Title
Authorize the City Attorney to Join as Amicus Curiae on Behalf of the City in Support of Lawsuits Concerning Topics for which the Council has Already Taken an Official Policy Position. (City Attorney)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
The City has recently received a handful of requests to join as amicus curiae. The City Attorney’s Office is requesting that the Council give general authorization to the City Attorney to join such efforts if doing so advances an official position the City Council has taken in the past.
BACKGROUND
Recently, the City Attorney’s Office received a request to join as amicus curiae (“friend of the court”) in Homeaway, Inc. and AirBnB, Inc. v. City of Santa Monica. The City Attorney’s Office understands that a similar request may be forthcoming in Rosenblatt v. City of Santa Monica, et al.
DISCUSSION
Often the City Attorney’s Office is asked to consider the City’s interest in joining briefs as amicus curiae (“friends of the court”) submitted in support of cities for which the City of Alameda is not a party. These requests often come from other cities and local agencies who are named parties in lawsuits implicating local interests.
The rules of appellate procedure allow for amicus curiae to submit briefs in support (or against) the position of a named party. However, the confluence of the deadlines for joining as an amicus curiae and the City’s obligations under the Brown Act/Sunshine Ordinance for seeking Council authorization often make those deadlines difficult to meet.
Given the time constraints to sign on as an amicus curiae, the City Attorney’s Office is requesting general authority for the City Attorney sign on as an amicus curiae, but only where it is consistent with advancing an official position as declared by the City Council. For example, the City has taken an official position by having adopted a resolution concerning Sanctuary Cities. Similarly, the City Council has periodically adopted a legislative agenda outlining the City’s legislative goals and positions, allowing the City to quickly oppose or support legislation consistent with that legislative agenda.
Homeaway, Inc. and AirBnB, Inc. v. City of Santa Monica
Recently, the City of Santa Monica reached out to the City Attorney’s Office to join an amicus brief in Homeaway, Inc., AirBnB, Inc. v. City of Santa Monica. In May 2015, the City of Santa Monica adopted an ordinance regulating short term rentals. AirBnB, Inc. and Homeaway (the “Platforms”) each filed a complaint challenging the ordinance under the Communications Decency Act (“CDA”) and the First Amendment. In relevant part, the Platforms had argued that the CDA immunizes them, as third party online platforms, from liability and proscribes the treatment of them as “publishers” of content created by owners seeking to list their homes as short-term rentals. The District Court ruled in favor of the City of Santa Monica, finding no preemption under the CDA and no expressive conduct. The Platforms appealed. The Ninth Circuit panel (Judges Schroeder, Nguyen, and Simon) affirmed in part, and dismissed the balance of the Platforms’ claims. The Platforms have petitioned for rehearing pursuant to FRAP 40 (Petition for Panel Rehearing). If granted, the matter would be reheard by an en banc panel composed of the Chief Judge and ten (10) other judges selected at random.
The crux of the litigation with the Platforms is whether cities can require these online short-term rental platforms to refuse bookings for unlicensed or unregistered units. If a court rules that the CDA preempts cities from regulating short-term rentals, then the ability to regulate in this space locally could be greatly compromised. Thus, how the Homeaway case is resolved could potentially have far-reaching implications for the Council’s ability to regulate these businesses.
This lawsuit provides an example for providing the general authorization to join as an amicus curiae based on official City Council positions declared in the Annual Legislative Agenda or other resolutions. Specifically, this lawsuit implicates important local interests and is consistent with the Council’s declared policy position in the 2019 Legislative Agenda, stating that the general principal is for the City to “…oppose any legislation or regulations that preempt local authority…” Without this general authorization, the City would not be able to sign on as an amicus curiae because the deadline to do so is before the next City Council meeting. Indeed, in such cases in the future, the City may well wish to join as a signatory to all amicus briefing on this matter because it implicates several important local concerns, including local control over land use decisions (combat conversion of residential dwelling units into “de facto hotels”), protection of affordable housing stock, and preservation of neighborhood livability (noise, garbage, etc.).
Accordingly, the City Attorney’s Office is requesting that the Council give general authorization to the City Attorney to join such efforts if doing so would advance an official position the City Council has taken in the past.
ALTERNATIVES
The Council may want to consider limitations to the exercise of this authority to join as an amicus curiae.
If the Council declines to grant such authorization, the Council may require staff to come to the Council each time a request for amicus support is submitted. However, this alternative is not recommended for the reasons set forth above.
FINANCIAL IMPACT
This item has no foreseeable financial impact.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
No known Municipal Code/Policy Cross References are implicated.
ENVIRONMENTAL REVIEW
Adoption of the proposed action is exempt from review under the California Environmental Quality Act (CEQA) pursuant to the following, each a separate and independent basis: CEQA Guidelines, section 15378 (not a project) and Section 15061 (b) (3) (no significant environmental impact).
CLIMATE IMPACTS
No known Climate Impacts are anticipated for the proposed action.
RECOMMENDATION
Authorize the City Attorney to join as amicus curiae on behalf of the City in support of lawsuits concerning topics implicating local interests or for which the Council has already taken an official policy position.
CITY MANAGER RECOMMENDATION
The City Manager concurs with the City Attorney recommendation.
Respectfully submitted,
Yibin Shen, City Attorney
By,
John D. Lê, Assistant City Attorney
Exhibit:
1. Selected Briefs
cc: Eric Levitt, City Manager