Wednesday, February 14, 2018

The "Educators" Ordinance Is Back

Today the court of appeals reversed in full its 2016 judgment, which up until today was holding the "educators" ordinance on hold. There is a hope that the certiorari review will follow, but, as of now, the ugly and self-contradicting piece is coming back on the books. And I mean it literally as well, I'll have to update the book again (only in this case, downgrade it back).

None of the ordinance's loopholes and inconsistencies were addressed in the decision. Its inexplicable treatment of just one class of potential tenants (the educators) is tangibly mentioned in footnote 4 (why is it always footnote 4?  I've stumbled over that coincidence before), that the City have conceded that the ordinance would be "subject to a constitutional challenge," if an ordinance would treat differently another group (restaurant workers were mentioned as an example).  How is it different with educators? Two years ago I was contemplating on what target classes were of similar public importance (the example of restaurant workers may not be as universally accepted on the same level of importance as kids' education, i.e. some people opt not to eat out, while almost all kids go to school). But there are groups similarly within the same public policy as the educators:

The targeted group for protection is under-inclusive, it inexplicably excludes other worthy professional groups: policemen, firemen, paramedics, street cleaners, bus drivers, other city workers of all sorts, community spiritual leaders, etc. For any of these groups an absolutely same appeal can be made, identical to the one touted for this proposed law (i.e., a world-class city should have world-class educators). Doesn't a world-class city need world-class roads, clean streets, world-class community services? It needs them just as much. Imagine any group being ousted out, and we are in big trouble.

No. Instead of addressing the real issues with the ordinance, the appellate decision went its entire length on contemplating, whether the ordinance is substantive or procedural, without forgetting to mention that the line between those two labels is hard to draw and is in fact very illusory. Even if the appellants got entangled in the labels (unlikely, since the court itself admits there is not much difference) the reviewing court could have remembered to use one of the main principles available to it: "[t]here is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion." Belair v. Riverside Cty. Flood Control Dist. (1988) 47 Cal.3d 550, 568; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.

As if there were no worthy points to discuss about this ordinance (I had raised some issues here and here, and I am sure I haven't spotted them all). But nope, these apparent problems (I mean, apparent even to me), were not noticed, unless you count a nod to a potential constitutional challenge as being mentioned (and that only as a footnote comment, and only if the target class were restaurant workers, and it made no reflection on the decision anyway).

So there you have it.  Talking about the procedure, my initial fear was that the unfreezing this set of rules from 2016 would run into a conflict with the present Ordinance, it being amended since, especially for the new rules for OMI and RMI, but on the surface I don't see an immediate issue. Perhaps some cross-references within the statutes may suffer, since the indexation moved (e.g., under 37.9(a)(8), 37.9(i), 37.9(j), etc., but let's hope for the best.)

Wait for the new updated version of the ordinance to come out here. As of the time of writing this post, the version on the Board's website was still one from 8-27-2017, but I expect it to catch up in a couple of weeks with this new decision, and then we will see if any of the sub-sections bumped into each other. And you know what side-effect it bears with it, don't you? It means you can't reliably use the current version until the new one is out, in any of eviction notices under the rent control, no matter what the ground. You've been warned!

[Updates: Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release here].

More real property posts

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