1 of 3

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:
2 of 3

 "(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.)
3 of 3

 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. . . ."