David Hicks, SBN 053750 PO Box 562 Dunsmuir, CA 96025 (530) 235-0235; fax (530) 239-4301

E-mail : dhcases@aol.com Attorney for Petitioners

Superior Court of California (Unlimited Jurisdiction) Superior Court, Siskiyou County Peter Arth, Jr., individually and on behalf of all others similarly situated, Plaintiff, v. ] ] ] ] ] Chris Raine, Arliss Steele, Diane Dolf, ] individually and as members of the City ] Council of the City of Dunsmuir, City of ] Dunsmuir, a General Law City of the State ] of California, “Dolf, Mitchell, Raine, ] Steele, Wofford For City Council 2010”, ] an unincorporated association, Citizens for ] a Better Dunsmuir, and Does 1 through 25, ] Defendants. ] ] ] _________________________________ ] No. ______________ VERIFIED PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION; FOR OTHER APPROPRIATE RELIEF FROM THE UNLAWFUL DETERMINATION OF THE CITY OF DUNSMUIR CITY COUNCIL ON JANUARY 18, 2011 RE PENDING LITIGATION SETTLEMENT; FOR DECLARATORY AND INJUNCTIVE RELIEF AND A BILL OF PEACE; DECLARATIONS OF DAVID HICKS AND PETER ARTH, JR. WITH EXHIBITS ATTACHED; MEMORANDUM OF POINTS & AUTHORITIES. Hon. ____________ Hearing Date: ____________, 2011 Time: ______________ Dept. ___________

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PARTIES
1.

Petitioner Peter Arth, Jr., is a resident of Dunsmuir, California, and an active

member of the California Bar, who was elected to the Dunsmuir City Council in November of 2008, and served until December 2, 2010. He brings this representative action on behalf of himself individually, and in his representative capacity on behalf of others similarly situated and lacking an adequate remedy at law as to the matters prayed herein.
2. 3.

He is a taxpayer and rate payer in Dunsmuir. Before filing this Petition, he made efforts to compel voluntary compliance with
1

the Political Reform Act of the new Council members. During his service as Mayor of Dunsmuir, he brought about the adoption of Dunsmuir’s new Conflict of Interest Code, responded to the Siskiyou County Grand Jury report of conflict of interest violations by the City in 2007, and supported the replacement of the City’s former Finance Director, who is currently the subject of proceedings before the State Fair Political Practices Commission. He also was instrumental in responding to State demands regarding repeated and repeating failures of the City to follow federal and state water quality requirements, thereby endangering the waters of the upper Sacramento River due to deterioration of the City’s water and sewer system. During his time in office, the City committed to a Seven Million Dollar system repair and upgrade project that satisfied all regulatory agencies and served to substantially improve the City’s bond rating.
4.

Respondent City of Dunsmuir (“CITY”) is a political subdivision of the State of

California, County of Siskiyou, and located within this judicial district. The City

1 See Group Exhibit 1 attached to his accompanying Declaration.

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Council of CITY consists of Nick Mitchell, as Mayor, Chris Raine, Vice-Mayor, and members Ed Steele, Arliss Steele (no relation), and Diane Dolf.
5.

Real Parties in Interest are voters, residents, rate-payers and taxpayers of CITY Some of the Respondents previously instituted a related action entitled Citizens

and rate-payers outside CITY subject to City fees for water and sewer system usage.
6.

For A Better Dunsmuir, an unincorporated association, and Nick Mitchell (hereafter collectively referred to as “CBD”) v. The City of Dunsmuir, The City Council of the City of Dunsmuir and Does 1-100, inclusive, #SCCVPT 10-1148 in this Court in which they sought mandamus, declaratory and injunctive relief, based on allegations that CITY failed to follow the protest process in Proposition 218 as part of increasing water and sewer rates. CBD and respondents Raine, Dolf and Arliss Steele opposed any rate increases. That case sought to block the water/sewer project and attendant rate increases.
7.

CBD and Respondents did not dismiss the case when they took office on

December 2, 2010, and refused to disqualify themselves for conflict of interest in order to vote on how to settle their own lawsuit against themselves, eventually voting, despite legal advice by the City Attorney explaining how to deal with the conflict of interest problem, to dismiss the case on terms favorable to themselves as members of CBD and against the financial interests of the Petitioner, the public and CITY, contrary to CITY’s established policy to not waive costs and fees in litigation matters. CHRONOLOGY OF KEY EVENTS
8.

The November 4, 2010, Dunsmuir City Election results showed that Ed Steele had

won the most votes and he was retained on the City Council, while slate candidates Nick Mitchell and Respondents Chris Raine, Arliss Steele and Diane Dolf were

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elected to fill out the balance of the Council, campaigning mainly against the City’s commitment to undertake major repairs to its water and sewer utilities.
9.

On January 4, 2011, CBD held a meeting at which City business, including the

CBD lawsuit was discussed. Present and participating in that private organization’s meeting were Mayor Mitchell, and Council Members Diane Dolf and Arliss Steele, in glaring violation of the Brown Open Meeting Act. A copy of the Meeting Agenda is attached to the accompanying declaration of Petitioner as Exhibit 13-L, and incorporated herein by reference.
10.

On January 13, 2011, at a regularly scheduled City Council meeting attended,

inter alia, by City Attorney John Kenney, the full Council and a standing room only audience addressed the CBD litigation. On information and belief, Council Member Ed Steele had been being refused permission to place anything on the Agenda.
11.

At that meeting, the CBD lawsuit was on the agenda. Mayor Mitchell recused

himself on that item without mentioning any basis for conflict, referring to “a perceived conflict.” . The City Attorney explained on the record that where Council members had a conflict of interest, they should recuse themselves. On information and belief, all four slate candidates should have recused themselves, because they were members of CBD, were its slate candidates, were plaintiffs in the lawsuit and voting as defendants (or on behalf of CITY defendant), and were purporting to resolve the matter on terms that were favorable to themselves in their individual capacities as CBD leader/members. Instead, Vice-Mayor Raine took over the gavel and refused to allow former Mayor Arth, Petitioner herein, to speak at the public comment time, threatened to and did shut down the meeting and ordered the room cleared. City Attorney Kenny conferred with Mr. Raine in the City Hall chambers, and after about 20 minutes the meeting was called back to order. Mr. Raine recused himself, and left the Council chamber. Petitioner was allowed to speak briefly, during
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“public comment” before the Agenda items were taken up, but was not allowed to finish and sat down. Then a vote was taken on the CBD lawsuit. Ed Steele voted no; Dolf and Arliss Steele voted yes on the settlement of the lawsuit their organization had brought against the City, and seemed to think they had prevailed on the 2-1 vote; however, Mr. Kenny then explained that the measure did not carry, but had failed for want of three votes.
12.

It is not presently known by the public to what extent this was discussed privately

by Council members, but a Council meeting was scheduled four business days later, for January 18, 2011 solely for the purpose of taking up the defeated measure. Again, despite the 3:00 p.m. (not the usual evening) scheduling, a packed house appeared and a second vote was taken by Vice Mayor Raine, changing the result to a 3-1 vote adopting the settlement—this despite protests from the audience about Raine’s unrecusal and lack of notice to the public, as well as unaddressed conflicts of interest. Raine did not let Council Member Ed Steele to speak as an elected representative on the Council, and he was forced to endure in silence during and afterward the dais delivered denouncing demagogic diatribes read against him by other Council members in open session, interfering with his and the public’s right to have him engage in the public deliberations required by law, after having attempted to propose a solution to the conflict situation.
13.

Thereafter Petitioner sought to persuade the Council by letter that their actions

were violative of the Fair Political Practices Act and the Brown Act and demanding that they correct these actions or face legal action (by way of a petition to intervene). Instead, the CBD lawsuit was quickly and quietly dismissed by plaintiff’s counsel therein.

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14.

A DVD of both of the above Council meetings will have been lodged with the

Court shortly after the filing of this Petition. The two tapes can be viewed by the public on SiskiyouTV.com. WHY THE RELIEF SOUGHT IS ESSENTIAL
15.

Petitioner repeatedly appealed to Council members to have these illegal actions

repaired, but to no avail. Therefore, Petitioner has no plain, speedy and adequate remedy in the ordinary course of law.
16.

As more fully detailed in Petitioner’s declaration filed herewith, the negative

consequences of Respondent’s unresolved lawsuit grow with each day, placing at peril project financing and agreements negotiated with various water quality regulators.
17.

It was never disclosed to the public what the actual terms of the settlement were,

but worse, the public is completely unaware at this point what the true costs to the City were, both as to expenditures paid in defense, and in expenses that could have been recovered but were abandoned.
18.

Petitioner and Real Parties were not able to obtain at the January 18th Council restoration of the vote taken on January 13, 2011, on the litigation; Council members compliance with recusal rules required by the Political Reform Act of 1974;
c.

meeting any of the following:
a. b.

Full and actual disclosure and declaration of Council members’ conflicts of interest; Statements of reasons for either of the recusals that were made; Any information about what if anything had changed between Vice-Mayor Raine’s recusal on January 13 and January 18, 2011, as to his recusal; and
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d. e.

f. g.

Any rationale for the “unrecusal” by Vice-Mayor Raine; Any acknowledgement by the three slate members, Raine, Dolf and Arliss Steele of their obligations under both the Brown Act and the Fair Political Practices Act; and A Council meeting environment free of harassment and intimidation by “slate” Council members acting in concert.

h.

19.

The views of Petitioner and Real Parties coincide in large part with the procedural

approach suggested by Council member Ed Steele to resolve the lawsuit, an approach that supports the rights of Petitioner and Real Parties to have free and open, public debate, deliberation. Voting was interfered with, rights of the public to deliberate and compromise on disparate views pretermitted and procedures of the Respondents’ unconstitutionally violated—and an approach that does not slam the door of open government in the face of those whose views vary from those of the CBD Council members.
20.

On information and belief, all four Council members named as defendants herein deciding on behalf of the CITY (as Council members) how to resolve the CBD litigation they filed against CITY (individually)—essentially having sued themselves and then settling the case on terms in their individual favor and against the right of CITY to recover its costs; and
b.

have a conflict of interest with reference to:
a.

decisions they made as a Council majority at meetings of CBD pertaining to the litigation and the underlying issue of the major water and sewer repairs and rates they strongly opposed before their election.

21.

Council members Mitchell and Raine operate three prominent businesses in

Dunsmuir, and directly affected by the water and sewer rate increases adopted by the prior Council and have personal interests therein that constitute a conflict of interest
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in their participation in voting on the settlement and all water and sewer issues. They have not recused themselves on these matters as yet, although Mr. Mitchell recused himself on the CBD litigation, while Mr. Raine, recused himself, then unrecused himself on it when the vote taken on January 13, 2010 did not go his way. The obvious purpose of his decisive “unrecusal” was to benefit his and other CBD Council members’ personal interests. AUTHENTICITY OF EXHIBITS
22.

Petitioner has attached as Exhibits to Declarations herein, true and correct copies

of the documents substantiating the above. BENEFICIAL INTERESTS OF PETITIONER AND REAL PARTIES IN INTEREST
23.

Petitioner’s and others similarly situated’s beneficial interests are set forth in the The vote in question taken on January 18, 2011, is voidable by the Court and

Declaration of Peter Arth, Jr., infra.
24.

should be voided. OTHER
25.

City provided mandatory ethics training for new Council members prior to the

Council Meetings on January 13th and 18th, 2011. Each Council member also was provided an opportunity at CITY expense to attend ethics training sponsored by the California League of Cities in Sacramento during January, but only Council members Mitchell and Ed Steele attended. The City paid for Arliss Steele to attend but he did not do so. On information and belief, Council member Dolf said she would just look at the notes others brought back.
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26.

Petitioner will separately lodge a copy of the videotaped City Council Meetings in

question, which are also viewable at SiskiyouTV. Com. PRAYER
27.

Petitioner prays this Court:
a.

Issue a Writ of Mandamus and/or Prohibition directing defendants to vacate and set aside the vote taken on January 18, 2011 regarding the CBD litigation and reinstate the vote taken on January 13, 2011. Issue an alternative writ directing Council members Raine, Arliss Steele and Dolf to show cause to this Court at a time and date set by this Court as to why they should not invalidate the January 18, 2011 vote on the CBD litigation, as violative of the constitutional rights of Petitioner and Real Parties, on the grounds set forth herein above, and particularly that said vote was a result of violations of the Brown Act and the Political Reform Act of 1974, and on the ground that said Council vote was improper legislation or unlawful governmental action in excess of the authority of CITY, and abstain from further voting on CBD litigation or related water and sewer issues while they have not declared their respective conflicts of interest. Issue a Bill of Peace directing CITY to cease any future attempts to set aside the legitimate vote taken on January 13, 2011 pertaining to the CBD litigation. Award Petitioner and real parties their expenses and damages for their lost time in bringing this action pursuant to CCP §1095; Award Petitioner attorneys’ fees and costs under the Brown Act, the Fair Political Practices Act and CCP § 1021.5 as private attorneys general; Grant such other relief as the Court deems proper at law and in equity (CCP § 1094.5(f).)
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b.

c.

d.

e.

f.

g.

Declare the conflicts of interest of the Council member respondents regarding voting on and settlement of the CBD litigation, invalidating their settlement agreement as may exist. Compel their compliance with law by requiring that they (1) Publicly identify the financial interest that gives rise to the conflict of interest or potential conflict of interest in detail sufficient to be understood by the public, except that disclosure of the exact street address of a residence is not required; (2) Recuse himself or herself from discussing and voting on the matter, or otherwise acting in violation of Section 87100; and (3) Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters.

Dated: February 1, 2011.

DAVID HICKS, APLC By: _________________ David Hicks Attorney for Petitioner Peter Arth Jr.

VERIFICATION I am the Petitioner herein. I have read the foregoing Petition and know its contents. The facts alleged in this Petition are within my own knowledge and I know these facts to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this verification was executed on February ___, 2011 at Dunsmuir, California. _________________________ Peter Arth, Jr.
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DECLARATION OF PETER ARTH, JR., IN SUPPORT OF PETITION I, Peter Arth, Jr., declare:
1. 2.

I make this declaration in support of the above Petition. Group Exhibit 1 attached hereto as pages 13A-K are true and correct copies of the originals of documents obtained or authored by declarant, being either their author or familiar with them and the sources from whom your declarant obtained them, is informed and believes to be true and correct copies of the originals. I have personal knowledge of the attached Exhibit's contents which support the relief sought, in that said documents show that the Petition is true. I have personal knowledge of the matters stated in this declaration. The source of my information given herein is derived from personal knowledge, investigation and discussions conducted in the ordinary course of this case. If called upon to testify as to the truth of the matters contained herein, because I have seen, observed, witnessed or heard each of said matters, I would be competent to and would testify as follows: That the attached documents are true and correct copies of the originals of said documents. I reside at 5859 Sacramento Avenue in Dunsmuir, California. I retired from my legal career at the California Public Utilities Commission in 2007, although I remain an active member of the California Bar. I moved to Dunsmuir in the Spring of 2008. I was elected to the Dunsmuir City Council in November of 2008, and served until December 2, 2010, when I was recalled due to a campaign led by “Citizens For A Better Dunsmuir”. At the November 2010 election, the voters of Dunsmuir chose to recall two Council members and to elect four new Council members. Each new member was also a highly visible member—as its slate candidates—of “Citizens For A Better
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3.

4.

5. 6.

7.

Dunsmuir”, and a part of the group of Plaintiffs who initiated a lawsuit in Superior Court last year for the sole purpose of stopping or slowing down urgently needed repairs to our City’s sewer and water utilities. The recall and lawsuit were simply two of CBD’s challenges to the actions of the prior City Council to address years of neglect to Dunsmuir’s infrastructure. CBD’s recall campaign materials against your declarant and former Vice Mayor Mario Rubino delivered the twin message that our utility systems were safe and reliable, and that the rate increases needed for repair were unaffordable.
8.

In fact, the community eventually agreed with the prior Council and voted twice via the Prop 218 process to accept the obvious need for repairs and rate increases. And now, even the Plaintiffs seem to agree the rate increases authorized by CITY in the last two years were (and are) needed, and are now urgently seeking dismissal of this misguided lawsuit against our City. However, they want the City’s ratepayers to absorb the costs to the City imposed by their useless lawsuit. I, along with many other residents, oppose changing the City’s current policy in favor of seeking to recover costs from losing litigants who sue our City. My position on this issue is contained in my letters of and e-mails which are attached hereto as Exhibits 13-A-L , 13-L being a CBD agenda.
2

9.

I also believe our community supports and expects its City government to be in conformance with laws that assure ethical, open and fair decision-making at all levels of government. It is my position that a majority of the Dunsmuir City

2 December 10, 2010 to Hon. Nick Mitchell; December 30, 2010 to Hon. Kirk Andrus (draft to be replaced hereafter with original); January 8, 2011 to Hon. Nick Mitchell; and January 21, 2011 e-mail to Hon. Nick Mitchell.

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Council did not meet those expectations, and participated in illegal City Council meetings on January 13 and 18th, 2011 for the purpose of voting in their selfinterest, rather that the community’s interests, in approving a “settlement” of their lawsuit against themselves.
10.

Notwithstanding my best efforts to compel compliance with the Political Reform Act of 1974 at these two meetings, flagrant violations of those laws, as well as provisions of the Brown Act, occurred repeatedly. The agendas for the two meetings (attached) show the initial intent of the Council to consider the “settlement” in closed session. This would have denied the public access to documents justifying the “settlement”. It would have denied the public any voice in the “settlement”. And, it would have denied the public the opportunity to observe open and transparent decision-making upon a record of facts and applicable law, including a discussion of why it is in the City’s interest to reward the efforts of a private party who chose “assault by lawsuit” as a means to participate in City governance around water and sewer repairs. I am informed by my counsel that the Court has entered an order of dismissal on January 25, 2011 in the CBD lawsuit. If so, I feel the Court has been inadvertently led into a gross miscarriage of justice, and must act immediately to remedy an effort to compound unlawful city government with an improper judicial response that serves to reward egregious violations of state and local law. I also seek to intervene in this lawsuit on behalf of the City of Dunsmuir and its ratepayers and citizens to enforce the provisions of the Brown Act and Political Reform Act of 1974. I believe I can adequately and fairly represent these interests because of my professional career as an attorney for the State of California. I spent over 30 years working at the California Public Utilities Commission in attorney positions of
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11.

12.

13.

increasing responsibility, including 10 years as General Counsel (1991-2001) and 5 years as Chief of Staff to the President of the Commission. During my career, I was involved in every aspect of utility rate setting and regulation for investorowned utilities operating in California, including water and sewer utilities. I have served as Chairman of the California Conference of Public Utility Counsel and President of the National Conference of Regulatory Attorneys. During most of my career, I advised, enforced and was subject to the provisions of the State open meeting and conflict of interest laws. I frequently consulted with experts, including the staffs of the Fair Political Practices Commission and Attorney General, to assure my advice was competent and appropriate to the particular facts and law. I took great pride in changing the ethical atmosphere in Dunsmuir City government during my two years of service as Council member and Mayor. Changes included adopting a City of Dunsmuir Conflict of Interest Code, responding to the Siskiyou County Grand Jury report of conflict of interest violations by the City in 2007, and replacing our prior City Manager with a professional administrator well-versed in these laws.
14.

I believe the Court must act immediately to review the City Council settlementaction votes discussed passim in this Petition for Writ of Mandate involving the “settlement” of the lawsuit and its adoption by the Court. The result cannot stand. Furthermore, the cost to all parties of continuing the stalemate should be recognized and assessed, now, before more economic harm occurs. It is my position that the City of Dunsmuir should not lose a penny from its water and sewer revenues in order to pay the legal costs and legal fees incurred by CITY in defending that meritless lawsuit—especially by an illegal vote by Council members with a conflict of interest. If anything, they should be assessed the damages resulting from hurting the City’s credit rating and adding wasted time
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and money for the work that needs to be done. And they should be assessed the costs of this action. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, except for those matters stated on information and belief, which I believe to be true and correct. _________________________ Peter Arth Jr.

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DECLARATION OF DAVID HICKS IN SUPPORT OF PETITION I, David Hicks, declare as follows: I am a duly licensed attorney at law, admitted to practice before all courts in the States of California and New York, the United States Supreme Court and the United States District Courts for Maine, and the Northern, Central and Eastern Districts of California. I am an attorney of record for Petitioner herein. I make this declaration in support of the above Petition. Exhibit 14A-H hereto is a document that declarant, being familiar with as attorney of record in this case and the sources from whom your declarant obtained them, is informed and believes to be a true and correct copy of the original. I have personal knowledge of the attached Exhibit's contents which support the relief sought, in that said documents show that the Petition is true. If called upon to testify as to the truth of the matters contained herein, because I have seen, observed, witnessed or heard each of said matters, I would be competent to and would testify as follows:
1.

That the attached documents are true and correct copies of the originals of said documents. I have attached as Exhibit 14 A-H, Dunsmuir City Council Minutes of January 13, 2011, and as 14-I, CBD’s California Form 410, Statement of Organization. That the Dunsmuir City Council meetings of January 13 and 18, 2011 are on the internet and readily available to the Court and all parties at www.siskiyoutv.com. Exhibit 14-A is a true copy of the City Council Minutes for Jan. 13, 2011. I have obtained a video DVD of said meetings, which I intend to lodge with the Court at the time of hearing should that please the Court.

2.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, except for those matters stated on information and belief, which I believe to be true and correct.
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David Hicks

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MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF PETITION. Petitioner sets forth herein authority for the relief sought and the statutory basis for it, showing violations by City Council persons of the rights of residents, voters and tax and rate payers of the City of Dunsmuir. This Court has jurisdiction under CCP § 1085. This Court retains its common law authority to do justice. Cal. Civ. Code [“CC”] § 20, ¶2. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement. CC § 3513. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it. CC § 3543. Here, pursuant to both the Brown Act (for a writ of mandate) and the Fair Political Practices Act of 2010 (for injunctive relief), the respondents can and should be compelled as government officers to perform a duty owed to the petitioner and all others similarly situated. Petitioner seeks a Writ of Mandate: as a representative plaintiff seeks all three types of mandamus, alternative, commanding the respondents either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it; peremptory, for an absolute and unqualified command to respondents to rightly do the acts in question, and continuing, in general public interest, requiring the City Council to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice—and without wasting public funds in doing so as recognized in Humane Society of the United States v. State Bd. of Equalization, 152 Cal. App. 4th 349 (2007). Petitioner seeks a Bill of Peace. A bill of peace is one which is filed when a person has a right which may be infringed or denied by various persons, at different times, and by different actions. In such a case the court will prevent a multiplicity of suits, by
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directing an issue to determine the right, and ultimately grant an injunction. A single action should be sufficient to end the practices complained of herein. There is another class of cases in which a bill of peace is now ordinarily applied; namely, when the plaintiff, after repeated and satisfactory trials, has established his right at law, and is still in danger of new attempts to controvert it. In order to quiet the possession of the plaintiff, and to suppress future litigation, courts of equity, under such circumstances, will interfere, and grant a perpetual injunction. The Brown Act expressly provides remedies to which Petitioner is entitled as a matter of law. It governs city Councils. Govt. Code § 54952(a). And it governs any gathering of a quorum of a legislative body to discuss or transact business under the body’s jurisdiction, prohibiting serial meetings. It guarantees the right of the public to comment on agenda items before or during consideration by legislative body. Time must be set aside for public to comment on any other matters under the body’s jurisdiction. Govt. Code § 54954.3. In Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, 796-798, the court concluded that the Act applies equally to the deliberations of a body and its decision to take action. If a collective commitment were a necessary component of every meeting, the body could conduct most or all of its deliberation behind closed doors so long as the body did not actually reach agreement prior to consideration in public session. Accordingly, the court concluded that the collective acquisition of information constituted a meeting. It also provides for civil remedies: Individuals or the district attorney may file civil lawsuits for injunctive, mandatory or declaratory relief, or to void action taken in violation of the Act. Attorneys’ fees are available to prevailing plaintiffs. Govt. Code §§ 54960, 54960.1 and 54960.5

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In Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 105, the court concluded that a series of individual telephone calls between the agency attorney and the members of the body constituted a meeting. In that case, the attorney individually polled the members of the body for their approval on a real estate transaction. The court concluded that even though the meeting was conducted in a serial fashion, it nevertheless was a meeting for purposes of the Act. (See also, 65 Ops.Cal.Atty.Gen. 63, 66 (1982); 63 Ops.Cal.Atty.Gen. 820, 828-829 (1980). Petitioner contends that the communications of the Council members with their private counsel in the CBD litigation constitute such a meeting. January 18, 2011 was a special meeting. At every special meeting, the legislative body shall provide the public with an opportunity to address the body on any item described in the notice before or during consideration of that item. § 54954.3(a). Here, both a significant number of members of the public and their representative on the Council, Ed Steele were not afforded this right in full. Further, the Act provides that the legislative body shall not prohibit a member of the public from criticizing the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body. (§ 54954.3(c).) Public meetings of governmental bodies have been found to be limited public fora. As such, members of the public have broad constitutional rights to comment on any subject relating to the business of the governmental body. Any attempt to restrict the content of such speech must be narrowly tailored to effectuate a compelling state interest. Specifically, the courts found that policies that prohibited members of the public from criticizing school district employees were unconstitutional. Leventhal v. Vista Unified School Dist. (1997) 973 F.Supp. 951; These decisions found that prohibiting critical comments was a form of viewpoint discrimination, and that such a prohibition promoted discussion artificially

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geared toward praising (and maintaining) the status quo, thereby foreclosing meaningful public dialogue. Petitioner seeks injunctive and other relief under The Fair Political Practices Act, which expressly provides remedies to which Petitioner is entitled as a matter of law. § 81001. Findings and Declarations. The people find and declare as follows: (a) State and local government should serve the needs and respond to the wishes of all citizens equally, without regard to their wealth; (b) Public officials, whether elected or appointed, should perform their duties in an impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them.... § 81003. Construction of Title. This title should be liberally construed to accomplish its purposes. § 81007(f). Adequate enforcement mechanisms should be provided to public officials and private citizens in order that this title will be vigorously enforced. § 91003. Injunction. (a) Any person residing in the jurisdiction may sue for injunctive relief to enjoin violations or to compel compliance with the provisions of this title.... (b) Upon a preliminary showing in an action brought by a person residing in the jurisdiction that a violation of Article 1 (commencing with Section 87100), Article 4 (commencing with Section 87400), or Article 4.5 (commencing with Section 87450) of Chapter 7 of this title or of a disqualification provision of a Conflict of Interest Code has occurred, the court may restrain the execution of any official action in relation to which such a violation occurred, pending final adjudication. If it is ultimately determined that a violation has occurred and that the official action might not otherwise have been taken or approved, the court may set the official action aside as void. The official actions covered

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by this subsection include, but are not limited to orders, permits, resolutions and contracts, [such as the agreed disposition of the CBD litigation].... § 83112. Rules and Regulations. The Commission may adopt, amend and rescind rules and regulations to carry out the purposes and provisions of this title. [Thus the Fair Political Practices Act of 1974 devolved into the here quoted Fair Political Practices Act of 2010.]. § 87100. Public Officials; State and Local. No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest. § 87105. Manner of Disqualification. (a) A public official who holds an office specified in Section 87200 [Here, respondent Council members and the City Attorney, John Kenny] who has a financial interest in a decision within the meaning of Section 87100 shall, upon identifying a conflict of interest or a potential conflict of interest and immediately prior to the consideration of the matter, do all of the following: (1) Publicly identify the financial interest that gives rise to the conflict of interest or potential conflict of interest in detail sufficient to be understood by the public, except that disclosure of the exact street address of a residence is not required. (2) Recuse himself or herself from discussing and voting on the matter, or otherwise acting in violation of Section 87100. (3) Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters.

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(4) Notwithstanding paragraph (3), a public official described in subdivision (a) may speak on the issue during the time that the general public speaks on the issue. [Neither of the recused Council members complied with this section.] § 91012. Costs; Attorney Fees; .... The court may award to a plaintiff or defendant other than an agency, who prevails in any action authorized by this title his costs of litigation, including reasonable attorney’s fees.... § 91007(a). Procedure for Civil Actions. Any person, before filing a civil action pursuant to Sections 91004 and 91005, must first file with the civil prosecutor a written request for the civil prosecutor to commence the action. The request shall include a statement of the grounds for believing a cause of action exists. The civil prosecutor shall respond to the person in writing, indicating whether he or she intends to file a civil action. .... [Here Petitioner has, by the undersigned counsel’s direct telephone conversation with Kirk Andrus, District Attorney of Siskiyou County. obtained the consent of the District Attorney of Siskiyou County to proceed in this matter civilly, and written confirmation will be filed under separate cover well before the hearing date. Since his permission is not required to file under the Brown Act, we have proceeded apace.] Petitioner seeks other relief already spelled out in the prayer that is fully warranted and factually supported. This relief should be granted expeditiously so that the cost of these proceedings can be minimized to all sides. Conclusion All CBD candidates refused to declare what their specific conflicts of interest are, two failed to recuse themselves in the matter of litigation their organization had brought against the City, one recused himself and then later purported to "unrecuse” himself, and
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he and the Mayor refused despite publicly stated cautionary instruction by the City Attorney, who may be conflicted in this matter. Three Council members flatly ignored the publicly stated legal advice about how to proceed when there is a conflict of interest. Council member Ed Steele was not permitted to exercise his function as a duly elected representative. These actions cannot stand, lest we care no longer about plurality and minority interests in this State, about freedom of political speech, and about representative democracy, and open and honest deliberative processes, in carrying out the business of “We, the People.” It is not so much the actual dollar cost of the defense CITY paid for the CBD lawsuit as it is the precedent setting idea that conflicts of interest can be swept under the rug and dissenting views stifled in the deliberative process. The implications of what has happened so far portend serious future ills and a reversion back to the good old days of disregarding the rule of law. Bullying cannot prevail over healthy and open debate, reasonable compromises and recognition of the rights of the People to run an aboveboard honest and trustworthy government. This relief is necessary so that bullying “My way or the highway” or “Shut up—I’ve lived here longer than you” does not supplant the rule of law. It is the Court’s duty to protect respect for the law, the Judicial System, and the lawful and above-board functioning of legislative bodies, in deference to the rights of The People. Dated: February 1, 2011. Respectfully submitted, David Hicks, APLC By _____________
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Case title: Arth v. Raine et al. Case number: PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is PO Box 562, Dunsmuir CA 96025. On the date signed below, I served upon the parties listed on the attached service list a copy of the following documents: Verified Petition For Writ Of Mandate And/or Prohibition Or Other Appropriate Relief From The Unlawful Determination Of The City of Dunsmuir City Council On January 18, 2011 Re Pending Litigation Settlement; for Declaratory Relief and a Bill of Peace; Declarations of David Hicks and Peter Arth, Jr., with Exhibits attached; Memorandum of Points & Authorities. [CCP 1005: opposition or reply papers only] By transmitting via facsimile document(s) listed above to the fax number(s) set forth below, as stated on the attached service list, before 5:00 p.m. or other method ensuring delivery by the end of the next business day. [CCP 1011] By personally delivering or causing to be delivered by messenger the document(s) listed above to the person(s) on the attached service list. [CCP 1013(a)(3) by First Class Mail] By placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, depositing that envelope in the United States mail at Emeryville, California, addressed as set forth below or on the attached service list, (and return receipt requested as to out of state addresses if document is a pleading or statement of damages). I am readily familiar with our law firm's practice of collection and processing correspondence for mailing. Under that practice it is deposited with the U.S. Postal Service on the same day, with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one non-holiday after the date of deposit for mailing shown in this proof of service. [CCP 1013(c) by overnight delivery] By overnight delivery on the parties and counsel shown on the Attached Service List] in said action, by placing a true copy thereof enclosed in a sealed envelope, with delivery fees paid or provided for, and delivering that envelope to an overnight express service carrier as defined in CCP § 1013(c). [CCP 1013(e) agreement of parties] By facsimile transmission to the parties below at the facsimile numbers shown pursuant to written agreement. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February __ , 2011, at Dunsmuir, California.
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__________________________

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ATTACHED SERVICE LIST

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