Legal Opinions of the Attorney General -
Yearly Index

Opinions published in 1991

Opinion Question Conclusion(s) Issued
91-719 May a county enact an ordinance which bans smoking in all county buildings and enforce the ordinance against members of the public in county buildings located within incorporated territory? A county may enact an ordinance which bans smoking in all county buildings and enforce the ordinance against members of the public in county buildings located within incorporated territory.

Official Citation: 74 Ops.Cal.Atty.Gen. 211
12/05/1991
91-713 Is property owned by a city redevelopment agency exempt from property taxation if the property is located within the city's limits but outside the boundaries of any project areas of the redevelopment agency? Property owned by a city redevelopment agency is exempt from property taxation if the property is located within the city's limits but outside the boundaries of any project areas of the redevelopment agency.

Official Citation: 74 Ops.Cal.Atty.Gen. 207
11/21/1991
91-601 May state prisoners and California Youth Authority wards be excluded from the total population for purposes of redistricting county supervisorial districts? State prisoners and California Youth Authority wards may be excluded from the total population for purposes of redistricting county supervisorial districts.

Official Citation: 74 Ops.Cal.Atty.Gen. 162
08/23/1991
91-506 May the Department of Motor Vehicles disclose individual mailing and residence addresses contained in its records to the following persons or businesses: (1) vehicle manufacturers for vehicle recall purposes, (2) persons and firms which have a lien on a vehicle for towing or storage purposes, (3) persons involved in service of process, (4) vehicle dealers, (5) vehicle dismantlers, (6) insurance companies, and (7) financial institutions? If the Department of Motor Vehicles has been provided with a mailing address different from an individual's residence address, it may disclose such mailing address to (1) vehicle manufacturers for vehicle recall purposes, (2) persons and firms which have a lien on a vehicle for towing or storage purposes, (3) persons involved in service of process, (4) vehicle dealers, (5) vehicle dismantlers, (6) insurance companies, and (7) financial institutions. It may disclose an individual's residence address under limited conditions to the above-named persons or businesses, except persons involved in service of process (unless through an attorney in limited situations) and vehicle dismantlers.

Official Citation: 74 Ops.Cal.Atty.Gen. 201
11/07/1991
91-404 1. May a person who is elected or appointed to the position of county superintendent of schools continue to serve as a member of the State Board of Education?

2. If not, what is the legal effect of the person's vote as a member of the State Board of Education once the person assumes the position of county superintendent of schools?
1. A person who is elected or appointed to the position of county superintendent of schools has accepted an office which is incompatible with membership on the State Board of Education, and has automatically vacated the board membership.

2. The person's vote as a member of the State Board of Education after the assumption of the office of county superintendent of schools would be valid since the officer would still be a de facto member of the Board.

Official Citation: 74 Ops.Cal.Atty.Gen. 116
07/18/1991
91-403 1. Under section 2 of the Voting Rights Act, does the creation of "majority-minority" districts in a redistricting plan take precedence over all other criteria (including preservation of incumbencies) used to draw district boundaries except for the "one person, one vote" requirement?

2. If a district can be created with a racial minority population high enough to guarantee the election of a candidate of the racial minority community's choosing, does section 2 of the Voting Rights Act require the creation of such a district in a redistricting plan?

3. Do section 2 of the Voting Rights Act and the California Constitution require that geographically compact racial minority communities of interest not be divided in a redistricting plan?

4. Under what criteria must a redistricting plan be drawn to comply with the standards on political gerrymandering set forth in Davis v. Bandemer (1986) 478 U.S. 109?

5. To what extent does the California Constitution impose requirements or limitations on the drawing of district boundaries in addition to those of federal law?
1. Under section 2 of the Voting Rights Act, the creation of "majority-minority" districts in a redistricting plan takes precedence over all other criteria (including preservation of incumbencies) used to draw district boundaries except for the "one person, one vote" requirement.

2. If a district can be created with a racial minority population high enough to guarantee the election of a candidate of the racial minority community's choosing, section 2 of the Voting Rights Act generally requires the creation of such a district in a redistricting plan.

3. Depending upon the totality of the circumstances, section 2 of the Voting Rights Act and the California Constitution generally require that geographically compact racial minority communities of interest not be divided in a redistricting plan.

4. Under the standards articulated in Davis v. Bandemer (1986) 478 U.S. 109, a redistricting plan will be invalidated pursuant to constitutional equal protection guarantees, on the ground of political gerrymandering, only if the plan is intentionally discriminatory and imposes an actual discriminatory effect.

5. The California Constitution imposes requirements or limitations on the drawing of district boundaries in addition to those of federal law to the extent of requiring timely adjustment of district lines, single-member districts, contiguity of districts, consecutive numbering of districts from north to south and the geographical integrity of cities, counties and geographical regions to the extent possible.

Official Citation: 74 Ops.Cal.Atty.Gen. 136
08/09/1991
91-402 Are state agencies and departments required to utilize the services of the State Compensation Insurance Fund for the adjustment and disposition of claims for workers' compensation? State agencies and departments are required to utilize the services of the State Compensation Insurance Fund for the adjustment and disposition of claims for workers' compensation unless such services cannot be satisfactorily, adequately, or competently performed by the State Compensation Insurance Fund.

Official Citation: 74 Ops.Cal.Atty.Gen. 132
08/07/1991
91-306 1. May a local agency prohibit personal watercraft on all navigable waters within its jurisdiction?

2. Is a local agency required to provide the Department of Boating and Waterways with a justification for a proposed ordinance or regulation relating to vessels?
1. A local agency may prohibit personal watercraft on all navigable waters within its jurisdiction if the use of personal watercraft is incompatible with one or more other public uses on such waters and the ban is nondiscriminatory as a personal watercraft.

2. A local agency is not required to provide the Department of Boating and Waterways with a justification for a proposed ordinance or regulation relating to vessels.

Official Citation: 74 Ops.Cal.Atty.Gen. 174
09/26/1991
91-303 1. Do judges and commissioners of the municipal court qualify as "state" officers and employees entitled to additional compensation benefits for service on active duty during the Iraq-Kuwait crisis as members of the California National Guard or a United States Military Reserve organization?

2. If so, what is the amount of the additional compensation benefits provided to the judges and commissioners of the municipal court?

3. What public agency is obligated to pay the additional compensation benefits to the judges and commissioners of the municipal court?
1. Judges and commissioners of the municipal court qualify as "state" officers and employees entitled to additional compensation benefits for service on active duty during the Iraq-Kuwait crisis as members of the California National Guard or a United States Military Reserve organization.

2. The amount of the additional compensation benefits provided to the judges and commissioners of the municipal court is the difference between the amount of the military pay and allowances and the amount which would have been received as a judge or commissioner of the municipal court, including merit raises and benefits that generally would otherwise have been received, commencing on the first calendar day of military leave, except for those who have been in the public service for a period of not less than one year, in which event the additional benefits commence on the thirty-first calendar day of military leave, and extend in either event for a maximum of 180 calendar days of active duty.

3. The State of California is obligated to pay the additional compensation benefits to the judges and commissioners of the municipal court.

Official Citation: 74 Ops.Cal.Atty.Gen. 190
10/08/1991
91-301 Does a good-faith misunderstanding of the law or a good-faith belief that one's actions did not violate the law, even though objectively unreasonable, prevent conviction under those provisions of the Revenue and Taxation Code sections 19405 and 19406 that contain the element of "willfulness"? A good-faith misunderstanding of the law or a good-faith belief that one's actions did not violate the law, even though objectively unreasonable, may not prevent conviction under those provisions of the Revenue and Taxation Code sections 19405 and 19406 that contain the element of "willfulness."

Official Citation: 74 Ops.Cal.Atty.Gen. 220
12/24/1991
91-208 May a regional air pollution control district impose parking fees for the purpose of reducing air pollution? A regional air pollution control district may not impose parking fees for the purpose of reducing air pollution.

Official Citation: 74 Ops.Cal.Atty.Gen. 196
10/31/1991
91-205 May a general law county enter into an agreement with a recognized employee organization to jointly administer a county funded employee health benefits trust? A general law county may enter into an agreement with a recognized employee organization to jointly administer a county funded employee health benefits trust.

Official Citation: 74 Ops.Cal.Atty.Gen. 159
08/22/1991
91-204 1. Do the rights of a surrogate parent extend to consenting for residential placement of the child?

2. Do the rights of a surrogate parent extend to consenting to psychotherapy treatment for the child?

3. May a surrogate parent be appointed before a natural parent of the child is located?

4. May a person designated by the parent to represent the interests of a child for educational and related services sign an individualized education program and consent to residential placement and psychotherapy treatment of the child on behalf of the parent?

5. Would local mental health agencies be subject to liability for performing their services without the permission of the natural parent or legal guardian, if the surrogate parent has consented by signing the assessment or individualized education program?
1. A surrogate parent may consent to the residential placement of a child when it is necessary to permit the child to benefit from a special education program.

2. A surrogate parent may consent to psychotherapy treatment when it is necessary to permit the child to benefit from a special education program.

3. A surrogate parent be appointed before a natural parent is located if the child has been adjudicated a dependent or ward of the juvenile court, the parent is not known or cannot be identified, or reasonable efforts have been made to discover the parent's location.

4. May a person designated by the parent to represent the interests of a child for educational and related services sign an individualized education program and consent to residential placement and psychotherapy treatment of the child on behalf of the parent?

5. Would local mental health agencies be subject to liability for performing their services without the permission of the natural parent or legal guardian, if the surrogate parent has consented by signing the assessment or individualized education program?

Official Citation: 74 Ops.Cal.Atty.Gen. 213
12/24/1991
91-203 Does the doctrine of incompatible public offices preclude a person from holding simultaneously the appointed position of deputy district attorney of San Bernardino County, and the elected position of member of the city council of the City of Ontario in the County of San Bernardino? The law is settled that service on a governmental board by an attorney employed in a local nonelected position does not violate the doctrine of incompatible public offices. Since that issue does not present a substantial question of law for judicial resolution, leave to sue in quo warranto is denied.

Official Citation: 74 Ops.Cal.Atty.Gen. 86
06/04/1991
91-201 May a general law county appoint as county counsel a partner in a private law firm and contract for that firm to assist the county counsel in the performance of is or her duties? A general law county may appoint as county counsel a partner in a private law firm and contract for that firm to assist the county counsel in the performance of is or her duties.

Official Citation: 74 Ops.Cal.Atty.Gen. 155
08/13/1991
91-107 May a county grand jury present an accusation against a municipal court judge pursuant to Government Code section 3060? A county grand jury may not present an accusation against a municipal court judge pursuant to Government Code section 3060.

Official Citation: 74 Ops.Cal.Atty.Gen. 111
07/18/1991
91-106 What is the standard of proof a grand jury must use to indict under the provisions of Penal Code section 939.8? The standard of proof a grand jury must use to indict under the provisions of Penal Code section 939.8 is the same as that used by a magistrate at a preliminary examination: proof constituting reasonable or probable cause to believe that a public offense has been committed and that the defendant is guilty of having committed it.

Official Citation: 74 Ops.Cal.Atty.Gen. 170
09/26/1991
91-105 Is a county required to issue certificates of compliance for 15 lots that were described on a map properly recorded under a predecessor statute to the Subdivision Map Act, as well as local ordinances enacted thereunder, and for fractions of 17 other lots described on the map, which fractions were subsequently created by metes and bounds conveyances by deeds in which none of the lots were identified or recognized? A county is required to issue certificates of compliance for 15 lots that were described on a map properly recorded under a predecessor statute to the Subdivision Map Act, as well as local ordinances enacted thereunder, and for fractions of 17 other lots described on the map, which fractions were subsequently created by metes and bounds conveyances by deeds in which none of the lots were identified or recognized.

Official Citation: 74 Ops.Cal.Atty.Gen. 149
08/13/1991
91-104 May a city contract with a private entity to operate a local detention facility? A city may contract with a private entity to operate a local detention facility.

Official Citation: 74 Ops.Cal.Atty.Gen. 109
07/10/1991
91-103 May a county grand jury limit the district attorney to a period of ten days each month for the presentation of criminal matters to the grand jury? A county grand jury may not limit the district attorney to a period of ten days each month for the presentation of criminal matters to the grand jury.

Official Citation: 74 Ops.Cal.Atty.Gen. 186
10/08/1991
91-102 The Deputy Sheriff's Association of San Diego County, a recognized employee organization as defined in the Meyers-Milias-Brown Act, has requested this office to grant leave to sue the County of San Diego in quo warranto pursuant to section 803 of the California Code of Civil Procedure. Relator contends that section 606 of the San Diego County Charter is invalid and void, and that defendant, acting under color thereof, has usurped, intruded into, and unlawfully held and exercised powers not belonging to it. It is concluded that leave to sue should be denied.

Official Citation: 74 Ops.Cal.Atty.Gen. 77
05/08/1991
91-101 Is the position of Fire Division Chief of the City of Ontario a public office? If so, is that office incompatible with membership on the city council of the City of Ontario? The position of Fire Division Chief of the City of Ontario is not a public office; consequently, no substantial issue of law is presented as to whether that position is incompatible with membership on the City Council of the City of Ontario. Accordingly, leave to sue in quo warranto is denied.

Official Citation: 74 Ops.Cal.Atty.Gen. 82
06/04/1991
90-943 May a charter city prohibit former and retired city employees from serving on the city's civil service commission without violating the equal protection, due process, and freedom of expression provisions of the California Constitution? A charter city may prohibit former and retired city employees from serving on the city's civil service commission without violating the equal protection, due process, and freedom of expression provisions of the California Constitution.

Official Citation: 74 Ops.Cal.Atty.Gen. 181
10/08/1991
90-942 Beverly Eastland, John E. Weiks, and Palomar Pomerado Health System, a local hospital district organized under The Local Hospital District Law ("relators"), have requested this office to grant leave to sue Nancy H. Scofield "(defendant") in quo warranto pursuant to section 803 of the California Code of Civil Procedure. Relators contend that defendant's election to public ofice, to wit: member of the board of directors, Palomar Pomerado Health System, was invalid. It is concluded that leave to sue should be denied.

Official Citation: 74 Ops.Cal.Atty.Gen. 31
03/06/1991
90-938 May a mobilehome park owner, by means of rental agreement, rule, or regulation, prohibit the display by tenants of political signs in the windows of mobilehomes? A mobilehome park owner may not, by means of rental agreement, rule, or regulation, prohibit the display by tenants of political signs in the windows of mobilehomes.

Official Citation: 74 Ops.Cal.Atty.Gen. 122
08/06/1991
90-936 Does the Director of Food and Agriculture have the authority to prohibit market milk producers and market mild handlers from contracting for the sale and purchase of bulk market milk at prices which are above the minimum prices established by the Director through stabilization and marketing plans? The Director of Food and Agriculture does not have the authority to prohibit market milk producers and market mild handlers from contracting for the sale and purchase of bulk market milk at prices which are above the minimum prices established by the Director through stabilization and marketing plans.

Official Citation: 74 Ops.Cal.Atty.Gen. 63
05/07/1991
90-934 1. Where a city of county has elected pursuant to Government Code section 66499 to accept a surety bond to secure the faithful performance of an act or agreement of a subdivider (such as the construction of necessary public improvements), does the city or county have absolute discretion to accept or reject a tendered bond?

2. If the answer to question one is in the affirmative, may a city or county establish financial size criteria for insurers with respect to performance bonds? If so may it adopt as its financial size criteria that established by a non-governmental insurance rating service or that established by the federal government prepared by the United States Treasury Department as acceptable security on federal contracts?

3. May a city or county adopt a policy of not accepting performance bonds from a particular insurer where that insurer has resisted payment on an outstanding claim in favor of that local agency without provision for inquiry into the reasons it resisted payment?

4. Does the hold in Milo Equipment Corp. v. Elsinore Valley Municipal Water District (1988) 205 Cal.App.3d 1282 apply to performance bonds filed under the provisions of Government Code section 66499?
1. Where a city of county has elected pursuant to Government Code section 66499 to accept a surety bond to secure the faithful performance of an act or agreement of a subdivider (such as the construction of necessary public improvements), a city or county has discretion to accept or reject a tendered bond absent fraud, arbitrary action or a clear abuse of discretion.

2. In determining whether to accept or reject surety bonds tendered pursuant to Government Code section 6649 a city or county may it adopt as its financial size criteria for insurers with respect to performance bonds. In doing so it may adopt financial size criteria established by a non-governmental insurance rating service or that established by the federal government prepared by the United States Treasury Department as acceptable security on federal contracts.

3. A city or county may not adopt a policy of not accepting performance bonds from a particular insurer where that insurer has resisted payment on an outstanding claim in favor of that local agency.

4. The broad holding in Milo Equipment Corp. v. Elsinore Valley Municipal Water District (1988) 205 Cal.App.3d 1282, that the Bond and Undertaking Law is applicable to all bonds given as security pursuant to any state statute, is applicable to bonds filed under the provisions of Government Code section 66499 except to the extent the statute is inconsistent therewith.

Official Citation: 74 Ops.Cal.Atty.Gen. 89
06/06/1991
90-932 Is the personnel commission of a school district authorized to provide a group medical benefits plan for its former members? The personnel commission of a school district is not authorized to provide a group medical benefits plan for its former members.

Official Citation: 74 Ops.Cal.Atty.Gen. 167
09/04/1991
90-928 Is the San Diego City "transient transportation tax" a sales or use tax or is it a substantially different tax for purposes of administering local sales and use tax ordinances? The San Diego City "transient transportation tax" is a use tax for purposes of administering local sales and use tax ordinances.

Official Citation: 74 Ops.Cal.Atty.Gen. 96
06/12/1991
90-926 Under California law is it legal for anyone other than a licensed physician may perform an abortion? Under California law only a licensed physician may perform an abortion.

Official Citation: 74 Ops.Cal.Atty.Gen. 101
06/25/1991
90-925 Glenn Mondo ("relator") has requested this office to grant leave to sue Richards L. Norton ("defendant") in quo warranto pursuant to section 803 of the California Code of Civil Procedure. Relator contends that defendant is unlawfully occupying a public office, to wit: member of the city council, City of Santa Ana. It is concluded that leave to sue should be denied.

Official Citation: 74 Ops.Cal.Atty.Gen. 26
02/26/1991
90-923 May the Bureau of Automotive Repair direct licensed smog check stations to deny a certificate of compliance to the owner of a vehicle if the vehicle's emission control system contains an aftermarket component that has not been approved for installation on the vehicle by the State Air Resources Board under Vehicle Code section 27156? The Bureau of Automotive Repair may direct licensed smog check stations to deny a certificate of compliance to the owner of a vehicle if the vehicle's emission control system contains an aftermarket component that has not been approved for installation on the vehicle by the State Air Resources Board under Vehicle Code section 27156.

Official Citation: 74 Ops.Cal.Atty.Gen. 127
08/07/1991
90-914 Is the jurisdiction of a county airport land use commission limited by county boundaries? The jurisdiction of a county airport land use commission is limited by county boundaries.

Official Citation: 74 Ops.Cal.Atty.Gen. 58
05/07/1991
90-911 Is a county jail required to receive an arrested person from a city police officer if (1) the arrestee is injured and needs medical attention, or (2) the arrestee is injured and needs medical attention but refuses to be treated? A county jail is required to receive an arrested person from a city police officer if (1) the arrestee is injured and needs medical attention, or (2) the arrestee is injured and needs medical attention but refuses to be treated.

Official Citation: 74 Ops.Cal.Atty.Gen. 21
01/31/1991
90-908 Would imposition of an in lieu fee for general governmental services upon the California Public Employees' Retirement System based upon its ownership of real property be constitutional? Imposition of an in lieu fee for general governmental services upon the California Public Employees' Retirement System based upon its ownership of real property would be unconstitutional.

Official Citation: 74 Ops.Cal.Atty.Gen. 6
01/03/1991
90-807 If a parcel of land with a residence is used to cultivate marijuana for sale, but there is no evidence concerning where the marijuana is sold, is the property subject forfeiture? If a parcel of land with a residence is used to cultivate marijuana for sale, but there is no evidence concerning where the marijuana is sold, is the property would not be subject forfeiture without proof of additional evidence.

Official Citation: 74 Ops.Cal.Atty.Gen. 70
05/08/1991
90-806 Assuming that a suspect under citizen's arrest by a private security guard for shoplifting waives the right to be brought before a magistrate or delivered to a peace officer, may the security guard issue a citation to the suspect pursuant to a peace officer's telephonic directive or summons for aid and assistance? A private security guard is not authorized to issue a citation to a suspect under citizen's arrest for shoplifting.

Official Citation: 74 Ops.Cal.Atty.Gen. 37
03/26/1991
90-804 May the Governor appoint as the Adjutant General an officer who is presently on active duty in the United States Army and who possesses the requisite rank and command or staff experience but who has never been a member of the National Guard of California or that of any other state? The Governor may not appoint as the Adjutant General an officer who is presently on active duty in the United States Army and who possesses the requisite rank and command or staff experience but who has never been a member of the National Guard of California or that of any other state.

Official Citation: 74 Ops.Cal.Atty.Gen. 53
05/02/1991
90-802 1. May the district attorney submit a statement in aggravation at the sentencing phase of a misdemeanor case?

2. May a statement in aggravation contain references to matters outside the record of the case and contain evidence other than by way of testimony?
1. At the discretion of the trial court, the district attorney may submit a statement in aggravation at the sentencing phase of a misdemeanor case, provided that the statement consists of information which could have been included in a probation report.

2. Such a statement in aggravation may contain references to matters outside the record of the case and may contain evidence other than by way of testimony.

Official Citation: 74 Ops.Cal.Atty.Gen. 32
03/20/1991
90-701 1. When the Board of Governors of the California Community Colleges distributes funds to community college districts for student matriculation services, are such distributions subject to approval by the Department of General Services?

2. May the Board of Governors of the California Community Colleges distribute funds to community college districts by grants without approval by the Department of General Services, where the primary purpose of the funding is to assist the community college districts?
1. When the Board of Governors of the California Community Colleges distributes funds to community college districts for student matriculation services, such distributions are not subject to approval by the Department of General Services.

2. The Board of Governors of the California Community Colleges may distribute funds to community college districts by grants without approval by the Department of General Services, where the primary purpose of the funding is to assist the community college districts.

Official Citation: 74 Ops.Cal.Atty.Gen. 10
01/03/1991
90-504 Do the requirements for utilization of minority and women's business enterprises in work performed under construction contracts awarded by state agencies apply to contracts for the construction of school facilities under the Leroy F. Greene State School Building Lease-Purchase Law? The requirements for utilization of minority and women's business enterprises in work performed under construction contracts awarded by state agencies do not apply to contracts for the construction of school facilities under the Leroy F. Greene State School Building Lease-Purchase Law.

Official Citation: 74 Ops.Cal.Atty.Gen. 16
01/31/1991
90-305 Does Health and Safety Code section 18941.5, subdivision (a), apply the building standards as they appear in the model codes that are named in that subdivision, or as they have been amended and appear in the California Building Standards Code, to all occupancies throughout the state? Health and Safety Code section 18941.5, subdivision (a), applies the building standards of the model codes named in the subdivision as they have been amended and appear in the California Building Standards Code to all occupancies throughout the state.

Official Citation: 74 Ops.Cal.Atty.Gen. 1
01/03/1991
89-1203 May the city council of a charter city require that all discussions between elected city officials and city employees or representatives of city employee organizations concerning matters within the scope of representation during the meet and confer process be held at a public meeting of the city council except for those held between the duly designated representatives? The city council of a charter city may not require that all discussions between elected city officials and city employees or representatives of city employee organizations concerning matters within the scope of representation during the meet and confer process be held at a public meeting of the city council except for those held between the duly designated representatives.

Official Citation: 74 Ops.Cal.Atty.Gen. 42
04/11/1991