KENDRA O‘CONNELL, Plaintiff and Appellant, v. CITY OF STOCKTON et al., Defendants and Respondents.
No. S135160
Supreme Court of California
July 26, 2007
Respondents’ petition for a rehearing was denied October 10, 2007.
41 Cal. 4th 1061
Mark T. Clausen for Plaintiff and Appellant.
O‘Melveny & Myers, Meredith N. Landy, Dale M. Edmondson, Joshua D. Baker and Michel Amaral, for American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego & Imperial Counties and California Attorneys for Criminal Justice as Amici Curiae on behalf of Plaintiff and Appellant.
Meyers, Nave, Riback, Silver & Wilson, Joseph M. Quinn; Richard E. Nosky, Jr., City Attorney, and Lori S. Whittaker, Deputy City Attorney, for Defendants and Respondents.
Rockard J. Delgadillo, City Attorney (Los Angeles) and Claudia McGee Henry, Assistant City Attorney, for The League of California Cities as Amicus Curiae on behalf of Defendants and Respondents.
KENNARD, J.—Our state Constitution allows cities and counties to enact and enforce local ordinances so long as they are “not in conflict” with the state‘s “general laws.” (
At issue here is a city ordinance allowing forfeiture to the city of any vehicle used to commit certain acts made criminal by state law. The Court of Appeal held that state law preempts the city ordinance. We agree.
I.
Plaintiff Kendra O‘Connell filed this taxpayer action (
On plaintiff‘s appeal, the Court of Appeal reversed. It held that the forfeiture ordinance violated procedural due process because it failed to provide for a reasonably prompt postseizure probable cause hearing on the City‘s right to hold a vehicle pending its forfeiture. The Court of Appeal also held that the forfeiture ordinance was preempted by specific state law provisions governing vehicle forfeiture. This conclusion conflicted with Horton v. City of Oakland (2000) 82 Cal.App.4th 580 [98 Cal.Rptr.2d 371], in which a different Court of Appeal held that a vehicle forfeiture ordinance enacted by the City of Oakland, and similar to the one at issue here, was not preempted by state law. We granted review to resolve the conflict.1
II.
Part XXV of chapter 5 of the Stockton Municipal Code is entitled “Seizure And Forfeiture Of Nuisance Vehicles.” The term “forfeiture,” as used here, means that the government assumes title to property used to further some illegal purpose. (See United States v. Bajakajian (1998) 524 U.S. 321 [141 L.Ed.2d 314, 118 S.Ct. 2028]; Bennis v. Michigan (1996) 516 U.S. 442 [134 L.Ed.2d 68, 116 S.Ct. 994]; Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663, 682 [40 L.Ed.2d 452, 94 S.Ct. 2080].)
The ordinance at issue provides for the forfeiture of “[a]ny vehicle used to solicit an act of prostitution, or to acquire or attempt to acquire any controlled substance,” with “[a]ll right, title, and interest” thereafter vesting in the City. (Stockton Mun. Code, §§ 5-1000, 5-1002, italics added.) A vehicle so used may be seized by a peace officer (1) with a court order; (2) incident to an arrest or a search conducted with a search warrant; or (3) with probable cause to believe the vehicle was used in the specified
A trial of the vehicle forfeiture can be before either a court or a jury. The City has “the burden of proving by a preponderance of the evidence” that the vehicle was used for one of the prohibited purposes set out in the ordinance. (Stockton Mun. Code, § 5-1006, subd. (f).) Forfeited vehicles are to be sold; the proceeds are used first to pay any “bona fide or innocent purchaser, conditional sales vendor, mortgagee or lien holder” of the vehicle, when such payment is ordered by the prosecuting agency. (Id., § 5-1008, subd. (a).) After paying the costs of publishing the notice of the forfeiture action and of storing, repairing and selling the vehicle (id., § 5-1008, subd. (b)), remaining funds are distributed in proportionate shares to the involved prosecuting and law enforcement agencies. (Id., § 5-1008, subd. (c).)
We now turn to the principles governing state law preemption of local ordinances.
III.
We have in the past articulated the following principles on state law preemption of local ordinances. “Under
A local ordinance duplicates state law when it is “coextensive” with state law. (Sherwin-Williams, supra, 4 Cal.4th at pp. 897-898, citing In re Portnoy (1942) 21 Cal.2d 237, 240 [131 P.2d 1] [as “finding ‘duplication’ where local legislation purported to impose the same criminal prohibition that general law imposed“].)
A local ordinance enters a field fully occupied by state law in either of two situations—when the Legislature “expressly manifest[s]” its intent to occupy the legal area or when the Legislature “impliedly” occupies the field. (Sherwin-Williams, supra, 4 Cal.4th at p. 898; see also 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 986, p. 551 [“[W]here the Legislature has manifested an intention, expressly or by implication, wholly to occupy the field ... municipal power [to regulate in that area] is lost.“].)
When the Legislature has not expressly stated its intent to occupy an area of law, we look to whether it has impliedly done so. This occurs in three situations: when “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the” locality.” (Sherwin-Williams, supra, 4 Cal.4th at p. 898.)
With respect to the implied occupation of an area of law by the Legislature‘s full and complete coverage of it, this court recently had this to say: “‘Where the Legislature has adopted statutes governing a particular subject matter, its intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.‘” (American Financial, supra, 34 Cal.4th at p. 1252, quoting Tolman v. Underhill (1952) 39 Cal.2d 708, 712 [249 P.2d 280].) We went on to say: “‘State regulation of a subject may be so complete and detailed as to indicate an intent to preclude local regulation.‘” (American Financial, supra, at p. 1252.) We thereafter observed: “‘Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.‘” (Id. at p. 1253, quoting In re Lane (1962) 58 Cal.2d 99, 102 [22 Cal.Rptr. 857, 372 P.2d 897].) When a local ordinance is identical to a state statute, it is clear that “‘the field sought to be covered by the ordinance has already been occupied‘” by state law. (American Financial, supra, at p. 1253.)
With these principles in mind, we consider below whether state law preempts the City‘s vehicle forfeiture ordinance.
IV.
As we noted earlier, the City‘s ordinance permits the forfeiture of any vehicle used to “to solicit an act of prostitution, or to acquire or attempt to acquire any controlled substance.” (Stockton Mun. Code, § 5-1000, italics added.) We turn first to the latter aspect. The Court of Appeal concluded that this part of the ordinance was preempted by certain provisions of the California Uniform Controlled Substances Act (UCSA) (
As defined in the UCSA, controlled substances include every “drug, substance, or immediate precursor” (
In addition, the UCSA sets forth the penalties for criminal violations of its provisions. For example, unlawful possession of “not more than 28.5 grams of marijuana” is a misdemeanor offense carrying a maximum fine of $100 and no jail time. (
In
Subdivision (e) of
Recognizing that forfeiture can sometimes lead to harsh results, the Legislature included this cautionary language in subdivision (j) of
We summarize: State law, through the UCSA (
The comprehensive nature of the UCSA in defining drug crimes and specifying penalties (including forfeiture) is so thorough and detailed as to manifest the Legislature‘s intent to preclude local regulation. The UCSA accordingly occupies the field of penalizing crimes involving controlled substances, thus impliedly preempting the City‘s forfeiture ordinance to the extent it calls for the forfeiture of vehicles used “to acquire or attempt to acquire” (Stockton Mun. Code, § 5-1000) controlled substances regulated under the UCSA. (See American Financial, supra, 34 Cal.4th at p. 1252; Tolman v. Underhill, supra, 39 Cal.2d at p. 712.)
Here too the Legislature‘s comprehensive enactment of penalties for crimes involving controlled substances, but exclusion from that scheme of any provision for vehicle forfeiture for simple possessory drug offenses, manifests a clear intent to reserve that severe penalty for very serious drug crimes involving the manufacture, sale, or possession for sale of specified amounts of certain controlled substances.
We now consider the Court of Appeal‘s decision in Horton v. City of Oakland, supra, 82 Cal.App.4th 580, which involved an ordinance similar to the one at issue here, but which reached a conclusion contrary to that of the Court of Appeal in this case. Horton held that the UCSA‘s forfeiture provisions did not preempt Oakland‘s ordinance allowing forfeiture of vehicles used to acquire or attempt to acquire controlled substances. It reasoned that the ordinance covered an area of law “untouched by statewide legislation” because the UCSA‘s forfeiture provisions, which apply only to persons possessing for sale or selling illicit drugs, were ”silent with regard to vehicles used by drug buyers.” (Horton v. City of Oakland, supra, 82 Cal.App.4th at p. 586, italics added.) In focusing solely on the UCSA‘s forfeiture provisions, Horton failed to consider the UCSA‘s comprehensive scheme of drug crime penalties, which include forfeiture of various items of property, including vehicles, when used in specified serious drug offenses. Thus, Horton never addressed whether the UCSA as a whole constitutes a comprehensive scheme that fully occupies the field of penalizing crimes involving controlled substances. Because of our conclusion in this case that the UCSA‘s comprehensive regulation of drug offenses as a whole impliedly preempts the City‘s ordinance allowing forfeiture of vehicles used in acquiring controlled substances, we need not resolve whether the UCSA‘s forfeiture provisions alone
We now turn to the other aspect of the City‘s forfeiture ordinance, allowing for the forfeiture of any vehicle used to solicit prostitution. The Court of Appeal below held that the Legislature had expressly preempted that field through the interplay of two Vehicle Code provisions:
The matter that is covered by the Vehicle Code and that is pertinent here is the authority of local government entities to declare a vehicle used in soliciting prostitution to be a public nuisance. That topic is addressed in the Vehicle Code by subdivision (a) of section 22659.5. That provision allows a city or a county to “adopt an ordinance establishing a five-year pilot program that implements procedures for declaring any motor vehicle a public nuisance” when used in the commission of specified criminal conduct, including acts covered in
Subdivision (b) of
We summarize:
In addressing a similar ordinance adopted by the City of Oakland, the Court of Appeal in Horton v. City of Oakland, supra, 82 Cal.App.4th 580, reached a contrary conclusion. First, asking whether
We also reject the City‘s characterization of
We now turn to the City‘s arguments made in overall support of its vehicle forfeiture ordinance. According to the City, the ordinance does not conflict with any state law, and therefore a necessary precondition to state preemption is lacking. We disagree. As discussed earlier, the ordinance conflicts with state law because anyone using a vehicle “to solicit an act of prostitution, or to acquire or attempt to acquire any controlled substance” (Stockton Mun. Code, § 5-1000)—conduct exclusively within the purview of state law—is subject to penalties in excess of those prescribed by the Legislature.
The City also argues that because it operates under a charter rather than under the general laws governing California cities and therefore meets the
The illicit commercial activities—prostitution and trafficking in controlled substances—that are the focus of the City‘s vehicle forfeiture ordinance are matters of statewide concern that our Legislature has comprehensively addressed through various provisions of this state‘s Penal and Vehicle Codes, leaving no room for further regulation at the local level. One of the lesser harms associated with these crimes is the traffic congestion that may result when vehicles are used to solicit acts of prostitution or to buy or sell drugs illegally on city streets. Although traffic congestion is a local problem that cities ordinarily are authorized to address, they may not do so by means of an ordinance that, by allowing forfeiture of a vehicle used to commit a specific state law violation, impinges on an area fully occupied or exclusively covered by state law.4
DISPOSITION
The judgment of the Court of Appeal is affirmed.
George, C. J., Werdegar, J., and Moreno, J., concurred.
CORRIGAN, J., Dissenting.—I respectfully dissent from the opinion of my colleagues.
The ordinance at issue is a practical and responsible attempt by the City of Stockton (Stockton) to address problems it, and many other cities face on a daily basis. The ordinance speaks to a narrow, pressing and quite real local concern. Street commerce in drugs and sex forces innocent people to share their neighborhoods with pimps, prostitutes, and drug dealers who use their streets as a bazaar for illegal transactions.
In deciding whether a local ordinance enacted by a charter city, like Stockton, is valid, we apply the following analysis: “‘First, a court must determine whether there is a genuine conflict between a state statute and a municipal ordinance. [Citations.] Only after concluding there is an actual conflict should a court proceed with the second question; i.e., does the local legislation impact a municipal or statewide concern?’ [Citation.] Courts should avoid making unnecessary choices between competing claims of municipal and state governments ‘by carefully insuring that the purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and the other.’ [Citation.] In other words, the preemption question begins with an inquiry into the existence of a conflict. If there is no conflict, the home rule doctrine is not brought into play.” (Horton, supra, 82 Cal.App.4th at p. 585.)
The majority relies on the California Uniform Controlled Substances Act (UCSA) (
Unlike the majority, I cannot conclude that the overall structure of the UCSA “manifests a clear intent” to limit the penalty of vehicle forfeiture to “very serious drug crimes involving the manufacture, sale, or possession for sale of” drugs. (Maj. opn., ante, at p. 1072.) The Legislature has authorized a state prison sentence of up to three years for the simple possession of even a small amount of certain drugs. (
In fact, “the [UCSA] is silent with regard to vehicles used by drug buyers.” (Horton, supra, 82 Cal.App.4th at p. 586, fn. omitted.) Stockton has included these vehicles in its nuisance abatement program in an attempt to alleviate the concerns of its residents. Thus, rather than creating a conflict, Stockton‘s ordinance covers an area undisturbed by the UCSA.
Also, Stockton‘s ordinance does not conflict with provisions of the Vehicle Code. The majority relies on
I disagree. The provisions of
This court has counseled that we should carefully ensure “that the purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and the other.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 17 [283 Cal.Rptr. 569, 812 P.2d 916].) Contrary to the majority, I would hold that there is no conflict between state law and Stockton‘s ordinance.
In addition, assuming there is a conflict with state law, because Stockton is a charter city, it argues that its ordinance addresses a municipal affair: nuisance abatement. Stockton urges that the ordinance‘s forfeiture provisions are necessary to reduce the urban blight and traffic caused by prostitution and drug dealing. The majority summarily rejects this argument holding that although traffic congestion is a harm associated with these crimes, illicit commercial activities such as prostitution and drug trafficking are matters of statewide concern. (Maj. opn., ante, at p. 1076.)
The majority quotes our opinion in Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th 1139, for the rule that when a local government regulates in an area in which it traditionally exercised control, courts will presume that the regulation is not preempted by state statute, absent the Legislature‘s clear intention to preempt. (Id. at p. 1149; see maj. opn., ante, at p. 1069.) The majority fails to follow this rule. It cannot be said that when the Legislature enacted the UCSA and Vehicle Code, it intended to invalidate local nuisance ordinances targeting the urban blight created by drug trafficking and prostitution.
The majority also relies on American Financial Services Assn. v. City of Oakland (2005) 34 Cal.4th 1239 [23 Cal.Rptr.3d 453, 104 P.3d 813] (American Financial), where we concluded that a statutory scheme that regulated predatory lending practices preempted an Oakland ordinance that purported to regulate predatory lending practices in the Oakland home mortgage market. In that case, we found it significant that “the Legislature was not suddenly entering an area previously governed by municipalities,” but instead was addressing a subject matter that historically has been regulated “at the state, not the municipal, level.” (Id. at p. 1255.)
The majority does not address the compelling problem of urban blight for the poor and elderly, which is immediate, significant, and certainly a local concern. The aged homeowner who must shut herself inside while drug transactions are conducted in her front yard, and the parents who must walk their children to school while commercial sex acts are performed in cars parked at the curb pay a heavy and very local price. Not all Californians confront these problems, but those who do have a pressing and localized need for protection.
It should not be the case that local governments require the permission of the state to protect their own citizens from nuisances that profoundly affect their quality of life and the quiet enjoyment of their own property.
Baxter, J., and Chin, J., concurred.
Respondents’ petition for a rehearing was denied October 10, 2007. Baxter, J., Chin, J., and Corrigan, J., were of the opinion that the petition should be granted.