                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                  DANIEL E. LUNGREN
                                                     Attorney General
                                         ______________________________________

                                       OPINION             :
                                                           :          No. 97-201
                                       of                  :
                                                           :          July 10, 1997
                             DANIEL E. LUNGREN             :
                                Attorney General           :
                                                           :
                             ANTHONY S. Da VIGO            :
                             Deputy Attorney General       :
                                                           :
                    ______________________________________________________________________

                     THE HONORABLE TOM McCLINTOCK, MEMBER OF THE CALIFORNIA STATE
         ASSEMBLY, has requested an opinion on the following question:

                           After residents of a community have petitioned to have their community detached from a
         city, does the authority of the city council to terminate the detachment proceedings violate the constitutional
         right of the residents to petition the government for the redress of grievances?

                                                         CONCLUSION

                           After residents of a community have petitioned to have their community detached from a
         city, the authority of the city council to terminate the detachment proceedings does not violate the
         constitutional right of the residents to petition the government for the redress of grievances.

                                                           ANALYSIS

                           Pursuant to the provisions of the Cortese-Knox Local Government Reorganization Act of
         1985 (Gov. Code, §§ 56000-57550; "Act"), Footnote No. 1 the residents of a community may petition to have
         their community detached from a city. (§§ 56650, 56700.) The petition must be signed by at least 20 percent
         of the registered voters residing in the community. (§ 56754, subd. (a).) The petition is filed with the
         executive officer of the local agency formation commission ("LAFCO"). (§ 56703.) After LAFCO considers
         and approves the proposal (§§ 56836-56840), the petition is submitted to the city council for further
         proceedings (§ 57000). The city council must give notice and hold a public hearing on the proposal within 35
         days of LAFCO's approval. (§ 57002.) At the hearing, the city council "shall hear and receive any oral or
         written protests, objections, or evidence which is made, presented, or filed." (§ 57050, subd. (a).) Depending
         upon the number of protests received, the city council may (1) call for an election, (2) order the detachment,
         or (3) terminate the proceedings. (§§ 57075, 57078; Fig Garden etc. Assn. v. Local Agency Formation Com.
         (1984) 162 Cal.App.3d 336, 340.)

                          The focus of the present inquiry is upon section 57079, which provides:


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                           "(a) . . . if the proposed change of organization is a city detachment, the conducting
               authority, not more than 30 days after the conclusion of the hearing, may by resolution terminate
               the detachment proceedings.

                           "(b) . . . if a proposed reorganization includes the detachment of territory from any
               city, the conducting authority, not more than 30 days after conclusion of the hearing, shall
               terminate the proceeding if a resolution or written protest against the reorganization is filed prior
               to the conclusion of the hearing by any city from which any portion of the territory of the city
               would be detached or removed pursuant to the reorganization." Footnote No. 2

         The question to be resolved is whether the city council's right to terminate a detachment proceeding (§
         57079) violates the constitutional right of those who have submitted the proposal "to petition the government
         for a redress of grievances." We conclude that section 57079 is constitutional.

                           The First Amendment to the Constitution of the United States provides: "Congress shall
         make no law . . . abridging the . . . right of the people . . . to petition the government for a redress of
         grievances." The rights safeguarded by the First Amendment, being fundamental rights comprised within the
         term "liberty" specified in the Fourteenth Amendment, Footnote No. 3 are protected against abridgment by the
         states. (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 779-780; Whitney v. California (1927)
         274 U.S. 357, 373 (conc. opn. of Brandeis, J.); 74 Ops.Cal.Atty.Gen. 42, 46 (1991).)

                            The California Constitution, article I, section 3 similarly provides: "The People have the
         right to instruct their representatives, petition government for redress of grievances, and assemble freely to
         consult for the common good."

                          The constitutional right to petition extends to all of the coordinate branches of government.
         (California Motor Transport Co. v. Trucking Unlimited (1972) 404 U.S. 508, 510; City of Long Beach v.
         Bozek (1982) 31 Cal.3d 527, 532-533, judgment vacated and cause remanded (1983) 459 U.S. 1095 reiterated
         (1983) 33 Cal.3d 727.) It is "of parallel importance to the right of free speech and the other overlapping,
         cognate rights contained in the First Amendment and in equivalent provisions of the California Constitution."
         (City of Long Beach v. Bozek, supra, 31 Cal.3d at 535; Fair Political Practices Commission v. Superior
         Court (1979) 25 Cal.3d 33, 46.)

                            It has been repeatedly held that "laws which actually affect the exercise of these vital rights
         cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the
         State's legislative competence, or even because the laws do in fact provide a helpful means of dealing with
         such an evil." (United Mine Workers of America v. Illinois State Bar Assn. (1967) 389 U.S. 217, 222.)
         Rather, such laws may be upheld only if the state demonstrates sufficiently important interests, and the
         restraints are closely tailored to effectuate only those interests. (Zablocki v. Redhail (1978) 434 U.S. 374,
         388; Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d at 48-49.)

                          Accordingly, in 79 Ops.Cal.Atty.Gen. 163 (1996), we determined that a law enforcement
         agency could not condition its investigation of allegations of police misconduct upon the complainant's
         signature of an advisory form warning the complainant of potential criminal prosecution.

                            In 74 Ops.Cal.Atty.Gen. 42, supra, we determined that a city council could not require that
         all discussions between elected city officials and city employees or representatives of 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, thus prohibiting private communication between an employee and a city officer.
         We stated in part that the proposed regulation would be subject to the strict scrutiny doctrine, since its
         application would "`have a real and appreciable impact on the legitimate exercise of the rights of petition and
         speech.'" (Id., at p. 47.)


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                           In the matter under consideration, however, section 57079 has no appreciable impact on the
         legitimate exercise of the constitutional right to petition for the redress of grievances. The right to petition
         does not guarantee a successful disposition. (Canfora v. Olds (6th Cir. 1977) 562 F.2d 363, 364; see also
         Gordon v. Heimann (N.D. Ga. 1980) 514 F.Supp. 659, 661 [government has no corresponding duty to act].)
         This is particularly true in the context of the present inquiry, since there exists no vested right to be included
         or excluded from a local government unit. (Oxnard Harbor Dist. v. Local Agency Formation Com. (1993) 16
         Cal.App.4th 259.)

                           A negative disposition thus does not in itself impair the constitutional right to petition. With
         respect to the termination of the detachment proceedings in question, the termination takes place under the
         terms of section 57079 "not more than 30 days after the conclusion of the hearing . . . ." Those who have
         signed the petition have received a hearing, and their petition has been considered not only by the city
         council but also by LAFCO.

                          It is concluded that after residents of a community have petitioned to have their community
         detached from a city, the authority of a city council to terminate the detachment proceedings does not violate
         the constitutional right of the residents to petition the government for the redress of grievances.

                                                                  *****

         Footnote No. 1
         All references hereafter to the Government Code are by section number only.
         Footnote No. 2
         The "conducting authority" for a city detachment, whether by way of a "change of organization" (§ 56021) or
         "reorganization" (§ 56073), is the city council (§ 56029, subd. (a)).
         Footnote No. 3
         The Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property, without due
         process of law. . . ."




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