Public Forum: Passing Retail Ordinance Would Bring Complex and Expensive Litigation

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The Malibu Country Mart is one of several shopping centers in the Civic Center.

The proposed commercial retail ordinance being considered by the Malibu City Council would, if enacted, ensnarl Malibu in complex, lengthy and, most significantly, very expensive litigation which those present at last night’s City Council meeting do not seem to appreciate or understand. 

Over the course of my 40-plus year legal career with a major international law firm, I litigated countless constitutional and statutory cases, not unlike the case that will inevitably be brought by business interests if the proposed ordinance is enacted. In addition to practicing law, I have taught these and related subjects at various law schools—Complex Appellate Litigation for 10 years at the University of Chicago, Administrative Law (George Mason, Georgetown and Pepperdine) and Federal Courts (George Mason). 

In outline, here is how I would expect litigation over the ordinance to unfold. Business plaintiffs would likely file their multi-count complaint in Federal Court under the Civil Rights statute (section 1983), claiming that the ordinance violates the U.S. Constitution (specifically, the dormant Commerce Clause and the Equal Protection Clause) as well as various California statutory and constitutional provisions. They would seek, and probably fairly easily obtain, a preliminary injunction staying enforcement of the ordinance, either from the trial court or the Ninth Circuit (denials of preliminary injunction are immediately appealable). 

The City of Malibu, of course, could seek to have the case remanded to state court, which probably would not succeed, but which in any event, would be a costly, time-consuming and expensive undertaking. 

Once these preliminary steps are completed, the real litigation begins. The business plaintiffs no doubt would seek and be granted discovery given that the intent, motives and effects of the ordinance are factually disputed. This would entail not only documentary discovery but also depositions of city officials and third-parties, perhaps even including the proponents of the ordinance. Thereafter, the parties would file motions for summary judgment on some counts and proceed to trial on others. 

Eventually, the trial court would render a written decision which would then be appealed by one or both sides. The Ninth Circuit would then hear the case and conceivably seek an advisory opinion from the California Supreme Court on some state law questions (as it did regarding the plaintiffs’ standing in the recent Proposition 8 case). However the Ninth Circuit decides, there would be the very real possibility of U.S. Supreme Court, given the unprecedented nature of the ordinance. 

So who will pay for all of these years of costly litigation? Certainly not the nostalgic proponents of the ordinance. Certainly not the business plaintiffs; their litigation expenses are tax-deductible business expenses and they might even be so bold as to seek recovery of their legal fees from the City of Malibu under section 1988, which provides for the recovery of legal fees by the prevailing plaintiffs in cases brought under section 1983. 

In short, the City of Malibu will have spent a lot of money if it loses. But also even more in the unlikely event that it wins. For winning would be only the beginning, as it must continue to fund and enforce the ordinance, drawing resources away from other, more worthy projects. 

I have lived in many places (the south side of Chicago, Bethesda, Md., Bozeman, Mont.), each concerned with retaining its essential character in a changing world. Each, in my judgment, has done so without resorting to discriminatory and counterproductive ordinances, instead accepting the best of the new, while retaining those things that make each community unique. I am certain Malibu can do the same without this ordinance. 

—Edward Warren