VIA FACSIMILE AND FEDERAL EXPRESS

Dear Chairman Smith and Board Members:

On March 6, 2001, the Board is scheduled to consider whether to approve an amendment to the contract between the County of Orange and the Orange County Regional Airport Authority (OCRAA). If this contract is approved, the County will pay $5 million to OCRAA, at the rate of $1 million per quarter, for the five-quarter period between April 1, 2001 and June 30, 2002. The stated purpose of this proposed appropriation is "to help fund a public information program . . . ." This program will be expanded beyond that previously considered by the County, and will "include OCRAA staffing and consulting costs directly related to the public information program, as well as costs associated with collateral materials supporting the public information program."

A "public information" program was, in a significantly smaller format, originally authorized by the Board on November 23, 1999. However, after the passage of Measure F, the County suspended payments to OCRAA effective April 7, 2000, Measure F’s effective date. The stated basis for resuming and dramatically expanding this "public information" program is the ruling by Judge Otero that Measure F is invalid.

The County apparently believes that Judge Otero’s ruling invalidating Measure F remains in effect even though the El Toro Reuse Planning Authority (ETRPA) and Jeffrey C. Metzger have appealed from that ruling. This assumption is incorrect. Code of Civil Procedure Section 1110b provides:

This statute plainly states that the taking of an appeal from a judgment granting a writ of mandate operates as a stay of the judgment itself, unless the trial court or the Court of Appeal holds to the contrary upon a proper showing by the petitioner of irreparable damage to its "business or profession."

There has been no order in the Measure F litigation directing "that the appeal shall not operate as a stay of execution." Consequently, under the plain language of Section 1110b, the judgment granting the writ of mandate has been stayed pending appeal. Measure F thus remains in full force and effect and the County is obligated to comply with it.

The cases confirm what Section 1110b plainly states. For example, in Agricultural Labor Relations Board v. Tex-Cal Land Management, Inc., 43 Cal. 3d 696 (1987), the Supreme Court held that "a judgment granting a writ of mandate . . . is automatically stayed pending appeal with limited statutory exceptions." Id. at 706 n.9. Similarly, in Citizens for Non-Toxic Pest Control v. Department of Food & Agriculture, 187 Cal. App. 3d 1575 (1986), the court stated that the defendants’ "filing a timely notice of appeal automatically stayed the effect of the relief in mandamus . . . ." Id. at 1580. That is what has happened in the Measure F litigation, and the appeals have thus stayed the trial court’s judgment.

In addition to granting a writ of mandate, the Superior Court also entered a permanent injunction enjoining the County from implementing or enforcing Measure F. This, too, is stayed pending appeal. While, under California law, a "prohibitory" injunction is not stayed pending appeal, a "mandatory" injunction is automatically stayed, and the permanent injunction granted by the Superior Court in this case is mandatory. Under the cases, this classification depends on whether the trial court’s order "was designed to preserve the status quo between the parties." Union Pacific R.R. v. State Bd. of Equalization, 49 Cal. 3d 138, 158 (1989). The status quo, in turn, means "the last actual peaceable, uncontested status which preceded the pending controversy." 14859 Moorpark Homeowners’ Ass’n v. VRT Corp., 63 Cal. App. 4th 1396, 1408 (1998)(citation omitted). In this context, the status quo is the situation as it existed prior to initiation of the Measure F litigation, when Measure F had been enacted and was binding upon the County. The trial court’s judgment thus involves a mandatory injunction that has also been stayed by the appeals.

For these reasons, if the County wishes to spend funds without complying with Measure F, it must obtain an order from an appropriate court determining that the trial court’s writ of mandate/mandatory injunction has not been stayed pending appeal. We assume the County will understand its legal obligations in this regard, and not engage in actions that constitute the unauthorized and impermissible expenditure of public funds without compliance with Measure F.

Finally, it is also clear that the proposed expenditures would result in a significant violation of the California Environmental Quality Act (CEQA). The County is currently in the process of evaluating EIR 573, a draft environmental impact report that considers both aviation and non-aviation uses of the closed El Toro Marine Corps Air Station. Under CEQA, the County must evaluate and certify this EIR, and thus consider environmental impacts as part of its decision-making process, before it makes any decision as to civilian reuse of El Toro. Laurel Heights Improvement Ass’n v. Regents of the Univ. of California, 47 Cal. 3d 376, 394 (1988). For the County to authorize the expenditure of $5,000,000 in funds to proselytize the County’s electorate to support an airport before the County has even decided whether there should be an airport is a violation of that well-established principle.

RCJ/lkv