Appeal Against MLPA 'Initiative' - Opening Brief

Mr. Martin’s Opening Brief for the appeal reads, in part, as follows:

MLPAI IS A GROUP WHICH FAIRNESS REQUIRES BE SUBJECTED TO SUIT

The leading case is "Barr versus United Methodist Church (1979), where the court found the defendant church subject to suit despite the church's contention that it was merely “loose connection all system and not jural entity capable of being sued.” And it provides: "A partnership or other unincorporated association, whether organized for profit or not, may sue and be sued in the name it has assumed or by which it is known."

Barr observed that "the trend of case law has been the rejection of legal niceties to assure full recognition of the unincorporated association as separate legal entity." Citing cases from the early 1960s holding unions subject to suit, the Barr court pointed out that it was the "social and economic realities of the present day organization of society" that required the court to recognize "group structures of all types." The court was concerned that "outmoded concepts” might impair institutions and impede the judicial process.

The court then defined the criteria for an unincorporated association: "(1) a group whose members share a common purpose, and (2) who function under a common name under circumstances where fairness requires the group be recognized as a legal entity." Fairness, under this definition includes situations where "persons dealing with the association contend their legal rights have been violated."

In our case, this reporter was unlawfully arrested at a public meeting for attempting to openly record the meeting, and for asking a question after being recognized by the speaker. These actions by private contractors of the MLPAI were in gross violation of the 1st Amendment and California’s Bagley-Keene Open Meetings Act.

Mr. Martin's appeal goes on to state:

Coastside Fishing Club versus California resources agency (2008)... does discuss the inception of the MLPAI: "After it became clear that the DFG's limited resources rendered it unable to prepare a draft master plan within the time periods specified by the legislature, the Agency [California Resources Agency (CRA)] and the Department of Fish and Game (DFG) created the Marine life protection act initiative in 2004, which was designed in part to obtain private funds to supplement the inadequate public funds provided for MLPA implementation - through a "public-private" partnership." In the 2004-2005 budget act, the legislature provided $500,000 for MLPA implementation and required that these funds be used to "leverage private resources."

DFG and CRA subsequently “entered into a partnership with a private foundation to assist in the implementation of the MLPA." In finding the delegation of power to the MLPAI lawful, the court noted that courts have "countenanced delegations of an extraordinarily broad array of powers, not only to government regulatory agencies...but as well to private groups."

MLPAI meets the Barr test for an unincorporated association: it is a group whose purpose is to carry out the MLPA by means of a "public-private partnership" and functions under a common name, MLPAI. The MLPAI has a program manager and an executive director, has an organizational structure and a steering committee, and facilitated the regional stakeholder group meetings in Fort Bragg, California where plaintiff alleges his civil rights were violated.

Because appellant has alleged a violation of his civil rights, fairness does indeed require that the group most directly responsible, MLPAI, be subject to suit. It is no answer to say that appellants can sue the component parts of the group. Two generations ago in the early 1960’s, courts held that unions could be sued, and it was no answer to suggest that it was fair to make the injured parties sue the individual members. A generation ago, in 1979, the Barr court held a church group subject to suit, and likewise, it was no answer to claim that the wronged parties should sue the individual church members.

Today, the entity in question is the "public-private" partnership. Like the unions and churches of yesteryear, it too is a group that acts and functions to reflect current socio-economic realities in these times of difficult budgets. Just as the law once recognized that unions and churches might be sued, so to should it apply the same reasoning to "public-private" partnerships as those entities have become increasingly common. It is the functioning of the entity as a group with a common purpose and a common name that determines the amenability to suit.

Thus, just as the church in Barr could not claim immunity to suit by calling itself a "loose connectional system," neither can MLPAI avoid suit by calling itself a "project" or a "program." The MLPAI is more than a program of DFG; it is a partnership with a private group, RLFF, to accomplish together a set of goals. It is this group arrangement, or partnership, that belies the claim that MLPAI is a mere program.

CONCLUSION

Appellant prays that the trial court's order granting the motion to quash service of summons be reversed and that this matter be remanded to the trial court for further proceedings.