A sad day for democracy

By David Gurney

On a sad day for our democracy,  an appeals court has handed down a ruling that sets a bad precedent for the privatization of government, from here and into the future.

California’s First District Court of Appeals in San Francisco has stated that contractors for a privately funded “public/private partnership” known as the MLPAI “Initiative” – working to interpret, implement and enforce a decade-old law – are immune from any public scrutiny, accountability or responsibility for their actions.

According to the justices, these contractors, working as a group with state agencies, were not any sort of “jural entity.”

What this means, is that the private contractors who ran public meetings and fashioned controversial ocean closures were not a “jural entity,” and so were supposedly not bound by the law. (see Webster’s definition of jural:   1. of law; legal.   2. relating to rights and duties.)

Some are arguing a seemingly obvious fact: that if the MLPAI was not a jural entity, then none of their recommendations, restrictions or alternatives have any factual legal basis.

The highest levels of our justice system have recently ruled in favor of moneyed interests, with the Supreme Court granting “corporate personhood” to large corporations.  This current ruling allows groups of private MLPA “Initiative” corporate contractors, engaged in work hired out to them by the government, to be exempted from all the checks and balances of accountability and transparency that are required for a democracy to function.

As public/private operations take over the day-to-day work and infrastructure of cash-strapped government agencies, these public/private partnerships have crossed an invisible line, with the MLPA by now taking over the actual government process itself.  And, by this ruling, these pseudo-government agencies, paid for with private corporate money, will not be held honest or accountable.

Anyone who was around during the MLPAI’s run through the North Coast will remember how they trumpeted themselves as “the most open and transparent process ever!”

Now, as reality begins to set in, you can rest assured:  You were lied to.  By hiding their actions and denying that they were a “legal jural entity,” the MLPAI has shown its true colors.

With this ruling, the door to accountability will now be closed, and the private contractors, – the “laptoppers” of the MLPAI’s  “I-Team,” – and the MLPAI organization itself, will not be held legally accountable for anything they have done.

When our community heard that the MLPAI “Initiative” was coming to town back in 2009, we can only wish we had followed the intuition of many – and thrown up the ramparts and barricades at the edge of town, with a sign reading: “Only Legal Jural Entities Need Apply.”

 

The language of this terrible and unjust ruling may be read below:

 

GURNEY v. MARINE LIFE PROTECTION ACT INITIATIVE

DAVID GURNEY, Plaintiff and Appellant, 
v. 
MARINE LIFE PROTECTION ACT INITIATIVE, Defendant and Respondent.

No. A132856.
Court of Appeals of California, First District, Division Four.
Filed March 26, 2012.

REARDON, J.
The trial court granted the motion of respondent Marine Life Protection Act Initiative (MLPAI) to quash appellant David Gurney’s service of summons. Gurney appeals, contending that the MLPAI is a jural entity subject to suit. We affirm the order to quash.
I. FACTS1
Appellant David Gurney is a Mendocino video journalist. In January and April 2010, he attended three MLPAI meetings held in Fort Bragg. He attempted to videotape the meetings and to offer comments. He was prevented from doing so, under conditions that he later alleged were illegal, intimidating and coercive. During the third meeting, he was arrested and cited for two misdemeanors. Later, one charge was dropped; the district attorney declined to prosecute the other charge. Gurney’s governmental claim for damages was denied in October 2010.
In December 2010, Gurney filed an action for violation of his civil rights, false imprisonment, negligence and declaratory relief against the state Department of Fish and Game (DFG), the California Natural Resources Agency (CNRA), and three individual defendants. He also purported to sue the MLPAI. In his action, he sought compensatory and punitive damages, as well as declaratory relief. In early March 2011, the DFG, the CNRA and the individual defendants answered the complaint.
On March 22, 2011, Gurney’s process server served Melissa Miller-Henson—a DFG employee who is the MLPAI’s program manager—with a copy of the complaint and summons in this action. He asserted that she was an agent authorized to accept service of process for the MLPAI. Despite Miller-Henson’s explanation that the MLPAI was not an organization that could be sued, she was served with these documents. The proof of service described the MLPAI as an association or partnership. (See Code Civ. Proc., § 416.40.)
In April 2011, the MLPAI—appearing specially—moved to quash service of summons for lack of jurisdiction. The motion argued that the MLPAI was a project, not a jural entity capable of suing and being sued. Gurney opposed the motion. After a May 2011 hearing on this motion, the trial court ruled in the MLPAI’s favor, finding that the MLPAI was not an entity subject to suit. Service on Miller-Henson was declared to be null. A month later, an order quashing service of summons to the MLPAI was entered.
II. JURAL ENTITY
A. Legal Principles
Gurney contends that the MLPAI is a partnership which fairness requires to be subject to civil action. He reasons that the MLPAI is an unincorporated association, making it a jural entity for purposes of suing and being sued. The trial court specifically found that the MLPAI did not constitute an unincorporated association.
The social and economic realities of present-day society rest on group structures of many types. In order to operate successfully, these groups must be able to bring legal actions and must be liable to suit themselves. (Daniels v. Sanitarium Assn., Inc. (1963) 59 Cal.2d 602, 607-608; Barr v. United Methodist Church (1979) 90 Cal.App.3d 259, 265 (Barr).) By definition, an entity is a jural entity subject to suit if it is a group whose members share a common purpose, and if those members function under a common name under circumstances in which fairness requires that the group be recognized as a legal entity. (Barr, supra, at p. 266.) Any partnership or unincorporated association—whether or not organized for profit—is such a jural entity, because it may sue and be sued in the name which it has assumed or by which it has come to be known. (Code Civ. Proc., § 369.5, subd. (a).)
State law allows service of process to be made on an agent on behalf of an unincorporated association, including a partnership. (Code Civ. Proc., § 416.40.) As there are no factual disputes in this appeal, the issue of whether the MLPAI is a jural entity is a question of law that we decide anew on appeal. (See People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31, 38;Barr, supra, 90 Cal.App.3d at pp. 263-264.)
B. Nature of the MLPAI
Our analysis of whether the MLPAI is a jural entity turns on an understanding of the true nature of the MLPAI. In 1999, the Legislature enacted the Marine Life Protection Act (Act), seeking to develop a more coherent plan to protect California’s many, varied marine protected areas. (Fish & G. Code,2 §§ 2850-2863; see Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1191-1192 (Coastside).) The Act charges the Fish and Game Commission and the DFG—supervised by the CNRA3 —with various duties. (See §§ 30, 37, 2855, 2856.) However, state funding proved to be inadequate to these tasks. (Coastside, supra, 158 Cal.App.4th at pp. 1189, 1198.) In August 2004, the predecessor to the CNRA and the DFG entered into a memorandum of understanding with a private nonprofit foundation—the Resources Legacy Fund Foundation (RLFF)4 —to facilitate implementation of the Act. That memorandum of understanding created the MLPAI as a “public-private partnership” providing resources needed to implement those goals. (Id. at pp. 1188-1189.)
The Act charges the Fish and Game Commission to adopt a master plan to implement the Act’s goals. (§ 2855, subd. (a); Coastside, supra, 158 Cal.App.4th at p. 1192.) Under the memorandum of understanding, an appointed group of unpaid advisors serve as an MLPAI Task Force overseeing preparation of the draft master plan. Publicly noticed, open meetings—such as the ones Gurney attended—are part of this master plan development process. The MLPAI Task Force is supported by employees of the CNRA and the DFG, and funded by the RLFF. Since 2007, Melissa Miller-Henson has served as program manager of the MLPAI Task Force, although she remains an employee of the DFG.
The MLPAI is not a state agency, nor is it incorporated. It has no officers, members or associates. The memorandum of understanding creating the MLPAI specifically provides that it does not create a partnership or trust relationship between the parties. The CNRA, the DFG and the RLFF created the MLPAI, which was not a party to the memorandum of understanding, but the result of it.
C. Discussion
Our analysis of the relevant authorities satisfies us that the MLPAI is not a jural entity subject to suit. It is not a group whose members share a common purpose, but is a program or set of objectives. (See Barr, supra, 90 Cal.App.3d at p. 266.) Neither is the MLPAI a partnership or unincorporated association within the meaning of California law. (Code Civ. Proc., § 369.5, subd. (a).) Describing the MLPAI as a “public-private partnership” does not elevate this program to a formal partnership.5
Finally, this is not a case in which fairness requires that the MLPAI be recognized as a legal entity, because its administrating entities—the DFG and the CNRA—are subject to the underlying action. (See Barr, supra, 90 Cal.App.3d at p. 266.) Those two agencies have filed an answer to Gurney’s complaint, acknowledging that they come within the jurisdiction of the court for purposes of determining his action. The issues that he raises challenging the MLPAI and the activities undertaken pursuant to that program will be before the trial court in the action against the DFG, the CNRA and the three individual defendants. The trial court correctly concluded that the MLPAI is not a jural entity capable of being sued.6
The order quashing service of summons is affirmed.
Ruvolo, P.J. and Sepulveda, J.*, concurs.

 

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2 Responses to A sad day for democracy

  1. Anna Marie Stenberg says:

    David thank you for waging the good fight. I always told my clients that, ” There is a good reason why Lady Justice has a blind fold on. Whoever puts the most money on the scale she is holding gets the justice.”

  2. Don Sack says:

    Hey Mate:

    You are fighting the devil. They already had judges and the legal aspects of their conspiracy lined up for all challenges. That does not mean you were wasting your time and efforts. In fact this result just shows how evil these people are. I still think that the people will see the corruption as time goes on – you know they can’t stop the greed from showing its ugly head sooner or later. You hold your head high as you know you are righteous and we are all behind you :)