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LOFTIN I BEDELL P.C. Honorable Mayor and Councilmembers City of Santa Ana October 13, 2022 Page 3 of 7 These comments mirror comments by Councihember Hernandez, who commented without any factual verification that over 50 percent of the City residents were renters.s These statements are contrary to U.S. Census Data. Los Angeles, San Francisco, Oakland, Berkeley and Santa Monica all have renters in excess of 50%,and have rent controI.' Hayward, San Jose, and Chula Vista are also 40% or greater, and also have rent control. 7 Accordingly, Councilmember Hernandez' and the Mayor's continents could not serve as factual support for findings nor as a rational basis for adopting such an imbalanced board ---in contradiction to the testimony of staff and the advice of the City Attorney. But regardless, our previous citation shows that "representative" boards (as advanced by the Mayor and Councilmember Hernandez) are different from "mandated" boards, where the composition is required, and not appointed on an ad hoc basis or by an electorate. In such a case, like Santa Ana's, the mandate for an unbalanced board creates a due process violation itself, in addition to other constitutional claims. For example, the imbalanced Board also causes the City's entire rent control regime to appear confiscatory, in that the City has "tilted" the sole means for which its landlords would be assured a constitutional, fair return. Also, the fact that an imbalanced board is adopted not only speaks to the procedural due process unfairness, but to the character of the government action —and the related substantive due process concern. We reiterate our citation to previous California case law where mandating a board with imbalanced constituency (based on pecuniary interests) has been overturned: "It is sufficiently clear from our cases that those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes. [Citation] And [Ward v. Village of Monroeville] indicates that the financial stake need not be as direct or positive as it appeared to be in Tunzey. It has also come to be the prevailing view that '[most] of the law concerning disqualification because of interest applies with equal force to . . . administrative adjudicators.' K. Davis, Administrative Law Text § 12.04, p. 250 (1972), and cases cited." (Italics added.)[Citations] In Withrow v. Larkin, the United States Supreme Court additionally notes: " Not only is a biased decisionmaker constitutionally unacceptable but bur system of law has always endeavored to prevent even the probability of unfairness."' Ain. Motors Sales Corp. v. New Motor Vehicle Bd., 69 Cal. App. 3d 983, 990 (1977) (citing Tumey v. Ohio, 273 U.S. 510 (1927), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Withrow v. Larkin, 421 U.S. 35, 47 (1975), in overturning an imbalanced board of administrative hearing officers with pecuniary interests). See also, Applebaum v. Board of s Comments by Mayor Sarmiento, City of Santa Ana City Council Meeting October 4, 2022, 6:04: https://youtu.be/Cg6b2JtGLxl?t=21836. 'U.S. Census, 2017 5 Year American Community Survey. U.S. Census, 2017 5 Year American Community Survey. Nolumes/Shared/Kingsley Management Companyno0 Litigation/Kingsley V City Of Santa Ana/010 Correspondence/2022.10-13 Correspondence To City Regarding Implementation Of Rent Board V4.Docx