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sr-031081-13d'3 DATE: March 10, 1981 T0: Mayor and Council Members FROM: Bill Jennings SUBJECT: Request for City Attorney's Report on Effect of Judgments Rendered by Courts Concerning Rent Control Board h~AR 1 0 191 During the trial of the Baker case, David Shulman (the economist used by the City and .the Rent Control Board) testified that landlords have lost millions of dollars because of rent control. The Notice of Intended Decision by Judge Levine in the Baker case declares that the way in which the Rent Control Board has calculated rent adjustments is unconstitutional, at least if such rent adjustments are not based upon the fair market value of the property. I have also been informed recently of the judgments in several lawsuits which were filed only against the Rent Control Board, in which the judge found that the Rent Control Board has, as a general practice, acted arbitrarily and unreasonably in connection with petitions for individual rent adjustments and other proceedings before the Board. Since the United States Supreme Court has recently held that civil rights actions may be brought against local governments, even though they have acted in good faith, the holdings in these various court cases may result in substantial damages being awarded against the City and the Rent Control Board. Because of these facts, I request that the Council direct the City Attorney to prepare a report for presentation at the next City Council meeting concerning the following points: 1. A summary of the comments made by the Courts in judgments already rendered against the City or Rent Control Board ~3 PEAR 1 0 X981 To: Mayor and City Council -2- March 10, 1981 concerning the matter in which the charter amendment is being enforced by the Rent Control Board. 2. Whether there is any substantial likelihood that actions based upon civil rights violations or other claims may be brought against the City or Rent Control Board based upon their procedures in enforcing the charter amendment. 3. If a substantial verdict is awarded against the Rent Control Board arising out of its enforcement could the Rent Control Board require Monica to pay such judgment through through a general rent increase? Or Rent Control Board to raise rents or in order to pay such a judgment? of the charter amendment, the tenants of Santa the registration fees or could a court order the the registration fees 4. If a substantial verdict is awarded against the Rent Control Board arising out of its enforcement of the charter amendment, and if the Rent Control Board does not have sufficient funds to pay such judgment, could the City be required to use its general tax revenues to pay such a judgment? Could the City be required to raise taxes in order to pay such a judgment? 5. Does the City Council have any power to ensure that the charter amendment is enforced in a fair and constitutional manner? WHJ:cIs CA:SSS Council Meeting 3/11/81 To: Mayor and City Council From: City Attorney Subject: Report on Rent Control Litigation This report responds to Councilmember Jennings' request for information concerning litigation involving the Rent Control Board. It also serves to inform the Council and the public about the basic features of the recent Baker decision. Amore thorough report will be prepared if Council directs. I. RESPONSES TO MR. JENNINGS' QUESTIONS 1. What comments have courts made in judgments rendered against the City and Rent Board? While some decisions in cases where the City was a party have held parts of the Charter Amendment unconstitutional, e.9., Nash, Canon, the judges have not commented upon the Board's enforcement procedures. The Board's legal staff has informed us that the same is true in cases where the Board alone was a party to suit. 2. Is there a substantial likelihood that actions alleging violations of civil rights may be brought against the City or Board based upon procedures for enforcing the Charter Amendment? 1 Yes. There are at least 5 pending lawsuits, and one additional claim, which allege the City and the Board have violated the civil rights of persons subject to rent control. The primary contentions are (1) the City and the Board have confiscated property and abridged property rights, and (2) the City and the Board have denied plaintiffs due process of law. The recent United States Supreme Court decision of Owen v. City of Independence holds that a City is liable for violations of constitutional rights caused by its agents, even if done in good faith. Individuals are not liable for good faith violations. It is not clear if the Rent Board is a "person" liable under the Civil Rights Act. Another Supreme Court case, Agins v. City of Tiburon, holds that a city may be liable for "inverse condemnation" if it regulates property in a manner which deprives an owner of substantially all beneficial use. Thus, if the City is ultimately held to have confiscated the property of landlords through enforcement of rent control, numerous actions alleging millions of dollars in damages can be anticipated. 3. If damages are rendered against the Board, could the Court or the Board order rents or fees increased to pay them? This has not happened in any case litigated thus far. The Board is empowered to charge fees necessary to defray its reasonable expenses. It is questionable if the costs of a constitutional violation could be passed on as a reasonable 2 expense. It is unlikely a court would order the Board to increase rents or fees. 4. If the Board lacks funds to pay a judgment, could the City be held liable? Yes. The City is primarily liable for damages for civil rights violations and for condemnation. The Board is an agency of the City, and not an independently financed district or other type of separate corporate entity. No court has ever required a city to raise taxes; indeed, we are specifically prohibited from raising taxes except under narrow circumstances, when authorized by a 2/3 vote of the people. 5. Does the City Council have the power to ensure that the Charter Amendment is enforced in a fair and constitutional manner? Yes. The City Council is empowered to exercise all rights and duties under the City Charter except those specifically conferred on other agencies by the Charter. If a portion of the Charter Amendment is declared unconstitutional, the Council may take action necessary to avoid the consequences of such a holding (damages). Thus, while the Council cannot, under the Charter, regulate tents, if a final court judgment declares the actions of the Board to be invalid as a confiscation of property or a denial of 3 equal protection or due process of law, the Council may act to cure the defect and avoid liability to the general fund. The power of the City to act to prevent a waste of public funds, in the absence of a final judgment, is more complex. The Council has adopted an ordinance delegating to the Board independent control over its financial, personnel, and budgetary affairs. The validity of this delegation, together with related questions concerning the allocation of powers between the Board and other agencies established by the Charter, is the subject of opinions requested by various City officials and agencies. We expect these opinions to be prepared before April 1, 1981. II. THE BAKER DECISION On March 6, 1981, Judge Richard Lavine issued a "Memorandum of Intended Decision" in the case challenging the validity of the rent adjustment provisions of the Charter Amendment and the Board regulations which implement it. The court ruled that the Charter Amendment would be confiscatory if it was not interpreted to allow landlords a fair return on their "property" (as opposed to "historical investment"). The court held that the concept of "property" must take into account current fair market value. Board Regulation 4040, which establishes a formula for calculating return on investment, was struck down in its entirety. He ruled the 1979 (78) and 1980 (6.5~) general rent adjustments granted by the Board were unconstitutionally low. He struck those provisions of the Amendment which required the Board 4 to consider the "speculative nature" of investment and to discount forseeable negative cash flows. Judge Lavine held that the principal defect of the law as implemented was its abridgment of the Fifth Amendment prohibition against the taking of private property for public use without just compensation. The judge also ruled the Amendment violated the Fourteenth Amendment guarantee of equal protection of the laws. He further found violations of related provisions of the California Constitution. The Court did not issue an injunction or a final declaration of rights. He read Agins v. City of Tiburon to encourage him to take action before a "taking" of property occurred "in order to prevent the imposition upon the taxpayers of Santa Monica of a liability in a huge sum for compensation to the landlords of any future "taking" of property." He thus balanced the competing interests in order to (a) produce a result which is non-confiscastory to the landlords; (b) prevent the result of an actual "taking" of real property; and (c) preserve as much of the Charter Amendment as can be salvaged, to carry through the wishes of the Santa Monica voters. Thus, Judge Lavine, having dclared the basic validity of rent control and delineated those features of the Santa Monica law which he believed to violate the constitution, reserved final judgment pending a further hearing. The Board and the City Attorney were given an opportunity to present a new plan or regulations to meet the constitutional infirmities set forth in 5 the cecision._ If submitted, the flan must Ue filed with tine court by June i, 1481. Phe determination of ~,+hat to do in response to the decision rests with the Rent Control Eoard and the City Council. ~rhe City Attorney's ot~°ice and the Board's legal staff are conferring on natter, of litigation strategy; options and recormiendations caill be fort_ico*7ing. Pre_~ared by: Stephen S. Stark Acting City Attorneg