Chapter 22 – Berkeley Goes to Court

Note: This history was written by David Mundstock and republished here with his permission. The opinions in this piece are his and do not necessarily reflect the positions of BCA members. For original link go to

The l980-l98l Budget

With the extra two million dollars or so anticipated from Measure E, the budget was balanced and progressed smoothly towards passage. Taking recommendations from both the Citizens Budget Review Committee and Mayor Newport, the Council adopted its l980-8l budget on July 8, l980 by a 5-2-l party-line vote.

This budget restored the library to pre-Proposition l3 levels, rescinded all proposed staff layoffs, and increased funding for both community service agencies and park maintenance. An alternative budget proposed by Shirley Dean, Gilda Feller and Sue Hone was rejected. It would have cut funds for community agencies while spending more for parks, recreation centers, and litter control. Unlike the previous year when he voted with BCA, Bill Segesta supported the Council minority budget after it was modified to suit him.

The Rent Board Begins

With each Councilmember making one individual appointment, the new Measure D Rent Stabilization Board included rent control veterans Rich Illgen (Florence McDonald ) and Marty Schiffenbauer (Veronika Fukson). With Carole Davis appointing rent control supporter Franchesca Callejo, the Board had a 5-4 pro-Measure D majority. Rich Illgen was elected chairman.

At its June 26, l980 meeting, the Council voted to loan the Rent Board $l73,000 for start-up costs, the money to be repaid from the registration fees for rental units.

Hostile landlords confronted the Rent Board immediately and refused to register their rents in defiance of Measure D. The Rent Board’s efforts to compel registration would be one of the new struggles that marked the l980’s.

Meanwhile the Berkeley Tenants Union looked with disfavor on the Rent Board for several reasons. From BTU’s perspective, an appointed board was inherently illegitimate. To make things worse, the Tenant’s Union felt totally unrepresented on the board, which consisted entirely of BCA/BDC types.

The Rent Board hired attorney Zona Sage as its Director. Sage had an administrative law background working for the California State Bar on attorney discipline cases. Rachael Richman, former head of the BCA tenant counseling project, later joined the Rent Board staff.

Facing budgetary difficulties, staffing and workload problems, internal divisions, lawsuits, and political attacks from both the landlords and BTU, the Berkeley Rent Stabilization Board began life as a perpetually endangered species.

Berkeley Goes to Court

Whenever the City of Berkeley embarks on a new program, either through Council action or passage of a citizens’ initiative, there is a high likelihood of a lawsuit. The judicial Sword of Damocles seems to forever hang over the Council chambers. Berkeley’s political and legal histories are thus inseparable.

In the decade following the l97l election, as progressive ideas became city policy, the California Courts were asked to overturn a vast array of Berkeley programs. The mortality rate among both Council measures and citizen initiatives has been high, but a great many precedent setting measures still managed to survive the judicial onslaught. Excluding the redevelopment, campaign reform, and rent control cases previously discussed, here is a summary of the major winners and losers:

Lawn Bowling: A Lesson in Contract Law

On March 27, l972, the Council voted to convert one of two city-owned west Berkeley lawn bowling greens into a mini-park. This action was a triumph for a group of volunteer activists, the Neighborhood Committee for a Public Park, whose leaders included Sheila Many, Dan Horodysky, and Charlie Dohr. They convinced the Council that the community needed a park that was open to everyone, rather than a lawn bowling green used by only a select few.

The disputed turf was controlled by the Berkeley Lawn Bowling Club, a private organization composed mainly of well-off senior citizens, few of whom lived in Berkeley. The entire situation appeared to be a perfect example of recreation for the rich, even though club membership was nonrestrictive. There simply weren’t too many west Berkeley citizens interested in lawn bowling.

But the lawn bowlers held a twenty year lease with the city for their clubhouse. Under that and other leases dating back to l930, the Lawn Bowling Club claimed the city was legally obligated to maintain both existing greens.

The case of Berkeley Lawn Bowling Club v. City of Berkeley (l974) 42 Cal.App.3d 280, ll6. Cal.Rptr. 762 was a triumph for the status quo. Although future Superior Court Judge Dawn Girard intervened to help defend the city on behalf of the Neighborhood Committee for a Public Park, the lawn bowlers won every battle. Alameda County Superior Court Judge Robert Kroninger ruled that the city was contractually prohibited from harming either green or interfering with the club’s exclusive use and supervision of the greens. The Court of Appeals affirmed Judge Kroninger’s issuance of a permanent injunction against the city.

As a consolation to the neighborhood, the city built a mini-park on land near the greens. The park was named for Charlie Dohr, the feisty, outspoken retired teacher who personified the neighborhood’s populist struggle against the lawn bowlers. The lawn bowling greens were safe until the lease expired in l983.

Affirmative Action Bites the Dust

In July l972, following a year of acrimony, the Council adopted an affirmative action program that was designed to increase the number of minorities and women hired and promoted into city jobs traditionally closed to them. (See page 28). The affirmative action plan was a major political achievement of the l97l-72 Council, with the objective of a municipal workforce that reflected the characteristics of Berkeley’s diverse population.

The affirmative action program contained a number of race and sex conscious classification techniques and hiring priorities to achieve its purposes. Although “goals and timetables” were used instead of strict quotas, the program was overtly intended to favor minorities and women.

Use of the affirmative action program to fill Fire Department vacancies in l974 produced a lawsuit by white firefighters who claimed there were passed over for promotion on account of their race. Plaintiffs charged that the affirmative action program amounted to unconstitutional reverse discrimination in favor of less qualified minority applicants.

The white firefighters promptly won a Federal District Court decision, Brunetti v. City of Berkeley, l975, unpublished opinion. A companion case in state court went on for seven years longer. The city’s affirmative action plan lost in four separate rulings, three by the Court of Appeals, finally ending with the decision in Hiatt v. City of Berkeley (l982) l30 Cal.App.3d 298, l8l Cal.Rptr. 66l.

The Hiatt Court declared that the affirmative action program’s provisions “were in conflict with the equal protection guarantees of both federal and California Constitutions.” The fact that Berkeley had not discriminated against minority and female job applicants in the past removed any legal justification the city might have had for establishing preferential hiring. Relying on the recently decided case of University of California Regents v. Bakke, plus the numerous other precedents, the Court held that Berkeley could not constitutionally favor women and minority applicants in order to rectify a history of discriminatory employment practices in American society as a whole.

The City Council made no effort to adopt a new affirmative action program. In the decade since the courts first invalidated the l972 plan, affirmative action has remained a dominant city policy, now implemented under the City Manager’s broad discretionary hiring powers.

Whose Police Department?

The battle for control over the Berkeley Police Department developed into a multi-faceted tug of war between the City Manager/Police Chief, the City Council, the Police Review Commission (PRC), the Police Officers Association (BPA), and the California Attorney General.

Half a dozen major lawsuits involving various combinations of these parties were conducted during the l970’s beginning with the Berkeley Marijuana Initiative case. (See page 74). The BMI litigation was a victory for Attorney General Evelle Younger, along with a similar suit in which the Court of Appeals held that California law preempted the Berkeley City Council from allowing city residents to obtain access to their state police records. Younger v. Berkeley City Council (l975) 45 Cal.App.3d 825, ll9 Cal.Rptr. 830. Attorney General Younger thus completed a perfect 2-0 record suing the city on the issue of state rather than local control of the police.

In the remaining cases there has been no overall winner, but the San Francisco law firm of Carroll, Burdick, and McDonough, attorneys for the Berkeley Police Association (BPA), the officers’ union, has set the legal agenda by filing more lawsuits than anyone else. This same firm also won the Hiatt case voiding Berkeley’s affirmative action program.

The Berkeley Police Review Commission (PRC) initiative, approved by the voters in April l973, was a precedent setting measure. Across the country, nearly every proposal for civilian review of the police had fallen victim to police department opposition. Following the initiative’s victory, a Berkeley taxpayer represented by Carrol, Burdick, and McDonough sued to have the PRC ordinance invalidated on the grounds that it conflicted with the City Manager’s exclusive powers under the Charter to administer the Police Department.

In the City of Berkeley’s first major legal victory of the l970’s, both the Superior Court and the Court of Appeals rejected nearly all of plaintiff’s arguments.  Brown v. City of Berkeley l976) 57 Cal.App. 3d 223, l29 Cal.Rptr. l.

The Appellate Court upheld the fundamental nature of the ordinance which “is directly aimed at inquiring into and investigating the policies, practices and procedures of the police department.” A few sections of the initiative, such as the PRC’s power to “recommend” disciplinary action against individual officers, were found to conflict with the Charter and therefore declared void. But the PRC could still hold hearings on complaints against officers and determine whether the charges were justified. Thus, the Police Review Commission became the first Berkeley initiative to emerge nearly unscathed from the legal gauntlet.

The PRC promptly won a second appellate case brought against the city by the BPA. The City Manager and Police Chief Wesley Pomeroy, (a liberal hired with PRC support), had agreed in l976 to supply the PRC with reports from the Police Department’s own internal investigations of police misconduct. Since the PRC and the department could both be investigating the same cases, this was a bold attempt at cooperation. As a part of the arrangement, a PRC member and a police department representative would also attend each other’s hearings.

The BPA sued on the grounds that the new policies could not be implemented unless the city first met and conferred (negotiated) with the Police Association as provided by the state’s collective bargaining law.

The court rejected this claim, ruling that the city’s cooperation with the PRC was a “managerial decision”, not a condition of employment such as wages or hours that would come within the scope of the meet and confer requirements. Berkeley Police Association v. City of Berkeley (l977) 76 Cal.App.3d 93l, l43 Cal.Rptr. 255.

In spite of this decision, the BPA continued to follow a policy of nearly total non-cooperation with the PRC. Officers refused to testify at PRC hearings, regardless of whether they were accused of misconduct or merely witnesses to the events in question. The PRC’s struggle for officer testimony would continue into the l980’s as the BPA proved to be a most stubborn adversary.

Many of the BPA lawsuits have a special irony because the association really does function as labor union, although one with a strong right wing political stance. Thus, the BPA often sues the City of Berkeley to uphold worker rights, as in the notorious case of Inspector Charles Crane.

While off duty on April l6, l974, Inspector Crane fired his revolver at three fleeing black teenagers who were allegedly caught in the act of burglarizing an automobile. One of them was wounded. The Berkeley Police Department’s strict gun policy only allows an officer to use a gun in response to a life threatening situation. Crane, who is white, had not only violated department regulations, his alleged trigger happy behavior received wide press coverage and he was publicly accused of racism. “Mad Dog” Crane was denounced by black community speakers before the City Council.

City Manager John Taylor fired Inspector Crane four days after the shooting, an action commended by Councilmembers. Crane immediately invoked the binding arbitration provisions of the city’s memorandum of understanding (contract) with the BPA. Under the contract, the arbitrator’s decision would be final and binding “to the extent permitted by the Charter of the City.”

On March 6, l975, arbitrator William Eaton ruled that because of several factors, including Crane’s exemplary record, the extreme stress he was under, and the city’s failure to properly explain the consequences of violating the gun policy, Crane’s proper punishment should have been a temporary suspension, not dismissal.

City Manager Taylor refused to follow the arbitrator’s decision, asserting that binding arbitration in this case conflicted with the City Manager’s exclusive power under the Charter to discipline and remove city employees. BPA and the city each filed suit.

Note that the legal arguments here are reversed from those presented in the first PRC case, Brown vs. the City of Berkeley. At that time, Carroll, Burdick, and McDonough claimed the City Manager’s exclusive powers under the Charter conflicted with establishment of a citizens police review commission. Now the BPA lawyers rejected such a strict interpretation of those same Charter provisions, arguing instead that the City Manager’s powers were subordinate to the binding arbitration provisions in a union contract. The city’s legal posture was similarly inconsistent, especially since no objection had apparently been raised to the arbitration until the decision was issued.

Both the Alameda County Superior Court and the Court of Appeals ruled that, regardless of City Manager and City Council approval, binding arbitration provisions violated the Berkeley City Charter and were therefore void. The Manager had no legal authority to surrender his Charter imposed disciplinary powers to an outside arbitrator, even if the arbitration provisions were part of a duly negotiated union contract which the Manager had helped develop and which he had recommended to the Council for approval.

Thus, Crane stayed fired because the City Manager could disregard the arbitrator’s decision. Taylor v. Crane (l977) l40 Cal.Rptr. 468.

However, binding arbitration was becoming a major goal of unions representing public employees. Thus, the Crane decision took on state wide significance as an impediment to union effectiveness. In this larger context, the liberal, pro-labor position was support for binding arbitration. The California Supreme Court, a friend of the labor movement, granted a hearing to Inspector Crane, making this only the second Berkeley case to be taken by the high court. (The other one was Birkenfeld, the rent control precedent.)

Chief Justice Rose Bird wrote the decision for a court that only disagreed about the reasons why Crane had to be reinstated. Overruling the lower courts, the majority held that binding arbitration in this matter was not an unlawful delegation of the City Manager’s powers and ordered Crane re-hired with back pay pursuant to the arbitrator’s ruling. A minority of three justices felt Crane should be re-hired because the city substituted illegal binding arbitration proceedings for the administrative remedies specified in the Charter. Taylor v. Crane (l979) 24 Cal.3d. 442, l55 Cal.Rptr. 695.

Inspector Crane later resigned voluntarily to become an investigator for Carroll, Burdick, and McDonough. Thanks to his case, Berkeley’s California Supreme Court record fell to 0-2.

Berkeley plays the Oakland Raiders

Several years prior to their departure from Oakland to Los Angeles, the National Football League’s Raiders made an unsuccessful attempt to establish a second home in Berkeley. While this foray raised major issues of traffic congestion and city/university relations, the court contest ended up as a tax case.

The University of California Regents and the Oakland Raiders signed a three-year contract in l972 for the Raiders to play several pre-season games in Memorial Stadium, home of the Golden Bears, U.C. Berkeley’s college football team. Since Memorial Stadium’s seating capacity greatly exceeded that of the Oakland Coliseum where the Raiders played to sell out crowds, the change of location made economic sense for the pro team. It was also a great deal from U.C.’s point of view because rent would be paid for an otherwise vacant stadium in which only half a dozen games took place each year.

But neither the Raiders nor the University considered the response of local residents to their arrangement. Memorial Stadium was built just after World War I, prior to the age of universal automobile ownership. By the l970’s, Cal’s field was one of very few major sports stadiums to be virtually without parking facilities.

Thus, even for Cal games, parking is terrible, as thousands of cars compete with neighborhood residents for every available space on streets within a wide radius of the stadium. Sororities and fraternities make a fortune selling parking places, often charging nearly as much for parking as for a game ticket. Keep in mind that (l) except for one or two games a year, Cal plays before far less than a full house, and (2) a large percentage of Cal football fans, especially students, walk to all the games.

Along came the Oakland Raiders with their devoted fans from all over Northern California. These were automobile-oriented fans, used to the cavernous Oakland Coliseum Parking Lot bordering the Nimitz Freeway. Comparatively few walked to Memorial Stadium. Descending on Berkeley with their cars, the Raiders fans created a parking/congestion catastrophe that seemed to strangle the city. Nothing compared with it, not even the “Big Game” against Stanford, and that only happens once every two years. The Raiders planned several games a year in Berkeley, perhaps, (it was rumored), even making Memorial Stadium their new home field.

The outcry against the Oakland Raiders games in Memorial Stadium was overwhelming and came from all parts of the Berkeley political spectrum. The U.C. administration was universally condemned for having arrogantly brought the Raiders and their traffic congestion into Berkeley without first consulting either the city government or the residents. Obviously, the University had no interest in being a good citizen. For the sake of a fast buck, U.C. was willing to victimize many thousands of its neighbors.

Berkeley City Councilmembers wanted to drive the Raiders out of town, but were horribly uncertain how best to accomplish this. In response to the public’s call for action, some Councilmembers favored a simple ban on professional football. However, the University of California’s status as a state institution made it immune from local regulations. Council passage of a professional football ban might be just an emotionally satisfying gesture, devoid of legal effect. The Council seemed paralyzed, unable to do more than complain.

After consulting with attorneys, Councilwoman Sue Hone came up with a crafty idea: a professional sports tax. Hone lived closer to Memorial Stadium than any other Councilmember and it was fitting that she would record one of her finest moments in office helping repel the Raiders invasion.

After a lengthy delay, Hone’s proposal became a l0% tax on the gross receipts from professional sports events held in Berkeley. Disregarding objections from the Raiders (who were the only pro team in town), the Council adopted the new tax as an emergency ordinance on July 9, l974. The tax functioned as an official city policy declaring the Raiders to be unwelcome. If valid, the tax would also put a severe dent in the Raiders margin of profit from the Memorial Stadium games.

After passage of the professional sports tax, the following took place: l. The Raiders played the final games in Berkeley under their contract, but refused to pay the tax; 2. The contract was not renewed for additional games; 3. The Raiders sued Berkeley to nullify the tax as an illegal city regulation of sovereign state property held by the U.C. Regents.

Alameda County Superior Court Judge George Phillips issued an injunction against collection of the tax. But the Court of Appeals reversed his decision, holding that, regardless of the Berkeley City Council’s motives, the tax itself was a valid revenue measure that contained no illegal regulatory provisions aimed at the University of California. As users of state property within Berkeley, the Oakland Raiders were held subject to the city tax on an equal basis with everyone else, since the Raiders were a private company, not the State of California. Oakland Raiders v. City of Berkeley (l976) 65 Cal.App. 3d 623, l37 Cal.Rptr. 648.

After the California Supreme Court refused to hear the case, the Raiders ultimately paid the tax and never returned to Berkeley.

This was an upset victory for the Berkeley City Attorney’s Office, marking the first time in a l970’s political case that the city had overturned an adverse Alameda County Superior Court decision on appeal.

Perhaps the key legacy from the Raiders invasion was a pervasive resentment among Councilmembers and Berkeley citizens alike at U.C.’s callous disregard for the impacts of its actions upon the city. Secondarily, Berkeley’s inhospitable treatment of his team had to be a factor in Raider owner Al Davis’ ultimate decision to move the franchise from Oakland to Los Angeles.

The Berkeley Waterfront – a Litigation Marathon

In the lawn bowling, police, and Raiders cases, decisions were reached promptly in Superior Court and reviewed by the higher courts without extreme delay. These cases came to definitive conclusions as the city either won or lost on the merits. In contrast, the l970’s litigation package included one unique endurance contest over the future of Berkeley’s waterfront that never reached the ultimate issue in dispute.

Among the April l97l election campaign issues had been the proposed Waterfront Shopping Center proposed on Berkeley’s largest parcel of undeveloped land near the marina. This area was zoned “Unclassified”, which meant that no uses were permitted. An application was filed for re-zoning to accommodate the shopping center, but the project was extremely unpopular with environmentalists and many other segments of the community. The developers tried everything to win over Berkeley people, even adding a “meditation room” to the shopping center. But the re-zoning was decisively rejected by the Berkeley City Council on October l2, l97l. The land parcel would remain “Unclassified”.

The waterfront landowners, Santa Fe Land Improvement Company and George Murphy, brought an inverse condemnation suit against the city in l972, charging that failure to zone the property for development amounted to confiscation. Santa Fe and Murphy sought millions of dollars in damages.

Since the case was too specialized and time consuming for the City Attorney’s Office to handle, the Berkeley City Council interviewed prospective defense attorneys who would hopefully save the city treasury.

Councilman Bordon Price recommended Richard Archer of the San Francisco firm Sullivan, Jones, and Archer. Mr. Archer was a land use and inverse condemnation law veteran.

In order to provide a wide spectrum of legal talent from which to choose for such an important case, Loni Hancock suggested that Charles Garry be interviewed. One of the left’s most famous attorneys, Garry was best known for successfully defending Black Panther leader Huey Newton against murder charges. After hearing from both men, the Council decided that Archer’s establishment demeanor and conventional approach offered a greater chance of success than the more flamboyant arguments suggested by Charles Garry. For the next decade, Archer and his team of defense lawyers battled Santa Fe and collected a whopping fee.

Plaintiffs’ claims for inverse condemnation evolved into a legal/historical dispute over tidelands ownership rights. In a brilliant counterattack, Berkeley, (for once allied with Attorney General Younger representing the State of California), claimed that the l870 statute under which the waterfront land passed into private hands included reservation of a public trust, a continuing government property right. If the public trust doctrine were upheld, it meant that Santa Fe shared ownership with the government and Berkeley would win the case.

Thus, the inverse condemantion/zoning issues were set aside while the lawyers spent years arguing over the existence of a public trust. The California Supreme Court finally overruled its own prior decisions and proclaimed that the public trust doctrine applied to tidelands. However, since the disputed Berkeley property had been filled in and no longer constituted “tidelands”, the city’s public trust had been extinguished. City of Berkeley v. Superior Court of Alameda (l980) 26 Cal.3d. 5l5, l62 Cal.Rptr. 327. The United States Supreme Court declined to hear this case.

So Berkeley lost the public trust battle and dropped to 0-3 in the California Supreme Court. After buying out George Murphy, Santa Fe emerged with its ownership rights intact to the waterfront property.

However, nine years after rejection of the Waterfront Shopping Center, Santa Fe had achieved nothing with its inverse condemnation case. The defense held and the lawsuit would later be dismissed for plaintiffs’ failure to come to trial within the required time limits. But this triumph for the city failed to solve the essential land use questions. What was to be done with Santa Fe’s property? After lying politically dormant for an entire decade, the future of the waterfront lands left the courtroom and re-emerged as a dominant Berkeley City Council issue of the l980’s. (See page ___).

Victory for the Neighborhood Preservation Ordinance

Following its passage by the voters in April l973, the Neighborhood Preservation Ordinance (NPO) functioned for several years without legal challenge. Then in l978 a group of property owners and architects brought suit charging that the NPO’s new construction and demolition permit procedures (and the recently adopted Zoning Ordinance provisions which required a use permit for all new housing) were unconstitutionally vague and amounted to an unlawful delegation to the Board of Adjustments.

Alameda County Superior Court Judge Robert Kroninger agreed with plaintiffs and invalidated the major sections of the NPO applying to both housing construction and demolition. However, these permit procedures remained in effect while the city’s appeal was heard.

In a decisive victory for Berkeley and the initiative process, Judge Kroninger was reversed and the NPO completely upheld by the Court of Appeals as a proper exercise of the city’s broad zoning powers. All residential construction and demolition would continue to require public hearings and be subject to strict review by the Board of Adjustments and the City Council on appeal. Groch v. City of Berkeley(l98l) ll8 Cal.App.3d. 5l8, l73 Cal.Rptr. 534.

Future NPO disputes would concern whether portions of the initiative had been superceded by Council action.

The Bottle Ordinance Case – Winning Doesn’t Matter

In the environmental field, one of Loni Hancock’s major achievements had been Council passage in l975 of a pro-recycling ordinance requiring a 5 cent deposit on malt beverage and soft drink containers sold in the city. This “bottle bill” was intended to reduce litter by providing a financial incentive for large numbers of containers to be returned to stores instead of discarded. (See page l60).

While the Berkeley Consumers Co-op supported both state and local bottle bills, nearly all other supermarkets opposed such legislation as a costly nuisance. Local stores also feared their customers would buy beverages in Oakland and Albany to avoid the deposit. Berkeley retailers filed suit against the ordinance, charging that it deprived them of due process of law and equal protection of the laws.

Although the case dragged on for years, the bottle ordinance did very well in court. In Superior Court, Judge Kroninger upheld the law and the plaintiffs appealed. The Court of Appeals affirmed Judge Kroninger and rejected all the grocers’ arguments. After first reciting the Berkeley City Council’s stated belief that the ordinance would reduce litter, the Court concluded by eloquently declaring its reliance upon the principles of judicial restraint:

It is not our function nor within our province to sit as a super legislature passing upon the wisdom or lack thereof of legislative enactments. So long as the ordinance was within the power of the city council to enact and so long as the enactment does not offend constitutional rights, the ordinance is valid.

Park and Shop Markets, Inc. v. City of Berkeley (l98l) ll6 Cal.App. 3d. 78, l72 Cal.Rptr. 5l5.

(If other courts had taken the above approach, Berkeley’s legal batting average would have been much higher.)

The bottle ordinance was supposed to have gone into effect on September l, l976. The Council had appropriated $45,000 for consumer information and subsidized pick-up of the bottles. But after five and a half years of litigation, the law’s momentum had dissipated. Although the legal obstacles were gone, no new implementation date has been set for a variety of political and practical reasons. Environmentalists no longer believes such a program can be effective in a single city. As bottle bill advocates fought for their measures in many different states, including California, Berkeley’s pioneering local ordinance remained a dead letter.

The Continuing Saga of the Berkeley Election Reform Act

Having survived attempted repeal in the November l978 election (see pages 289 & 295), the Berkeley Election Reform Act rose to new heights of legal controversy.

Section 605 (The prohibition on corporate contributions to ballot measures and candidates)

When last visited, section 605 was in deep trouble. After losing in the PG&E case, its ballot measure applicability was questionable. Meanwhile City Attorney Michael Lawson’s invalidation of the entire section had been sustained by the Berkeley Fair Campaign Practices Commission. As a result, corporate and labor contributions were made to both City Council candidates and ballot measure campaigns from April l977 on.

The prohibition of corporate contributions to ballot measures fell victim to the United States Supreme Court’s ongoing efforts to destroy the remnants of campaign reform. In First National Bank of Boston v. Bellotti (l978) 435 U.S. 765, 98 S.Ct. l407, 55 L.Ed.2d 707, a Massachusetts law which prohibited corporations from making contributions or expenditures “for the purpose of … influencing or affecting the vote on any question submitted to the voters …” was held to be an unconstitutional restriction on the plaintiff’s First Amendment rights to free speech. The ballot measure portion of Section 605 was now conclusively and permanently dead.

It was still possible to resuscitate the Section 605 prohibition of corporate contributions to candidates. Section 605 supporters launched an offensive with the appointment of attorney Steve Mayer to the Berkeley Fair Campaign Practices Commission. Mayer, who worked with Jerry Falk at the Howard, Prim firm, had helped defend Proposition 9, the California Political Reform Act. His Berkeley mission was to reinstate Section 605 by getting the Commission to reverse itself and overrule former City Attorney Lawson’s legal opinion.

There had still been no court decision invalidating prohibitions on corporate contributions to candidates. It was simply a matter of Steve persuading the Commission’s members to admit that a mistake was made in l977.

Steve Mayer drafted a scholarly legal memo for the Commission explaining whey Section 605 should be reinstated. In response, the Berkeley Fair Campaign Practices Commission formally voted that Section 605’s prohibition on corporate/labor contributions to candidates would be back in effect for the April l98l election and all subsequent elections.

There has been no legal challenge to this decision. It took nearly four years, but the City of Berkeley was once again enforcing a key section of its own campaign reform law as passed by the voters.

Section 602 (The $250 limit on contributions to ballot measures).

The partial restoration of Section 605 healed one of the two major breaches in the Election Reform Act that emerged from the April l977 campaign. The other defeat had been the landlord suit in Alameda County Superior Court which resulted in Judge Sparrow’s summary judgment and permanent injunction declaring section 602’s $250 limit on contributions to ballot measures to be unconstitutional. However, this litigation was permanently tainted, since the City Attorney’s office was “defending” a law the City Attorney had himself branded as unconstitutional.

Nevertheless, the City of Berkeley appealed. The San Francisco City Attorney’s Office filed a brief in the Court of Appeals trying to protect its own ordinance limiting contributions to ballot measures. San Francisco urged that the fundamental Constitutional issue of whether such limitations violated the First Amendment not be decided in the Berkeley case because the trial record was so flimsy. San Francisco did not want its law jeopardized by Berkeley’s inability to present a thorough defense in l977. Keep in mind that San Francisco’s law had already been upheld in a Superior Court case thanks to a serious defense effort. (See page 238.)

Berkeley supporters of campaign reform such as Steve Mayer shared the fear that the leftover l977 case might set a dangerous precedent which would be used against the many local laws restricting contributions to ballot measures. But there was no easy way to stop the city’s appeal since Berkeley was arguing for the validity of Section 602. Pro-campaign reform tactical reasons for halting the city’s appeal were certain to be misunderstood.

There seemed to be no practical alternative to simply allowing the legal machinery to run its course.

In a series of three decisions over a two year period, the ultimate nightmare came true. First, the Court of Appeals declared Section 602 unconstitutional in reliance upon Buckley v. Valeo and First National Bank of Boston v. Bellotti. This ruling held that the First Amendment’s guaranty of free speech prevented a city from limiting contributions to ballot measure campaigns. Citizens Against Rent Control v. City of Berkeley (l979) l60 Cal.Rptr. 448.

Such an adverse appellate decision was expected, resulting in serious, but not necessarily fatal damage to similar laws in other California cities. But Berkeley petitioned the California Supreme Court for a hearing and, to everyone’s surprise, the Supreme Court accepted the case. The Berkeley dispute would now set the state-wide precedent on the subject of whether ballot measure contributions could be limited.

But a 4-3 margin, the California Supreme Court reversed the lower courts and upheld Section 602 of the Berkeley Election Reform Act. Justice Stanley Mosk’s decision elegantly defended the principles of campaign reform and explained why it was reasonable to limit ballot measure contributions:

There can be no doubt that government regulation designed to preserve the integrity of the initiative and referendum promotes a goal of the highest priority. As will appear, the Berkeley ordinance serves this compelling interest in a manner that does not frustrate another important aim of the electoral process: i. e., that all be given an opportunity to be heard so as to assure the widest dissemination of opinions on important public questions. …

We conclude that the Berkeley ordinance does not interfere with effective advocacy or dissemination of information by all sides to a ballot measure controversy, but instead is designed to preserve initiative and referendum elections for the salutary purpose for which they were created, and tends to prevent the corruption of the political process that otherwise results. …

We conclude that the Berkeley ordinance is necessary to the accomplishment of compelling governmental interests, and uses the least restricting means to achieve those ends. It violates neither the First Amendment nor Article I, section 2, of the California Constitution.

Justice Mosk’s ruling was supported by Chief Justice Rose Bird, plus Justice’s Tobriner and Newman. The dissenters were Justices Richardson, Clark, and Manuel. Berkeley had finally won a California Supreme Court case.  Citizens Against Rent Control v. City of Berkeley(l980) 27 Cal.3d. 8l9, l67 Cal.Rptr. 84.

The landlords appealed to the United States Supreme Court which accepted the case. Now we could smell catastrophe, since the high court was a committed enemy of campaign reform and took a special pleasure in overruling decisions of the much more liberal California Supreme Court. Reluctantly, Berkeley was about to set a national precedent.

The honor (burden) of arguing on behalf of Section 602 belonged to the new Berkeley City Attorney, Natalie West. West’s former employer was the California Fair Political Practices Commission. Steve Mayer of the Berkeley Fair Campaign Practices Commission had worked with West in the defense of Proposition 9 and he had encouraged her to seek the City Attorney position. West’s appointment by City Manager Wise Allen was confirmed by the City Council in the face of BDC opposition that she was too young and inexperienced. Now, as a veteran campaign reform supporter and advocate, Natalie West had the opportunity to defend Berkeley’s law in a forum where victory was probably impossible.

After nearly five years, this seemingly inevitable disaster climaxed in late l98l. The United States Supreme Court reversed the California Supreme Court, striking down Section 602 of the Berkeley Election Reform Act and all such limitations on ballot measure contributions throughout the country. What began as a set of conflicting Michael Lawson legal opinions in l977 ended up joining the Buckley v. Valeoline of Supreme Court cases obliterating nearly all elements of campaign reform.

Chief Justice Warren Burger’s decision held that any limitations on ballot measure contributions violated free speech rights:

Whatever may be the state interest or degree of that interest in regulating and limiting contributions to or expenditures of a candidate or a candidate’s committees there is no significant state or public interest in curtailing debate and discussion of a ballot measure.

Placing limits on contributions which in turn limit expenditures blatantly impairs freedom of expression. …

…The restraint imposed by the Berkeley ordinance on rights of association and in turn on individual and collective rights of expression plainly contravenes both the right of association and the speech guarantees of the First Amendment.

Only Justice Byron White dissented, expressing his practical reasons for supporting the constitutionality of limiting ballot measure contributions:

…Large contributions, mainly from corporate sources, have skyrocketed as the role of individuals has declined. Staggering disparities have developed between spending for and against various ballot measures. While it is not possible to prove that heavy spending “bought” a victory on any particular ballot proposition,l there is increasing evidence that large contributors are at least able to block the adoption of measures through the initiative process. Recognition that enormous contributions from a few institutional sources can overshadow the efforts of individuals may have discouraged participation in ballot measure campaigns and undermined public confidence in the referendum process. …

Perhaps, as I have said, neither the city of Berkeley nor the State of California can “prove” that elections have been or can be unfairly won by special interest groups spending large sums of money, but there is a widespread conviction in legislative halls, as well as among citizens, that the danger is real. I regret that the Court continues to disregard that hazard.

Most significant of all, in the contest of this case’s bizarre political history, were the opinions of Justices Marshall, Blackman, and O’Connor.

Marshall wrote that he would have supported Justice White’s dissent if he found that the record:

… disclosed sufficient evidence to justify the conclusion that large contributions to ballot measure committees undermined the “confidence of the citizenry in government,” … . Like Justices BLACKMUN and O’CONNOR, however, I find no such evidentiary support in this record.

I therefore concur in the judgment.

Thus, the Berkeley City Attorney’s Office’s inability to produce a Superior Court evidentiary record in l977 to justify Section 602 came back to haunt the city’s law and all similar campaign reform laws four years later. The San Francisco City Attorney’s Office had been correct in trying to legally smother this case.

The Billboard Battle

Unique among Berkeley’s tangled legal affairs was one fight spanning two decades that ended up being litigated by proxy. At issue was the City Council sign ordinance banning billboards that the liberal, pro-environmentalist Democratic Caucus majority passed in l967. The ordinance called for nearly all billboards to come down after a ten year grace period. The Council’s motivations were primarily esthetic. Berkeley would look more attractive minus billboards. But l977 brought a lawsuit from the billboard companies challenging the sign ordinance.

Meanwhile, San Diego’s similar law had been successfully challenged in Superior Court. By agreement, both the Berkeley litigation and the city’s billboards were left in limbo until a final decision had been rendered in the San Diego case. This San Diego lawsuit became one of the more intense legal struggles in California. Plaintiffs, the billboard owners, were fighting for the future of their industry.

The City of San Diego lost in the Court of Appeals, whose decision agreed with the trial court that the city lacked authority to ban billboards. Metromedia, Inc. v. City of San Diego (l977) l36 Cal.Rptr. 453. But the California Supreme Court took the case and reversed the lower courts, holding that San Diego’s ordinance was a valid exercise of local land use powers and did not, on its face, violate plaintiffs’ free speech rights. Metromedia, Inc. v. City of San Diego (l980) 26 Cal.3d 848, l64 Cal.Rptr. 5l0.

Then the United States Supreme Court stepped in, reversed the California Supreme Court, and ruled that the San Diego billboard ban was an unconstitutional violation of First Amendment free speech rights. The Supreme Court Justices produced a variety of confusing opinions distinguishing commercial and non-commercial billboards. San Diego’s ordinance was held to be an impermissible regulation of speech content because of its inconsistent prohibitions against non-commercial billboards.  Metromedia, Inc. v. City of San Diego (l98l) 453 U.S. 490, 69 L.Ed.2d 800, l0l S.Ct. 2882.

The California Supreme Court found that it could neither interpret nor re-write the San Diego law in any legal manner which would allow even portions of the measure to survive under the U.S. Supreme Court’s standards.  Metromedia, Inc. v. City of San Diego (l982) 33 Cal.3d. l80, l85 Cal.Rptr. 260.

San Diego’s total defeat left the Berkeley billboard ban still on the books but unenforced. It appears that no effort has been made to revive Berkeley’s anti-billboard law by arguing that it is different from San Diego’s or amending it to expressly try and get around the San Diego precedent. The sign ordinance’s fate resembles that of the bottle deposit ordinance, another vanguard environmental action. They are both dead letters.

A Preview of Coming Legal Attractions

Traffic Diverters

Diverter opponents gave up on the initiative process after their pair of losses, Measure O in June l976 and Measure E in April l977. Following established conservative tradition, they sought a court judgment to overturn the decisions of Berkeley’s voters. The new organizational name was Citizens for Legal Action Against the Barricades and the lead plaintiff was former Assemblyman Byron Rumford, Sr.

Starting in Superior Court, Berkeleyans for Fair Traffic Management intervened to help the city defend its traffic plan. Their attorneys included Jerry Falk, Guy Saperstein, and Dick Duane. The Berkeley Fire Fighters Association, represented by Caroll, Burdick & McDonough, intervened to assist in removing diverters so that firetrucks could once again take the shortest and quickest path to a fire. Plaintiffs’ lead attorney was Ira Deitrick.

The basic issues were (l) whether Berkeley’s authority to close streets and direct traffic was preempted by state law, and (2) under state law (the Vehicle Code), were the diverters official “traffic control devices” that met uniform legal standards and specifications.

Alameda County Superior Court Judge Robert Barber agreed with plaintiffs on both preemption and the diverters’ failure to qualify as “traffic control devices”. He ordered the diverters removed and the city appealed.

The Court of Appeals also found that the Legislature had preempted the field of street closures and traffic control devices. But then they reversed Judge Barber, concluding that “The diverters in this case are traffic control devices which conform to applicable uniformity requirements.” Berkeley’s traffic diverters had once again escaped extinction. Rumford v. City of Berkeley (l980) l67 Cal.Rptr. l96.

But the pro-diverter celebration was premature, since the California Supreme Court granted plaintiffs’ petition to hear the case. (See page ___.)

Rent Control

Two significant Berkeley rent control cases would now be going on simultaneously. First was the landlord challenge to the one year commercial rent limitations in Measure I. This litigation, Rue-Ell Enterprises, Inc. v. City of Berkeley, lasted four years longer than the initiative ordinance from which it sprang. The major issue was plaintiff’s assertion that Measure I amounted to the unconstitutional impairment of contracts.

Myron Moskovitz won Berkeley’s first major rent control decision as Judge Robert Bostick completely upheld Measure I of l978 in the Rue-Ell case. Ironically, it was this same Judge Bostick who voided the original Measure I, Berkeley’s l972 Rent Control Charter Amendment. Plaintiffs, represented by Miller, Starr & Regalia, appealed. (See .)

However, for the next several years, Berkeley’s legal main event would concern the new Rent Stabilization and Eviction Control Ordinance, Measure D, passed by the voters in June l980. Berkeley landlords, represented by the firm of Dobbs and Nielson, promptly filed suit against this law and the City Council again retained Myron Moskovitz to head the defense team. The case of Fisher v. the City of Berkeley was going to decide the judicial fate of rent control in the l980’s. (See ).

The Legal Box Score

The l970’s produced l4 published appellate court decisions on cases in which conservative interests sued to invalidate progressive measures passed by either the voters or the Council, or taken by the City Manager. After a slow start, Berkeley came close to breaking even numerically, winning 6, while losing 8.

The victories consisted of two Police Review Commission cases, the Neighborhood Preservation Ordinance, the Oakland Raiders tax, the Bottle Deposit Ordinance, and Santa Fe’s unsuccessful waterfront lands inverse condemnation suit. (The waterfront case is hard to score since Berkeley lost on the public trust doctrine, but ultimately prevailed since the Santa Fe suit was dismissed. I count that as a win.)

In the negative column were cases on rent control (Birkenfeld), affirmative action hiring, access to police records, Officer Crane’s dismissal, the lawn bowling greens, the Ocean View initiative, and two sections of the Election Reform Act. Once again the scoring is complicated since Birkenfeld was a long-term rent control victory and one important trial court loser, the l973 Berkeley Marijuana Initiative, failed to even make this list because the city was unable to present its appeal.

With final decisions on traffic diverters and the new rent control laws yet to be rendered, progressives hoped that the combination of Jerry Brown’s liberal judicial appointees, a cooperative City Attorney, and the added big name legal talents of Jerry Falk and Myron Moskovitz, would now propel the city into a lengthy courtroom winning streak.