governmental agency does in fact have “control”
over all of the activities listed in § 21455.5(c).
There is nothing in this provision that
specifically states or even implies that only a
“single” governmental agency can operate an AES.
To the contrary, common sense and Legislative
intent warrant just the opposite interpretation,
which is that more than one governmental agency
can operate an AES with or without a written
agreement, so long as the provisions of 21455.5(c)
are satisfied. Officer Wadkins testified that
these provisions had been met and there was no
contradictory evidence submitted. Therefore, the
trial court’s decision on this matter was correct.
Because of the
Court’s erroneous interpretation of this
provision, Respondent is entitled to a rehearing
of this matter.
II.
THE COURT HAS ERRONEOUSLY INTERPRETATED
[sic] CALIFORNIA VEHICLE CODE SECTION 21455(b) IN
RULING THAT A 30-DAY GRACE PERIOD MUST BE PROVIDED
UPON THE INSTALLATION OF AN AES TO EACH
INTERSECTION.
Section 21455.5(b)
provides:
“Prior to issuing
citations under this section, a local jurisdiction
utilizing an automated traffic enforcement system
shall commence a program to issue only warning
notices for 30 days. The local jurisdiction shall
also make a public announcement of the automated
traffic enforcement system at least 30 days prior
to the commencement of the enforcement program.”
(Emphasis added.)
“The words of the
statute must be construed in context, keeping in
mind the statutory purpose, and statutes or
statutory sections relating to the same subject
must be harmonized, both internally and with each
other, to the extent possible. [Citations.]”
Dyna-Med. Inc. v. Fair Employment and Housing Com.
(1987) 43 Cal. 3d 1379, 1387. Therefore, this
provision must be read in conjunction with the
entire statutory scheme.
The entire statutory
scheme refers time and time again to the “system.”
For example, §21455.6 states that “A city council
or county board of supervisors shall conduct a
public hearing on the proposed use of an automated
enforcement system. . .“ (emphasis added);
§21455.5(c) provides that “Only a governmental
agency... may operate an automated enforcement
system.” (emphasis added); § 2 1455.5(d) states
“The activities listed in subdivision (c) that
relate to the operation of the system. . .
(emphasis added); § 21455.5(a)(2) states “If it
locates the system at an intersection, and ensures
that the system meets the criteria. .“ (emphasis
added). In fact, Webster’s Dictionary defines a
“system” as “a regularly interacting or
interdependent group of items forming a unified
whole.” See Merriam-Webster’s Collegiate
Dictionary 1194 (10th ed. 1993).
In contrast to the
use of the word “system” when referring to a
citywide program or system, when the Legislature
referred to individual cameras, it uses the word
“equipment”. Had the Legislature intended that the
term “system” refer to each individual camera, it
would have consistently used one word
or the other. However, the Legislature has clearly
distinguished between “system” and “equipment” and
consistently differentiates between these two
distinct words throughout the statutory scheme. It
is obvious that when using the term “system”, the
Legislature is referring to the overall
coordination and organization of all the AES
throughout the entire agency. When it uses the
term “equipment”, it is referring to each
individual camera that together make up the
“system”. (See
21455.5(2)(B) and (C) [ensuring that the equipment
is regularly inspected; certifying that the
equipment is property installed...] When statutory
language is clear and unambiguous, there is no
need for construction. People v. Belleci (1979) 24
Cal. 3d 879, 884, 157 Cal. Rptr. 503, 507. It is
clear by the plain meaning that the word “system”
used throughout the statutory scheme means the
agency’s overall plan for installations of a
number of AES at designated intersections
throughout the agency’s jurisdiction. It is simply
implausible to believe that the Legislature
intended to interpret this statutory scheme to
require that a city council must conduct a public
hearing prior to the installation of an AES at
each intersection, when at the initial public
hearing required, the number and location of the
AES installations were discussed. Based on the
entire statutory scheme, it is clear that the
Legislative intent was to provide for the public
notice and 30-day grace period only upon the
installation of the first AES installation in the
City.
There is no evidence
presented to contradict the fact that Respondent
did in fact comply with both the public notice and
30-day grace period upon installation of the AES
at the first intersection in the City as required
by § 21455.5. See
Settled Statement on Appeal (“SS”), page 1, lines
26-28.
Therefore, because
of the Court’s erroneous interpretation of this
provision, Respondent is entitled to a rehearing
of this matter.
III.
THIS COURT SHOULD CERTIFY THE PRESENT CASE
FOR TRANSFER TO THE COURT OF APPEAL IN ORDER TO
SETTLE IMPORTANT QUESTIONS OF LAW.
In the event that
the Petition for Rehearing is denied, it is
Respondent’s position that this case meets the
criteria for certification to the Court of Appeal
pursuant to California Rules of Court
62 and 63(a). The Appellate Division’s ruling in
this matter embodies an “important question of
law” within the meaning of rule 63(a) in that it
decides a question of first impression in the
interpretation of California Vehicle Code § 21455
et. seq. and further involves a factual situation
likely to be the subject of persistent litigation
in the future.
Governmental agency
operations of AES throughout the State are growing
on a daily basis. Many intersections in which
these AES are installed are or may be at
intersections “controlled” by two separate
governmental agencies. The Appellate Division’s
decision has the potential of impacting numerous
agencies throughout California. AES that have
already been installed, at great cost to cities
and other governmental agencies and therefore the
taxpayers have already been affected. If this
ruling stands, many agencies may be faced with the
additional high cost of relocating these AES from
these “dual” controlled intersections.
Furthermore, every
agency contacted by and who has made contact with
Respondent regarding this ruling has advised
Respondent that their agency had also interpreted
§21455.5(b) as only requiring a public notice and
30-day grace period for the installation of the
AES at the first intersection at which that agency
installed an AES. If this ruling stands, again,
many agencies throughout California will be
affected and may be faced with substantial costs
in complying with the Court’s ruling in trying to
“un-ring the bell”.
X. CONCLUSION.
Based on the
foregoing, Respondent respectfully requests that
this Court grant a rehearing or, in the
alternative, that the instant case be certified
for transfer to the Court of Appeal.
DATED: February 24,
2004 [[sic - 2005]]
CITY OF COSTA MESA
By: [[signature]]
MARIANNE MILLIGAN
Sr. Deputy City Attorney
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