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COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELL\ TE DISTRICT, DIVISION FOUR

Case No. A l l 4956 BAY AREA CELLULAR TELEPHONE COMPANY doing business as AT&T WIRELESS SERVICES; GTE MOBILNET QF CALIFORNIA LIMITED PARTNERSHIP doing business as VERIZON WIRELESS: CINGULAR WIRELESS LLC: SJL V ANO MENDOZA; and WALID ACHIKZAI,

(Alameda Superior Court No. HG04-16 1 366)

· Plaintiffs/Respondents,

vs.

CITY OF UNION CITY,

Defendants/Appellants.

APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF

THE CALIFORl\'IA STATE ASSOCIATION OF COUNTIES, LEAGUE OF CALIFORNIA CITIES AND

THE CITY AND COUNTY OF SAN FRANCISCO

The Honorable Winifred Y . Smith

I D JUN 2 �' ?nn" u i-Ll,.(

Appeal from the Judgment of the Superior Court of the State of California for the County of Alameda

.APPLICATION & AMICUS CURIAE BRIEF

CASE NO. All4956

DENNIS J. HERRERA, State Bar #139669 City Attorney BUCK DEL VENTHAL, State Bar #045007 Chief Government Team Deputy JULIE K. VAN NOSTERN, State Bar #103579 Chief Tax Team Deputy DANNY CHOU, State Bar #180240 Chief of Appellate Litigation JEAN H. ALEXANDER, State Bar #053676 Deputy City Attorney 1 Dr. Carlton B . Goodlett Place, Room 234 San Francisco, California 941 02-4608 Telephone: (41 5) 554-4631 Facsimile: (41 5) 554-4745 E-Mail: jean.alexander@sfgov.org

Attorneys for Amici Curiae CALIFORNIA STATE ASSOCIATION OF COUNTIES, LEAGUE OF CALIFORNIA CITIES AND THE CITY AND COUNTY OF SAN FRANCISCO

APPLICATION & AMICUS CURIAE BRIEF

CASE NO. All4956

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . ... . .. . . . . .. . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . ...... . . . . . . . . . .. . . . . . i i

APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF . . . . ... . .. . . . . . ..... . . . . . . .. .. . . . . . .. . . ... . . . . . . . . . ... . . . . . . . . .. . . ..... . . .. . . . . . . . . . . . . . . . .. ... . . . . . .. . . ... . 1

INTRODUCTION ... . . . . . ........ . . . .. . . . . . . . .... . .. . . . . . .. . . . . . . . . . . . . . . . .. . . . . . .. . . . . ... . . . . . . . . . ....... 3

AN EFFECTIVE EMERGENCY RESPONSE SYSTEM REQUIRES FLEXIBILITY IN LOCAL FUNDING . . . . . . . . . . . . . . . . . .. .. . .. .. . . .. . ..... 6

I . THE OBJECTIVE OF THE WARREN ACT, TO ESTABLISH A RELIABLE STATEWIDE 911 SYSTEM, WILL LIKELY BE THWARTED IF CITIES MAY NOT CHARGE A FEE ......... . . ..... . . . . .. . ... ..... . . . . . 6

II. SAN FRANCISCO'S EXPERIENCE PROVIDING EMERGENCY RESPONSE SERVICES IS AN EXAMPLE OF THE NEED FOR FLEXIBLE FUNDING . . . . . . . . .. . . . .......... . . . .. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. . . . .. . . . 9

NEITHER STATE LAW NOR THE CONSTITUTION BAR CALIFORNIA MUNICIPALITIES FROM IMPOSING A FEE FOR STATE-MANDATED GOVERNMENTAL SERVICES THAT BENEFIT THE PUBLIC, AS LONG AS THE FEE PAYER RECEIVES A BENEFIT THAT IS REASONABLY RELATED TO THE AMOUNT OF THE FEE . . . . ........ . . . . . . ...... . .. . . . . . . . . . . . . . . . . .... . . . . . . . . . . . ..... . . . . . 1 2

I . LOCAL AGENCIES MAY FUND SERVICES THAT PROVIDE "PUBLIC NECESSITIES" BY CHARGING A FEE . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ..... . . . . . . . . .. 1 3

I I . CALIFORNIA LAW RECOGNIZES THAT FEES ARE AN IMPORTANT MEANS FOR LOCAL JURISDICTIONS TO FUND TH�IR PERFORMANCE OF STATE-MANDATED GOVERNMENT PROGRAMS SUCH AS "91 1 " EMERGENCY RESPONSE SERVICES . . . . . . . .. .. . . . .. . . . . ..... . ... 1 6

STATE LAW MANDATES ONLY "BASIC" 911 SERVICE. THUS, EVEN IF A CHARGE FOR STATE-MANDATED SERVICES MUST BE A TAX THAT MANDATE DOES NOT AFFECT THE ABILITY OF A LOCAL AGENCY TO IMPOSE A FEE FOR "ENHANCED" 911 SERVICE . . . . . . .... . . . . . . . . . .. . .. . .. . . . . . . . . . . . . . . . . . . . . . .. 1 9

CONCLUSION ... . . . .. . . ... . .. . . . ... . . . . . . . . . . . ... . . . ........ .. . . . . .... . . . .. . . . .. . . . ..... . . . . . . .......... . 22

CERTIFICATE OF COMPLIANCE . . . . . . . ...... . . . . . . . . . . . . . . . . . . .. . .. . . . . . . .. . . . ..... . . . . . .. 24

APPLICATION & AMICUS CURIAE BRIEF

CASE NO. Al14956

TABLE OF AUTHORITIES

State Cases

City of Dublin v. County of Alameda ( 1 993) 1 4 Cai.App.4th 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ....... ......... 1 3

City of Sacramento v. State of California (1 990) 50 Ca1.3d 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................... 1 7

Connell v. Superior Court of Sac1:amento County (1997) 59 Cai.App.4th 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . .. .. ................... 1 8

County of Fresno v. State of California (1 991) 53 Cal.3d 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... 1 7, 1 8

Kaufinan & Broad Central Valley v. City of Modesto (1 994) 25 Cai.App.4th 1 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . .. 1 4

Keller v. Chowchilla Water District (2000) 80 Cai.App.4th l 006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . ... .. 1 5

Kern County Farm Bureau v. County of kern (1993) 1 9 Cai.App.4th 1 41 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 1 3, 1 5

People ex rel. Attorney Gen. v. Naglee (1 850) l Cal. 232 .................. . . .......... . . . .. . . . . . . . .............. . . ...... . . . . ................. 15

Richmond v. Shasta Community Service District (2004) 32 Cal.4th 409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . ............... ...... 1 4

Russ Building Partnership v. City and County of San Francisco (1987) 1 99 Cai.App.3d 1 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 1 3, 1 5, 1 8

APPLICATION & AMICUS CURIAE BRIEF 11 CASE NO. A114956

State Statutes & Codes Government Code

§ 17556 ............................................................................................... 16, 18

§ 17556, subd. (d) .................................................................................... 18 § 50076 ............................................................................................... 13, 14

§ 50078 ..................................................................................................... 15

§ 53100 .................................................................................................. .4, 6 § 53107 ................................................................................................ .4, 19

§ 53109 ..................................................................................................... 19

§53118 ....................................................................................................... 6 § 53978 ............................................................................................... 13, 14

§ 53978, subd. (f) ................. . . . . . . . ............................................................. 14

Health & Safety Code § 5471 ....................................................................................................... 15

Revenue & Taxations Code § 41002 et seq . ......................... . . . ............................... . . .............................. 6 §41136 ....................................................................................................... 6 §4114 ....................................................................................................... 17

§ 41141 ..................................................................................................... 17

Stats. 1972, ch. 1005 ...................................................................................... 6

Streets & Highways Code § 22500 et seq . ........................................................................................ . 15 § 5000 et seq . ................... .......................... .............................................. 15

Union City Statutes, Codes & Ordinances Union City Municipal Code

§ 7.20.020A .............................................................................................. 19

Rules

California Rules of Court 8.200 .................................................................. .... . . . . . . . . ............................. 1

Constitutional Provisions

Constitution Art. XIII B , Sec. 6 ........................................................................ 16, 17,18

Constitution Article XIII A, § 4 .................................................................................... 13

APPLICATION & AMICUS CURIAE BRIEF 111 CASE NO. A114956

Other Authorities

Legis . Counsel's Dig., Assem. Bil l No. 41 6 (1 975-1976 Reg. Sess.), Summary Dig., p. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6

Other References

NENA Glossary "Automated Location Identification (ALI) Queries" at p. 1 1 . . . . . . . . . . . . . . . . . . 21 "Automated Number Identification," at p. 1 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 "Call back," at p. 12 ......... . . . . . . . . . . . . . . . . . . . . . . . . ............... . . .. . . . . .... ..................... 21 "Enhanced 91 1 ," at p. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 "Fixed Transfer," at p . 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 "Selective Transfer," at p. 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 "Selective Routing," at p. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Senate Public Utilities & Communications Committee (June 1 5, 1 972) analysis of AB 51 5 (Warren) as amended 5/1 5/72, p. 3 .. 6

Sward, 1 OJ California- Legacy of Horror, San Francisco Chronicle (June 30, 1 998) at page A-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1

APPLICATION & AMICUS CURIAE BRIEF lV CASE NO. A114956

APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF '

Under Rule 8.200 of the California Rules of Court, Amici Curiae the

California State Association of Counties, League of California Cities, and

the City and County of San Francisco ("Amici") respectfully request

permission to file the accompanying Amici Curiae brief in support of

defendant/appellant the City of Union City (hereinafter the "City"). Amici

have a substantial interest in the outcome of this appeal, in which the Court

must address a fundamental question oflocal governance: Whether a duly

elected local legislative body may impose a fee to cover the cost of

operating and maintaining access to enhanced emergency communication

servrces.

The California State Association of Counties ("CSAC") i s a non

profit corporation. The membership consists of the fifty-eight California

counties . CSAC sponsors a Litigation Coordination Program, which i s

administered by the County Counsel's Association of California and i s

overseen by the Association's Litigation Overview Committee, comprised

of County Counsels throughout the state. The Litigation Overview

Committee monitors litigation of concern to counties statewide and has

determined that this case involves a matter affecting all California counties.

The League of California Cities is an association of 478 California

cities dedicated to protecting and restoring local control to provide for the

public health, safety, and welfare of their residents, and to enhance the

quality of life for all Californians. The League is advised by its Legal

Advocacy Committee, which is comprised of24 city attorneys from all

regions of the State. The Committee monitors litigation of concern to

municipalities, and identifies those cases that are of statewide-or

APPLICATION & AMICUS CURIAE BRIEF

CASE :"0. AI 14956

nationwide--significance. The Committee has identified this case as being

of such significance.

The City and County of San Francisco ("San Francisco") is a

California Charter City and a member of the League of Californi a Cities.

Since 1 993, San Francisco has imposed an emergency response fee, similar

to the fee that has been challenged in this ease, on every person who

subscribes to local telephone service within the City and County of San

Francisco.

Counsel for Amici has reviewed the briefs submitted to the Court

and i s familiar with the i ssues involved and the scope of their presentation.

Amici respectfully submit that a need exists for additional argument and

briefing regarding the i s sues in this case. The proposed Amicus Curiae

brief attached hereto addresses issues not specifically raised in the parties'

briefs or in the briefs of the other amici . In particular, Amici argue that

neither the California Constitution nor state law prohibits legis lative bodies

in local jurisdictions from imposing a reasonable fee to support state

mandated services. Union City's 9 1 1 communications service, like that in

many jurisdictions, exceeds state-mandated 9 1 1 service levels . That

enhanced service provides a s ignificant benefit to telephone subscribers.

This brief will argue that a city may imp'ose a fee on telephone

subscribers that recovers their share of the costs of operating the emergency

communications and response dispatch system. In addition, sound

government policy requires that legislative bodies of local governments

have the flexibility to impose a reasonable fee on telephone subscribers for

24-hour access to emergency response services. lf local jurisdictions lack

this flexibility, local emergency response systems will be forced to compete

annually with other local programs for limited general-fund revenue. The

APPLICATION & AMICUS CURIAE BRIEF 2 CASE NO. A114956

quality of local 9 1 1 service will likely deteriorate and become inconsistent

throughout the state.

The superior court held that Union City's emergency response fee i s

a special tax because fee-payers do not receive any special benefit not

received by the general public. This decision i s factually incorrect, legally

erroneous, and, if allowed to stand, will have a broad negative impact on

the State's emergency services network. CSAC, the League, and the City

and County of San Francisco therefore request permission to file this

amicus curiae brief.

INTRODUCTlON

This brief illuminates the critical role that cities play in providing

emergency response services and the consequences of compromising a

secure source of funding for those services. Because Petitioner has

adequately argued that the Union City Emergency Communication System

Response Fee i s a fee, and not a special tax, this brief does not repeat those

arguments. Rather, Amici argue that ( 1 ) cities must have the flexibility to

fund 9 1 1 emergency response systems, through fees and general-fund

revenue, to prevent the very inconsistencies in quality among local

jurisdictions' emergency response that the Warren-9 1 1-Emergency

Assistance Act ("Warren Act") sought to eliminate; and (2) no

constitutional or statutory provision forbids local jurisdictions from

imposing a fee in exchange for a state-mandated service that provides a

public necessity, such as emergency 9 1 1 response services, much Jess

enhanced 9 1 1 communications services such as those paid for by Union

City's 9 1 1 Fee. Indeed case Jaw has held that the Constitution allows the

Legislature to discharge its obligation with regard to funding of local

APPLICATIOl\ & AMICUS CURIAE BRIEF 3 CASE NO. All4956

mandates by giving local jurisdictions the authority to charge fees for the

state-mandated services.

Emergency response systems before the Warren Act suffered from

unacceptable inconsistencies and delays in service. Before implementation

of a uniform 9 1 1 system, there were "thousands of different emergency

numbers throughout the state" and a lack of coordination among

jurisdictions. (Gov. Code, § 5 3 1 00.) Moreover, because telephone

exchanges crossed political boundaries, emergency response agencies had

trouble collaborating over fielding and responding to emergency calls.

These problems jeopardized lives and demanded a statewi de uniform

solution. To address these i ssues, the Warren Act required each jurisdiction

to implement a basic emergency response system that automatically

connected a telephone caller dialing 9-1 - 1 to an established and appropriate

call taker. (Gov. Code, § 5 3 1 07.) The simplicity of the Act led to its initial

success .

As telecommunications have become more complex i n the ensuing

decades, however, the Act's minimum requirements no longer suffice to

provide critical emergency response services . Local governments have

filled this void by financing and implementing enhanced services.

Enhanced emergency response services enable cities, for example, to: ( 1 )

route emergency responders to those i n need when problems arise, (2) call

back the caller where the call is disconnected and (3) locate the caller

through advanced navigational systems where the caller unable to provide

this information. These features save lives. The Warren Act mandates

none of them, and the state provides no funding for most of them. Local

jurisdictions are responsible for funding the costs of these enhanced

systems.

APPLICATION & AMICUS CURIAE BRIEF 4 CASE NO. Al 14956

Enhanced systems require significant funds to cover necessary '

capital investments and operational expenses. Local jurisdictions must

invest in technology to ensure that their emergency response systems are

compatible with similar systems throughout the state and the nation. Cities

must train emergency response personnel to use effectively an array of

networks and to provide compassionate scnice under stressful conditions.

And, of course, local jurisdictions must maintain these systems on an on

going basis. Fees. like that at issue in this case, give cities a security of

revenue necessary to avoid the problems tl1at plagued the pre-Warren era.

If this Court holds that the 91 1 fee is a tax, thereby forcing local

jurisdictions to finance emergency response systems through general-fund

revenue, two negative consequences will likely occur. First, overall cuts in

funding for emergency response systems will result as this service

competes with other government services for funds. Second, it will

introduce uncertainty into the budgeting process for 911 services by

subjecting funding to the gauntlet of an election and by divorcing revenues

for the service from those who burden it and should pay their proportionate

share of the costs. The end result will be less money for 911 sen•ices. As

certain jurisdictions fail to make necessary investments, sen•ices within

those jurisdictions will lag, inconsistencies among jurisdictions will

abound, and coordination on a statewide level will suffer. In today's world,

cities are the first responders to widespread disasters. If their ability to

finance critical emergency response systems is hamstrung, the quality of

that response will be compromised and people may die.

APPLJCATIO'J & AMICUS CURIAE BRIEF '

CASE l\0. AI 14956

AN EFFECTIVE D1ERGENCY RESPONSE SYSTEM REQUIRES FLEXIBILITY IN LOCAL FUNDING

I. THE OBJECTIVE OF THE WARREN ACT, TO ESTABLISH A RELIABLE STATEWIDE 911 SYSTE:'\1, WILL LlKEL Y BE THWARTED IF CITIES l\1A Y NOT CHARGE A FEE.

In 1 972, the Wancn Act established the number "91 1 " as "a single,

primary three-digit emergency number through which emergency services

can be quickly and efficiently obtained . . . " (Gov. Code, § 5 3 1 00, added by

Stats. 1 972, ch. 1 005.) The Wanen Act's main purpose was to decrease the

time that it took to obtain emergency assistance and to eliminate

jurisdictional conflicts by creating a statewide network of services. (See

Gov. Code, § 53 1 1 8.)

To accomplish this purpose, the Wanen Act required local

jurisdictions to provide a basic connection to emergency response services

by use of the telephone number "91 1 ." Cities and counties were unclear

about the financial burden that the Wanen Act placed on them and

expressed their concem. (See Senate Public Utilities & Communications

Committee, (June 1 5 , 1 972) analysis of AB 5 1 5 (Wanen) as amended

5/ 1 5/72, p. 3) As a result, in 1 976, the Legislature enacted the Emergency

Telephone Users Surcharge Law (hereinafter the "Surcharge Act") to

address in pm1 the i ssue of funding for these l ocal 9 1 1 systems by I

providing subvention, or financial assistance, to local jurisdictions. (Rev.

& Tax. Code, § 4 1 002 et seq.) Ultimately, the Surcharge Act provided only

limited funds to local jurisdictions. (Rev. & Tax. Code, § 4 1 1 36.) Given

this limited assistance under the Surcharge Act, the Legislature did not

preempt the field as it pertains to funding for local 9 1 1 systems. In

particular. it did not prohibit local gO\ cmments from charging a reasonable

fcc for 9 1 1 services.

APPLICATION & A\11CLJS CURIAE BRIEF 6 CASE NO. AJ149o6

Thirty years after the passage of the Warren Act and Surcharge Act,

Californians have access to an effective and reliable emergency response

system throughout the state. Flexibility in funding at the local level,

including the ability to levy fees to fund and improve 911 systems has

contributed significantly to this success. Indeed, operational expenses

associated with an effective 911 system are significant. Like Union City,

San Francisco's elective body chose to fund its enhanced 911 system with a

combination of fee and general-fund revenues. The total budget for the San

Francisco Department of Emergency Management (DEM) related to 911

Operations for fiscal year 2006-2007 i s S 52.28 million. In addition to the

San Francisco budget, the State supports 911 operations, with direct

payment of venders and reimbursement of the City. In FY 2006-07 state

funding is approximately $1.4 million, only 2 . 5 percent of total operation

costs, and i s restricted lO covering the cost of telephone systems. Local 91 1

fees and taxes pay 97.5 percent of the total cost. (Consolidated Budget and

Annual Appropriation Ordinance, Fiscal Year ending June 30, 2007, File

No. 060729, Ord. No. 202-06.) The City may not use State funds for

salaries, computer systems, telecommunications devices for the deaf

(TDD), mapping or radio dispatch costs. As a result of these restrictions on I

state funds local agencies must incur additionaJ'costs to operate the Public

Safety Answering Point (PSAP). For example, upgrading the telephone

system without upgrading the radio system provides no benefit. And the

funding problem does not end with operational expenses. Cities must also

upgrade their systems periodically to keep the technology current and

compatible with systems used by local agencies, as well as state and

national entities. They must also continually train emergency response

personnel to use a broad anay of interconnected networks effectively and to

APPLICATION & A\11Cl'S CURIAE BRIEF ; CASE NO. A114956

provide humane services in stressful circumstances. Local govemments

must fund all of these costs with �o assistance from tl1e State.

Because of the large amount of money required to provide and

maintain an effective 9 1 1 system and the disastrous consequences if that

money i s reduced or unaYailable, funding must be secure. Fees levied on

individuals who subscribe to telephone services within the jurisdiction

provide such a source. Experts in the field have noted that the lack of a

secure funding source will imperil 9 1 1 services.

"Maintaining current funding levels and providing funding for the

development of the next generation 9- 1 - 1 system i s one of the most

important i ssues for 9- 1 - 1 today. The public safety community is extremely

concerned by the immediate and growing impact of changes in the

communications landscape that are leading to a loss of conventional 9-1 - 1

revenue through 9- l - l fees and surcharges. " See the testimony of Jason

Barbour, ENP on behalf of the National Emergency Number Association

(NEN"A), before the United States Senate Committee On Commerce,

Science, and Transportation, Voice Over Internet Protocol (VOJP) and the

Future of 9-l-1 Services [discussing the reduction of funding for 9 1 1

service due to reduced telephone user fee base caused by increased use of

internet-based substitutes for telephone services]. ( I I 0 Con g. 1 st Sess.

April 1 0, 2007)

Without a stable source of revenue, local governments will be forced

to use general-fund revenues to pay for their 9 1 1 systems and choose

between maintaining the quality and reliability of their 9 1 1 systems or

funding other highly needed programs. ln making this choice, some

jurisdictions may reduce costs by failing to hire and train qualified staff, to

perfon11 routine maintenance, or to establish back-up systems should

APPLICATION & AMICUS CL'RlAE BRIEF 8 CASE NO. All4956

primary 9 1 1 circuits fail in an emergency. General fund revenues may stay

constant while phone service especially to mobile phones will grow. The

likely result will be a significant disparity in the quality of 9 1 1 service

among different jurisdictions and a decrease in the overall quality of that

service statewide as the \Vanen Act's 9 1 1 system i s only as strong as its

weakest link.

Indeed, the efficacy of the State of California's emergency response

system depends on the availability of flexible funding options. It is critical

to the maintenance of quality statewide emergency response that cities have

every funding option m·ailable to them- including reasonable user fees,

general fund revenue, state subvention, grants and reimbursements.

Without this flexibility, local governments like Union City will not be able

to provide effective 9 1 1 service.

II. SAN FRANC1SCO'S EXPER1ENCE PROVlDING EMERGENCY RESPONSE SERVICES IS AN EXAMPLE OF THE NEED FOR FLEXIBLE FUNDING.

Prior to 1 993, San Francisco had established a basic Wanen Act

compliant 9 1 1 emergency response system. That system, however, had

major shortcomings and needed significant enhancements to be effective.

That system incorporated three separate dispatch centers operated by three '

separate City Departments, the San Francisco Police Department, the San

Francisco Fire Department and the San Francisco Public Health

Department's Paramedic Division. Each department also had its own radio

dispatch system, which was unable to communicate with the other two

emergency response agencies. All emergency calls went to the Police

Department dispatch center, which was the Public Safety Answering Point

for the City. The Police Depm1ment dispatcher processed the calls, and

then transfcned the fire and Emergency Medical Technician (EMT) calls to

APPLICATION & AMICUS Cl:RIAE BRIEF 9 CASE NO. All4956

a secondary response center. Because there was no ability to transfer data '

regarding the call to the fire or EMT call-taker. the fire or EMT call-taker

needed to solicit call information a second time and enter it into its separate

system.

The Police Department's 9 1 1 system consisted of an IBM mainframe '

computer, which the Department shared with other City agencies. Other

users often clogged the system, making it inefficient and undependable in

an emergency. The system's Computer Assisted Dispatch (CAD) software

was obsolete, expensive and difficult to maintain. It Jacked critical

safeguards, such as a fail-safe feature that forces a call-taker to take action

\Vhen a priority call has been pending for more than a specified amount of

time. Neither the CAD nor the emergency communications radio systems

had an Unintemrptible Power Supply (UPS) to ensure operation during a

power failure. In addition, problems existed between field units and the

dispatch center in the assignment of radio frequencies at the scene of a

major incident. The Police Department radio system also could not

communicate with the Fire Department radio system.

San Francisco's basic 9 1 1 system proved its deficiencies during one

of the most tragic emergencies in the City's history. On July 1 , 1 993, a

disgruntled client of the law finn Pettit Mm1in entered their offices on the

34th floor of the 1 0 1 California Street Office building and opened fire with

a gun, killing eight people and wounding six before killing himself. The

San Francisco PSAP first received an emergency call at 2 :56 p.m. Due to

computer system failures and human enoL however, police were not

dispatched to the scene for nearly six minutes. M oreover, because of poor

communication with 9 1 1 dispatch, once they arrived at the scene,

emergency responders could not locate victims or ascertain how many

APPLICATION & AMICl:S Cl:RlAE BRIEF ] 0 CASE NO. All4956

gunmen were in the building. That these responders' hand-held radios

could not transmit messages through the building's concrete walls further

frustrated rescue attempts. Chaos reigned inside and outside of the

building. In all, forty-two minutes lapsed between the first call to 9 1 1 and

the time that emergency response personnel reached the shooting victims.

(Sward, 101 California- Legacy of Horror, San Francisco Chronic le (June

30, 1 998) at page A- 1 .

As a result, in 1 993. the City began a major upgrade of its 9 1 1

system. In order to finance the cost of the project, voters approved

participation bonds to build a consolidated, seismically safe, state of the

industry, 9 1 1 Communications System facility. The consolidated call

center can automatically direct calls to the appropriate response agency, and

to communicate data by way of computer tenninals installed in emergency

vehicles. The City also implemented a ten-year plan to keep the system up

to-date. Recognizing the need for a secure source of funding to repay the

bonds and to defray the costs of operating and maintaining the new facility

and upgraded equipment, the City adopted a 9 1 1 fee. Without that fee, the

City would have been unable to maintain or operate its enhanced 9 1 1

system. San Francisco's example shows that flexibility in funding options '

produces results.

State law requires cities and counties to maintain a 9 1 1 system that

responds to the unique needs of their communities. A large but necessary

financial burden accompanies that obligation that local jurisdictions must

meet in light of limited state funds. In order to have a funding stream that

reflects the number and nature of the calls for emergency response and i s

not subject to change from year to year, cities have used a combination of

fees, general-fund revenue and other available sources. As the Amici

APPLICATION & AMICLS Cl'RIAE BRIEF 1 1 CASE NO. All4956

demonstrate below, this flexibility is not only critical on an operational '

level but also fully authorized by state law.

NEITHER STATE LAW NOR THE CONSTITUTION BAR CALIFORNIA MUNICIPALITIES FROM IMPOSING A FEE FOR

STATE-:\1ANDATED GOVE�'\'MENTAL SERVICES THAT BENEFIT THE PUBLIC, AS LONG AS THE FEE PAYER

RECEIVES A BE::'\EFIT THAT IS REASONABLY RELATED TO THE AMOUNT OF THE FEE.

Respondents argue that Union City's fee for 91 1 services is a tax and

not a fee because money from the 9 1 1 fee funds state-mandated public

saicty programs that benefit the public at large. (Response, p. 1 .)

Respondents assume that in addition to mandating local agencies to provide

emergency communications services, the Legislature also forbade the use

of a local fee to fund all or part of the service or, in the alternative, that the

91 1 fee is a tax and therefore subject to voter approval.

Respondents also argue that 9 1 1 fee payers receive no benefit

beyond that received by the general public. Appellant has addressed the

question regarding the benefit received by fee-payers in its Opening and

Reply Briefs. (AOB, p. 26; Reply, p. 6) There is ample evidence that the

9 1 1 fee is based upon the cost of providing the service to fee payers.

(Reply, p. 6-8) Therefore, Amici will not repeat that discussion here.

However, as will be explained below, Respondents' assumption that a

charge for state-mandated programs is necessarily a tax i s factually

cnoneous because it fails to take into account critical features of Union

City's 9 1 1 communications system and the requirements for 9 1 1

communications systems statewide.

State law does not prohibit local governments from charging a fee to

provide even basic 91 1 service to all or some of those who receive its

benefits. The Constitution does not prohibit a local agency from charging a

APPLICATION & A\11ClS CCRIAE BRIEF ]2 CASE NO. Al14956

fee for a service that state law requires local agencies to provide. Nor does

the Constitution forbid a user fee simply because a local agency does not

collect it from all classes of persons creating the need for the fee. The

ConstitUlion only requires that those subject to the fee pay no more than

their proportionate share of responsibility for the service that the fee

supports. (City of Dublin v. Cmn;ty of Alameda ( 1993) 14 Cai.App.4th 264,

281; Kern County Farm Bureau v. County of Kern (1993) 19 Cai.App.4th

1416, 1421.) A local agency that imposes a regulatory or impact fee may

elect to exempt some classes from the fee and fund services it provides to

exempt classes from the agency's general revenues. (Russ Building

Parlnership v. City and County of San Francisco (1987) 199 Cai.App.3d

1496, 1508.) Thus, no provision of state law invalidates the Union City fee

and this Court should not find otherwise.

1. LOCAL AGE"'CIES MAY FUND SERVICES THAT PROVIDE "PUBLIC NECESSITIES" BY CHARGING A FEE.

California law docs not require a municipality to finance all

governmental services that benefit the public through the imposition and

collection of taxes. Indeed California law i s just the opposite. For

example, Government Code section 50076, which implements Artiele XIII

/\, section 4 of the Constitution, excludes from the definition of " special

taxes" "any fee which does not exceed the reasonable cost of providing the

service or regulatory activity for which the fee i s charged, and which i s not

levied for general revenue purposes." This exclusion does not treat fees for

services that provide a public benefit differently than fees for services that

do not. Moreover, while Government Code section 53978 specifically

authorizes special taxes for fire, police and ambulance services -

quintessential "public necessities," the Legislature was careful to forestall

APPLICATION & AMICUS CURIAE BRIEF ] 3 C\SE NO. All4956

an unwarranted reading of that authorization. As a result section 53978

does not limit or prohibit "any other fee, charge, or tax. or any license or

service fee" for fire and police protection services. (Gov. Code, § 53978,

subd. (f).)

Thus, California Jaw allows l ocal governments to use fees to pay for

governmental services like fire protection even though the services are

public necessities, confer a general-public benefit and are available to

everyone in the community regardless of the payment of the fee. Amici

have found- and Respondent has cited- no California law that forbids

local agencies from relying on fairly apportioned fees to fund all or part of

a service that provides "public necessities." But a court should not attribute

that absence to the Legislature's failure to think about limitations on fees.

Indeed, California law suggests otherwise by expressly limiting one

specific type of fee. Government Code sections 50076 and 53978 prohibit

property-related fees for general government services. This specific

limitation would not be necessary if California law imposed a blanket

prohibition on local agency fees for general government services. Sinee

local agencies do not impose the 9 1 1 fee on property owners or as an

incident of property ov,nership, this limitation on fees is inapplicable. '

(Richmond v. Shasta Community Service District (2004) 3 2 Cal.4th 409,

428 [concluding that water connection fee, including a fire suppression

charge, is not a property-related fee running afoul of Prop. 2 1 8's prohibition

on property-related fees].)

Consistent with this view, courts have upheld a range of non-tax

revenue mechanisms for funding governmental services that benefit the

public as well as the fcc payer. (See, e.g., Kaufman & Broad Central

Valley v. City ofModesro ( 1 994) 2 5 Cal .App.4th 1 577 (development impact

APPLICATION & AMICUS Cl'RIAE BRIEF ]4 CASE NO. A114956

fee for financing police and fire facilities, among other improvements); '

Russ Building Partnership. supra, 1 9 9 Cal.App.3d 1 496 (development fee

for impacts on public transit): Kern County Farm Bureau, supra, 1 9

Cal .App.4th 1 4 1 6 (assessment on agricultural land for access to landfills);

Keller v. Chowchilla Water District (2000) 80 Cal.App.4th 1 006 (standby '

fees for water service; see also, Health & Safety Code section 5471

(authorizing standby fees for water and sewerage); Government Code

section 50078 (authmizing assessments for fire suppression); Streets &

B ighways Code section 5000 et seq. (authorizing assessments for a broad

range of street and public improvements); and Streets & Bighways Code

section 22500 et seq. (authorizing assessments for landscape and lighting

districts.)

While these charges vary in nature and impact, they share four

characteristics. First, each funds some governmental function or service

most of which are public necessities that benefit not only the person paying

the charge but also the general public. Second, the charges must satisfy a

nexus and proportionality test to ensure both that there is a connection

between the activity subject to the fee and the purpose for which the agency

will expend the fee and that each party pays no more than its proportionate

share of the cost of the function or service the charge funds. Third, local

agencies impose none of these charges on property owners or as an incident

of property ownership. Finally, l ocal agencies could elect to levy voter

approved taxes to fund all of these functions and services.

Citing People ex rei. Allorney Gen. v. Naglee ( 1 850) 1 Cal. 232,

Respondents argue that the 9 1 1 Emergency Response charge cannot be a

fee because it funds "public necessities." (Resp., p . 28.) But Naglee has

more to do with immigration and state's rights than it has to do with our

APPLICATION & A\11CUS CURIAE BRIEF 15 CASE NO. All4956

modem concept of taxes. Moreover, the Califomia Supreme Court based

its statement that taxes are imposed for the purpose of supplying "public

necessities" on the "common acceptation" of the term "taxes." (Naglee,

supra, at p. 253) The cou1i's statement has no bearing in the post-

Proposition 1 3 era on the previously undeveloped distinction between fees

and taxes. Fundamentally Nag lee does not hold that a charge to fund a

public necessity is necessarily a tax.

Thus, state law does not bar local agencies from imposing a fee for a

govemmental service that provides a general benefit to the community as

long as the fee paye,r receives a benefit from the service that is

proportionate to the amount of the fee and the fee i s fairly apportioned

among the fee payers.

II. CALIFORNIA LA \V RECOGNIZES THAT FEES ARE AN IMPORTANT MEANS FOR LOCAL JURISDJCTJONS TO FUND THEIR PERFORMANCE OF STATE-MANDATED GOVERNMENT PROGRAMS SUCH AS "911" El\1ERGENCY RESPONSE SERVICES.

The State Constitution and case law belie Respondent's assertion that

a charge for a state-mandated program that provides a public benefit must

be a tax. (See Resp. p. 30-3 1 ) In fact, the Constitution requires the

Legislature to provide funding for new state-mandated local programs and I

services, unless the local state law allows the local govemment to fund the

program or service by charging a fee. (Cal. Const., Art. XIII B, Sec. 6;

Gov. Code, § 1 7556) . Therefore, cities may charge a fee for state

mandated local programs , including those that benefit the general public.

The �Wanen Act required local agencies to provide a new local

program or a higher level of service. (See Legis. Counsel's Dig., Assem.

Bill No. 41 6 ( 1 975- 1976 Reg. Sess.), Summary Dig., p. 3.) Although the

Constitution did not prohibit unfunded mandates at the time the Wanen Act

APPLICATION & AMICUS CURIAE BRIEF ]6 CASE '\0� All4956

was passed, statutes and case law following the adoption of Article XIII B

allow local agencies to impose fe�s to recover costs of state-mandated

services absent a clear legislative intent to the contrary. �o such intent

exists here. Because the Legislature only authorized the reimbursement of

some, but not all, of the costs of the local agencies to implement 9 1 1

services (Rev. & Tax. Code, §§ 4i 1 40- 41 1 4 1 ), local govemment may

adopt fees to make up the shortfall.

Constitutional amendments adopted after the Warren Act illustrate

the relationship between state-mandated local programs and the revenue

sources available to fund them. In 1 978, Cal ifomia voters added article

Xlll A (commonly known as "Prop. 1 3 ") to the California Constitution to

limit ad valorem property taxes and "special taxes." Article Xlli B

(commonly known as "Prop. 4"), which the voters added in 1 979, limited

the ability of state and local govemments to expend tax proceeds. These

two articles "work in tandem," restricting the ability oflocal jurisdictions to

raise and spend taxes for public purposes. (County of Fresno v. State of

California ( 1 99 1 ) 53 Cal . 3d 482, 486 quoting City of Sacramento v. State

of California ( 1 990) 50 Cal.3d 5 1 , 59.)

for the purposes of this case, section 6 of article Xlli B i s

particularly illustrative. That section protects l ocal governments from state

raids on their tax revenues by prohibiting the State Legislature from

mandating new local programs or higher levels of service without providing

reimbursement for the cost of the program ("unfunded mandates").

"Section 6 was included in article Xlll B in recognition that article

X Ill A of the Constitution scwrely restricted the taxing power of local

gm crnmcnts. [Citation omitted.] The provision was intended to preclude

the state from shifting financial responsibility for carrying out

APPLICATION & AMICUS CURIAE BRIEF ]7 CASE NO . .All4956

governmental functions onto local entities that were i l l equipped to handle

the task." [Citation omitted.] (County of Fresno, supra, 53 Cal.3d 482, at p .

487.)

California Govemment Code section 1 7556 implements and

interprets Article XIII B §6. (Gov. Code, § 1 7556, subd. (d).) Section

1 7556(d) provides that the state is not required to reimburse for a local

mandate where the local agency has "the authority to levy service charges,

fees, or assessments sufficient to pay for the mandated program or

increased level of service." The general ability of the local agency to

impose taxes to pay for the costs of the state mandate, however, docs not

relieve the state of the obligation to reimburse the local agency for an

unfunded mandate. ( Connellv. Superior Court of Sacramemo County

( 1 997) 59 Cal.App.4th 382, 398.)

Therefore, a mandate that local agencies provide a service has no

bearing on their authority to charge a fee to cover the cost of the service.

Nor should this Court read into the Constitution a requirement that a local

agency choose between a fee on all or on none. A local agency may

impose fees on some service recipients to fund part of a state mandate and

pay for the rest from the general fund. (Russ Building Partnership, supra, at '

1 508.) Union City implemented its Emergency' Communication Response

System to comply with a state mandate to provide 9 1 1 communications

service. That state mandate does not prevent Union City from charging a

fcc to support the service. Given the limitations on the ability of local

agencies to levy taxes, as recognized by the Califomia Supreme Court in

County of Fresno, this Com1 should pause before finding in either a statute

or the Constitution any limit on the ability of a l ocal agency where there i s

APPLICATION & AMICUS CLRIAE BRIEl' !8 CASE "10. Al14956

the appropriate nexus to charge a fairl y appmiioned fee for part or all of a

state-mandated service.

STATE LAW MANDATES ONLY "BASIC" 911 SERVICE. THUS, EVEN IF A CHARGE FOR STATE-MANDATED SERVICES MUST BE A TAX THAT MANDATE DOES NOT AFFECT THE ABILITY OF A LOCAL AGENCY TO IMPOSE A FEE FOR "ENHANCED"

911 SERVICE.

California Jaw permits cities to charge a fee for programs that are

mandated by the state even though the programs also provide a benefit to

the public. The only fundamental limitation on this fee authority is that the

fees may not exceed each fee payer's propmiionate share of the cost of the

program. The Appellant's brief has addressed this requirement and

demonstrated how the 9 1 1 fee meets it. But the case before the court does

not simply involve a state-mandated service. Union City's emergency

response system, like those in most California jurisdictions, exceeds the

requirements of state Jaw, which mandates that every local public agency

establish a "basic system." (Gov. Code, § 5 3 1 09.) Because Union City

provides far more than state law requires, it may charge a fee even if state

law would not allow a fee for the bare minimum service. (See Musgrove

Dec. cited at AOB, p. 1 4 APP000506: Union City Municipal Code, §

7 .20.020A.)

The state-mandated "basic system" need' only enable the user to

reach emergency services by dialing the numbers "91 1 ." As defined in the

Warren Act "basic system" means "a telephone service \cvhich

automatically connects a person dialing the digits '91 1 ' to an established

public safety answering point through normal telephone service facilities ."

(Gov. Code, § 5 3 1 07.) A basic 9 1 1 system is the minimum level of service

that a public agency must provide under the state law.

APPLICATION & AMICUS CCRLAE BRIEF ]9 CASE "0. All4956

A local agency can comply with the requirement of a "basic 9 1 1

system" simply changing all of the emergency telephone numbers to 9 1 1

and providing operators to answer the call s . But the effectiveness of basic

9 1 1 service is limited by the ability of tl1e caller to provide essential

infom1ation about the emergency event. Jn basic 9 1 1 service, the local

emergency operator answering the call (the "call-taker") does not have the

caller's telephone number or exact location, so the caller must be able to

provide this information. The call-taker i s not able to call back or dispatch

help if 1l1e call is not completed, dropped or disconnected, or if the caller is

unable to speak. Generally, once the operator has obtained the necessary

infom1ation from the caller, s/he uses radio dispatch to contact fire, police

or emergency medical services and send them to the scene of the

emergency.

Under state law, each local agency has discretion over how much

service to provide above and beyond a "basic system." Union City, like

many other local govemments, has chosen to exceed the state's minimum

requirements. Union City incorporated elements into its emergency

response system that greatly enhance tl1e system's functionality by making

information about the origin of the call available to the emergency operator

on a digital display at the public safety answering point (PSAP). A system

that supplies the caller's location and telephone number i s generally referred

to as an "enhanced" 9 1 1 system or "E-91 1 ." (NENA Glossary, supra,

"Enhanced 9 1 1 ," p . 20.)

An "enhanced system" involves a network of collaborative

databases. which provide the call-taker with essential infonnation within

seconds. The enhanced system includes the ability to route "9 1 1 " cal l s to

the proper PSAP based on the telephone number and the associated

APPLICATION & AMICUS CURIAE BRIEr 20 CASE NO. All4956

physical location of the caller. (NENA Glossary, supra, "Automated

Location Jdentification (ALI) Queries" at p. 1 1 .) For example, if the caller

is having a hca11 attack and manages to call 91 1 , an enhanced 911 system

will provide the location to the call -taker, who can then send an ambulance

to the correct location, even if the caller loses consciousness immediately

after placing the call.

The enhanced 91 1 network is able to do so by using the caller's

telephone number to get the physical address from an Automated Location

Identification ("ALI") database. Using that address, the enhanced network

refers the call to the proper PSAP based on a M aster Street Address Guide.

The call taker's computer screen at the PSAP automatically displays the

caller's telephone number, the address/location of the telephone and any

supplemental emergency services information. (See NENA Glossary,

supra, "Automated Number Identification" and "Automated Location

Identification," p. 1 1 .) This process, "Sel ective Routing" predetermines the

proper answering point based on the location of the caller. (ld., "Selective

Routing," at p. 35.) Additionally, in an enhanced system, the call taker has

the ability to transfer the call to an emergency response agency that can

provide the appropriate services using one button, based on the location of '

the caller. (/d., "Selective Transfer," at p. 36.) '

Another important enhancement is the "call back" feature, which

enables the call-taker to re-contact the calling party if the call is

disconnected. (NENA Glossary, supra, "Call back," p. 1 2.) This option is

especially important if the calling pm1y is a victim of domestic abuse or

criminal assault and hangs up before communicating the reason for the cal l .

The call-taker can re-contact tl1e caller. obtain the automated location

information and send help, without further communication with the caller.

APPLICATION & AMICUS CURIAE 13RIH 21 CASE :"0. A 114956

The enhanced data available with E-9 1 1 service make functions like call

back possible. Many jurisdictions also employ one button transfer to an

adjacent or secondary answering point v.hen that answering point can

provide a quicker response (Jd., "Fixed Transfer," at p. 2 1 .), and twenty

four hour translation service to assist callers who do not speak English. '

Neither of these functions i s a part of the basic services.

An "enhanced" 9 1 1 system is, therefore, a technologically

sophisticated communication system that collects and processes l ocation

data using specially trained personnel. Even if State Jaw did limit the

ability of a local agency to charge for the basic system that state l aw

requires, that limitation would not affect the Union City system, and other

local enhanced 9 1 1 systems, which provides a wide range of emergency

communications dispatch capabilities that exceeds state law requirements.

CONCLUSION

While state legislation establishes "91 1 " as the primary number to

call for emergency response, it does not preempt the field or determine how

local 9 1 1 systems are to be funded. The emergency response service

provided by Union City and many other cities in California is a

technologically sophisticated communication system that collects and

processes l ocation data in an emergency. It is a crucial enhancement to

governmental functions involving fire and police response. Local

governments should be able to charge a reasonable fee to defray the cost of

providing this type of enhanced service.

Much has changed since the state law was passed establishing the

number "91 1 ." In 1 975 , only 23 percent of telephone users polled by

Pacific Telephone and Telegraph (PT &T) were even aware of the number

"91 1 ." Today, fee payers have come to rely on the availability of "9 1 1 "

APPLICAIIO'. & AMICUS CURIAE B R I El' ?7

CASE "\;0. A 1 1 4956

servrce. Although cellular telephones were not widely used when the state

"91 1 " law was enacted, the ability to call 9 1 1 from a cell phone is

undoubtedly one of the reasons for owning a cellular telephone today.

Since HmTicane Katrina and the :\'ew York City tenmist attacks on

September 1 I , 200L we have become increasingly cognizant of the

usefulness, as well as the shmicomings, of "91 1 " services.

If this Court detennines that Union City's Emergency

· Communication Response Fee is an illegal tax, local governments will be

faced with confronting an enonnous unfunded state mandate that the state

Legislature neither envisioned or intended to pass on to local governments.

Limited funding options will result in "9 1 1 " service becoming Jess

dependable and, therefore, Jess effective statewide. For all of these reasons,

the Court must uphold the Union City "9 1 1 " fee.

Dated: June 25, 2007

APPLICATION & A\11CUS CURIAE BRIEl 2� CASE NO. Al 1 4956

DEN'NIS J . HERRERA City Attorney BUCK DEL VENTRAL Chief Government Team Deputy JULIE K. VAN NO STERN ChiefTax Team Deputy DANNY CHOU Chief of Appellate Litigation JEAN ,H. ALEXANDER Deputy City Attorney

Attorneys for Amici Curiae CALIFORNIA STATE ASSOCIATION OF COUNTIES. LEAGUE OF CALIFORNIA . CITIES AND THE CITY AND COUNTY OF SAN FRANCISCO

CERTI.F1CA TE OF COJ\1PLIANCE

I hereby certify that this brief has been prepared using

proportionately double-spaced I 3 point Times New Roman typeface.

According to the "\V ord Count" feature in my Microsoft Word for

Windows software, this brief contains 6,43 I words up to and including the

signature lines that follow the briefs conclusion.

I declare under penalty of perjury that this Certificate of Compliance

is true and conect and that this declaration was executed on June 25 , 2007.

DENNIS J . H ER RERA City Attorney JEAN H . ALEXANDER Deputy City Attorney

By:�/ 71��

PROOF OF SERVICE

I, BOLLY TAN, declare as follows: I am a citizen of the United States. over the age of eighteen years

and not a partv to the above-entitled action. I am employed at the City Attomey's Office of San Francisco, City Hall, 1 Dr. Carlton B. Goodlett Place, Room 234. San Francisco, CA 94 1 02 .

On June 26, 2007, l served the following document(s):

APPLICATJON FOR J>E Rl\1I SSlON TO FILE AMICUS CURIAE BRIEF AND AMJCt:S Ct:RIAE BRIEF OF THE CALIFORNIA STATE

ASSOCIATION OF COUNTIES, LEAGUE OF CALIFORNIA CITIES AND TH E CITY AND COUNTY OF SAN FRANCISCO

on the following persons at the locations specified: Michael S. Riback, Esq. David Calker Joseph M. Qninn, Esq. David Gross Michael T. 0' Flannigan, Esq. Stephen Chiari M EYERS, NAVE, RlBACK, SILVER & DLA PIPER US LLP WILSON 2000 University Avenue 555 1 2'11 Street, Suite 1 500 East Palo Alto, CA 94303-22 1 4 Oakland, CA 94607 Counsel for Respondents Bay Area Cellular Counsel for Appellant Union City Telephone Company et. al. VIA U.S. MAIL VIA OVERNIGHT MAIL

Harold Griffith P.O. Box 96 Freedom, CA 950 1 9 Amicus in support of Respondents

VIA U.S. MAIL in the manner indicated below:

Judge Winifred Y. Smith c/o Clerk of the Court Alameda County Superior Court 1 225 Fallon Street Oakland, CA 946 1 2 VIA OVERNIGHT MAIL

t:S] BY UNITED STATES lVIAIL: Followmg ordinary business practices, I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at my \Yorkplace for collection and mailing with the United States Postal Service. I am

readily familiar with the practices of the San Francisco City Attorney's Office for collecting and processing mail. In the ordinary course of business, the sealed enve]ope(s) that I placed for coJJection would be deposited, postage prepaid, with the United States Postal Service that same day.

t:S] BY OVERN I G H T DELIVERY: l >ealed true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and dehvery b�.-" O\'tTnight courier service. l am readily familiar \Vith the practices of the San FrancJsco City Anorney's Office for sending overnight deliveries. In the ordinary course of business. the sealed envelope(s) that I placed for collection would be collected by a

courier the same day.

l declare under penalty of perJury pursuant to the laws of the State of California tl1at the foregoing is true and correct. Executed June 26, 2007, at San Francisco. California.

/� APPLICATIO'\ & A\iiCCS CCRIAE BRIEF 2) CASE NO. A! 1 4956

HOLLY TAN