Government Liability Update

Ordinance Requiring Spaying or Neutering of Pets Is Constitutionally Valid Exercise of Police Power

In Concerned Dog Owners of California v. City of Los Angeles, published April 29, 2011, the Second District Court of Appeal, Division One upheld a trial court decision rejecting a constitutional challenge to a city ordinance requiring pet owners to spay or neuter dogs and cats with limited exceptions.  The city's legislative solution to the problems of pet overpopulation was a legitimate exercise of the city's police powers, the appellate court ruled.  The court rejected the plaintiff group's arguments that the ordinance violated constitutionally-protected rights of free speech, free association, equal protection, due process, and individual liberties.  It also rejected contentions that the ordinance was overbroad and vague, constituted a taking of property without compensation, and granted city officials unfettered discretion concerning exceptions to the spaying/neutering requirements.

Illegal-Immigrant-Reporting Statutes Do Not Impose Mandatory Duty to Prevent Murders by Illegal Aliens

In Bologna v. City and County of San Francisco, published January 31, 2011, the First District Court of Appeal, Division 3 rejected an argument that the city could be held liable for the decedents' murders by an illegal alien (who was also a member of a gang) because the City had enacted "sanctuary policies" against reporting arrested illegal aliens to federal authorities.  The plaintiffs contended that under Evidence Code section 669 (negligence per se) and Government Code section 815.6 (mandatory duty liability), Health & Safety Code section 11369 and 8 U.S.C. 1373 imposed a duty on the city to report arrested illegal aliens to federal immigration authorities.  The court concluded that neither statute was intended to prevent illegal aliens from committing murder.  Section 11369, which requires arresting agencies to report drug offenders whom they believe to be illegal aliens, was intended to combat the drug trade, not murders.  Section 1373, which bars local governments from restricting public entities or employees from reporting to federal immigration officials, was intended to combat illegal immigration, not murder.  That both statutes might have an incidental benefit in preventing violent crime was not enough.

California Supreme Court Upholds Proposition 8

In its May 26, 2009 decision in Strauss v. Horton, the California Supreme Court ruled that California voters had the power to amend the state constitution to provide that marriage is only between a man and a woman.  Opponents of Proposition 8 had argued that the measure was not just an amendment to the constitution (which can be accomplished by initiative), but a revision of the constitution (which cannot).  The Supreme Court rejected this argument.  It did, however, uphold the same-sex marriages carried out in California under Proposition 8.