The Ninth U.S. Circuit Court of Appeals has given new life to a lawsuit alleging that the City of Modesto and Stanislaus County discriminated against four predominately Latino communities.
In overturning a two-year-old ruling by a federal District Court judge, the Ninth Circuit said there is sufficient evidence for the lower court to consider whether the city's and county's annexation policies and provision of emergency services violate residents' constitutional and statutory rights. The appellate panel did, however, uphold rulings that excluded sewer service and other infrastructure from the suit's discriminatory claims.
The decision appears to mean that cities and counties that have communities with substandard infrastructure and poor public services – as well as local agency formation commissions (LAFCOs) that help make annexation decisions – need to consider social justice issues when drawing boundary lines. The ruling also has the potential to buttress two bills in the Legislature that would add social justice concerns to annexation policies and general plans.
Stanislaus County and Modesto maintain they have done nothing wrong. Terrence Cassidy, an attorney for the county, told the Los Angeles Daily Journal, "When the county gets the opportunity to present all the evidence, it will establish it did not discriminate in any … fashion."
Two Latino community groups and 12 residents sued Modesto, the county and the sheriff in 2004. They amended their complaints in 2005. Here's the background.
The plaintiffs live in and represent the Bret Harte, Hatch-Midway, Robertson Road and Rouse-Colorado neighborhoods, which are unincorporated islands surrounded, or nearly surrounded, by incorporated Modesto territory. All four neighborhoods were developed during the 1940s and 1950s. Hatch-Midway and Rouse-Colorado lack sewers, while a sewer system has been approved for Robertson Road. All four lack sidewalks, curbs, gutters, storm drains and street lights. Since 2000, Latinos have been in the majority in all four neighborhoods.
In 1983, Modesto and Stanislaus County signed a master tax sharing agreement (MTSA) that ensures the county would continue to receive two-thirds of the property-tax revenues in an area annexed by the city. The agreement specifically excluded Bret Harte and Robertson Road.

In 1988, residents of Bret Harte applied for annexation to Modesto, but the bid failed because the city and county could not agree on how to divide up the area's property tax revenues. A 1996 amendment excluded Hatch-Midway from the revenue sharing agreement. A 2004 amendment added a portion of Bret Harte to the agreement.
A need for sewer service often drives annexation bids. Thirty years ago, Modesto voters approved a ballot measure prohibiting sewer extensions without an advisory vote. In 1995, they passed Measure M, which requires an advisory election before any sewer improvements could be made in unincorporated areas. (There were five advisory votes in the November 3 election.) The Modesto City Council approved procedures for implementing Measure M in 1998.  They prohibit Measure M votes for extending sewer services to "substantial" islands – a term left undefined – unless the county first agrees to install other infrastructure.
The plaintiffs contended that the city's policies and the revenue sharing agreement are discriminatory and violate the Fourteenth Amendment's equal protection clause, the Fair Housing Act and state laws. District Court Judge Lawrence O'Neill issued summary judgment for the city, citing insufficient evidence from the plaintiffs.
The Ninth Circuit, however, found substantial evidence to support some of the discrimination claims. For example, the plaintiffs contended that the islands excluded from the revenue sharing agreement – an essential tool for annexation – were 71% Latino, according to the 2000 Census, while those included in the tax pact were 48% Latino. In addition, they pointed out that Modesto refused to include Bret Harte when it annexed neighboring Fairview Village in 1996, even though LAFCO recommended that all the territory become part of the city. The court held that the plaintiffs should be allowed to present this information to the District Court.
"[A] reasonable fact-finder could conclude that exclusion from the MTSA is indeed a barrier to annexation that neighborhoods covered by the MTSA do not face," wrote Judge Louis Pollak, a District Court judge from Philadelphia sitting by assignment to the Ninth Circuit. "Given the context of the 2004 reenactment, the trend of neighborhoods to become more heavily Latino over time, the 1988 unsuccessful Bret Hart application, and the example of the Fairview Village annexation, we conclude that plaintiffs have presented evidence of discriminatory impact."
Arguments over the provision of law enforcement and emergency services to the four neighborhoods centered on response times. Over a two-and-a-half year period that ended in August 2004, the average response time of the sheriff's office to the plaintiffs' neighborhoods was 13.4 minutes, compared to 12.5 minutes for majority white communities. O'Neill had ruled that the time difference was not "meaningful."
Writing for the Ninth Circuit, Pollak said the court "cannot agree that, as a matter of law, a difference of one minute can be characterized as not making a ‘meaningful difference' when one is waiting at one's home for law enforcement or emergency personnel to arrive, particularly in the absence of any explanation for why the time difference exists."
He went on to write, "A fact-finder should decide if the difference is material and if so if the difference is explainable on grounds other than the ethnicity of the population of those neighborhoods."
The plaintiffs did not fare as well with respect to their claims about sewer service, Measure M and new infrastructure. The appellate court noted that Modesto had extended sewer service to only three of 26 unincorporated islands, and all three have large Latino majorities. As for such infrastructure as storm drains and sidewalks, the court found that the county has many needs and limited funding, and there was no evidence of discriminatory intent in the county's allocation of resources.
Victor Rubin, vice president of research for the social justice organization Policy Link, said the case demonstrates the need for government agencies to address fiscal issues that block annexation drives. It's not acceptable for government agencies to give up because of difficult fiscal negotiations, he said.
"It's another example of how we end up with an absence of infrastructure, and infrastructure planning, because of the fiscalization of land use," Rubin said. The Modesto neighborhoods involved in the lawsuit are not unusual in the Central Valley, he added.

The two measures pending in the Legislature are AB 853 (Arambula) and SB 194 (Florez). The former would require counties to initiate annexation proceedings for islands that qualify as "disadvantaged communities" if 25% of landowners, or registered voters, sign a petition supporting the annexation. The latter measure would require cities and counties to identify disadvantaged islands and fringe communities in their general plans and analyze the feasibility of annexing the communities. Lawmakers could consider both bills after the first of the year. Cities and counties are skeptical, while Policy Link, California Rural Legal Assistance and other social justice advocates support the measures.
In an analysis, Colantuono & Levin attorney Yvette Abich Garcia wrote, "Whether or not these bills move forward, the Modesto suit suggests LAFCOs, cities and counties with underserved county areas should consider whether and how to address the social concerns expressed by this litigation and legislation."
The Case:
The Committee Concerning Community Improvement v. City of Modesto, No. 07-16715, 2009 DJDAR 14628. Filed October 8, 2009.
The Lawyers:
For the committee: Brian Brosnahan, Kasowitz, Benson, Torres & Friedman, (415) 421-6140.
For the city: John McDermott, Howrey LLP, (213) 892-1800.
For Stanislaus County: Terrence Cassidy, Porter Scott, (916) 929-1481.