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In the first reported interpretation of a 2021 amendment to CEQAs statute of limitations provisions, the First District Court of Appeal addressed whether an action against a lead agency must be dismisseddespite being filed within the limitations periodbecause of a failure to [timely name and serve] necessary third parties. Save Berkeleys Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al.), 70 Cal.App.5th 705 (2021). Acknowledging that the Legislature sought to provid[e] a bright-line rule as to which persons must be named [and served] in the CEQA complaint, the Court nonetheless decided that Code of Civil Procedure Section 289(b)s equitable test for determining indispensability still applies to determine whether an incurable failure to timely name and serve real parties requires dismissal of the entire action.

The Regents of the University of California filed a notice of determination on May 17, 2019, regarding certification of a Supplemental Environmental Impact Report analyzing an academic building, campus housing and parking project approved by the Regents for the Berkeley campus. The NOD identified American Campus Communities and the Collegiate Housing Foundation as the parties undertaking the project. Save Berkeleys Neighborhoods June 13, 2019 petition for a writ of mandate failed to name either ACC or CHF. A first amended petition filed on September 18, 2019, added ACC and CHF as real parties in interest, and a first amendment to the first amended petition subsequently sought to add various ACC entities as real parties.

ACC and CHF argued that the incurable failure to timely name and serve persons identified on a NOD as undertaking a project requires dismissal. The First District rejected this argument, relying on legislative history to resolve textual ambiguities in Section 21167.6.5 and preserve the applicability of an equitable indispensable party analysis in CEQA actions.

Prior to 2012, Public Resources Code Section 21167.6.5(a) required that any recipient of an approval be named and served in CEQA actions as real parties in interest. However, then-applicable PRC Section 21108(a) did not require state agencies to identify the recipient of an approval on NODs. Courts enforced Section 21167.6.5(a) by 1) identifying the approval subject to challenge and the recipients thereof, and then 2) applying Code of Civil Procedure Section 389(b)s equitable balancing test to determine whether unnamed approval recipients were indispensable such that an incurable failure to name them requires dismissal of the entire action.

Assembly Bill 320 (2012) amended Section 21108(a) to require state agencies to identify on notices of determination those undertaking a project supported by contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies or that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. Public Res. Code 21065(b) and (c). AB 320 also amended Section 21167.6.5(a) to replace the phrase any recipient of an approval with the person or persons identified by the public agency in its notice filed pursuant to Section 21065(b) or (c).

The Court of Appeal held that amended Section 21167.6.5(a) does not require dismissal for failure to timely name and serve as real parties those identified on a NOD as undertaking a project. It ruled that the use of shall in 21167.6.5(a) (The petitioner or plaintiff shall name, as a real party in interest ) only requires that parties shall file and serve the real parties in interest within a limitations period Failure to do so excludes real parties in interest from the action. The statutory language does not expressly condition a petitioners ability to bring suit upon the inclusion of the real parties in interest.

Having found AB 320s amendments left Section 21167.6.5(a) silent as to the impact on a partys failure to name and serve the real parties in interest, the Court of Appeal concluded that the Legislature sought only to eliminate uncertainty arising from parties and courts independently assess[ing] which entities qualified as recipients of an approvalnotoriously complex inquiries often involving numerous sub-inquiries. The Legislature, however, did not address the courts use of CCP Section 389(b)s equitable balance test to determine indispensability. Reviewing the legislative history, the court noted that the Senate deleted a provision in the Assembly version of the bill that allowed a CEQA legal action to be dismissed for failure to serve the recipients of the lead agencys approval with the petition or complaint. The opinion also referenced the Legislatures expressed intent to prevent the dismissal of important and meritorious CEQA cases, observing that [t]he approach advocated by appellants would increase dismissal of CEQA cases.

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Failure to Timely Name and Serve Real Parties In Interest Does Not Warrant Dismissal Of An Entire CEQA Action if The Unnamed Parties Are Not...

Omicron is still raging across the country, but this holiday season it was houses of worship, not the state, that decided whether to gather or move celebrations online.

Governors and mayors are still issuing restrictions in the name of safeguarding the public, like requiring vaccine passports. But they are not shuttering houses of worship the way they did early in the pandemic.

That may be because last year, the U.S. Supreme Court erected a firewall around religious liberty. And that firewall appears to be holding.

In Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, the court schooled the executive branch: (T)he Constitution cannot be put away and forgotten.

The high court overturned restrictions in California, Nevada and New York that regulated worship more harshly than economic activity. For instance, Nevada capped religious services at 50 people, while casinos could operate at 50% capacity. California even encroached on in-home worship, prohibiting more than three families from worshipping in a persons home or backyard.

Many people reflexively side with public health, for good reason. The coronavirus has yet to relinquish its grasp on society. But we cannot overlook the degree to which worship was relegat(ed) to third-class citizenship, as charged by the South Bay United Pentecostal Church, which twice reached the Supreme Court in challenging Californias orders.

In early 2020, South Bay simply wanted to open. California said no one could safely worship, even in the most cavernous cathedral. In May 2020, California allowed 100 worshipers. South Bay wanted to serve more. The church pointed out that California permitted factories and restaurants to reopen with safeguards; why couldnt the church?

That same month, the Supreme Court narrowly sustained Californias 100-person cap on worship gatherings, citing a century-old case holding that (o)ur Constitution principally entrusts (t)he safety and the health of the people to the politically accountable officials of the States.

But by February 2021, with vaccines becoming available, the court lost patience. Lacking sufficient justification, it struck the cap. Deference, though broad, has its limits, Chief Justice John Roberts noted.

Many ascribe the Supreme Courts intolerance of worship restrictions in 2021 to the addition of Justice Amy Coney Barrett, but the justices were simply applying precedent.

Singl(ing) out houses of worship for especially harsh treatment draws strict scrutiny, the Supreme Court held in 1993. This means that the government must show a compelling interest and no less restrictive means to achieving exceedingly important ends. Yet these orders read like edicts, Justice Neil Gorsuch would later say, because almost no explanation was given.

Californias orders are a prime example. In press conferences about the states 100-person cap, Gov. Gavin Newsom cited stock CDC guidance about the need to contain the contagion given spiraling case numbers. When asked by reporters why he was applying specific and different caps on places of worship and not schools, Newsom said, Perfects not on the menu.

He did not explain what factors guided Californias categories or why people mixing from far and wide in an enclosed space was a problem in church, but not in factories. The Constitution and the First Amendment were nowhere mentioned.

Two Californians sued over the restrictions on in-home worship. They challenged why they could watch John Legend sing outdoors ... (but not) host their faith community in their backyard.

True, worship gatherings had acted as super-spreaders early on. But so had factories, meatpacking plants and nursing homes. According to California, factories were safe because entry could be staggered. But the litigants offered to stagger the congregants entry and implement requirements for social distancing and masks.

Calvary Chapel in Nevada sued Gov. Steve Sisolak twice, asking to host worship services on the same terms as casinos at 50% capacity, not just 50 people.

Gorsuch skewered the disparity: (T)here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Later, the federal courts struck Nevadas scheme as discriminatory, violating the First Amendment.

New York also violated a cardinal First Amendment rule. It created cluster zones, with the tightest restrictions in the center and looser ones moving outward. On CNN, then-Gov. Andrew Cuomo blamed the ultra-Orthodox community for creating clusters. Catholic schools happen(ed) to be in the zone, too.

In red zones, houses of worship could accommodate 10 or fewer people, yet essential businesses like warehouses faced no caps. In yellow zones, places of worship were capped at 50% capacity; restaurants in yellow zones at that time had no cap on the total number seated.

Agudath synagogues and Brooklyns Roman Catholic Diocese both sued Cuomo, charging that he was targeting religion.

During litigation, the governors experts could cite no evidence of spread from the Orthodox community and admitted that the Brooklyn diocese was in fact taking the necessary precautions, just as essential businesses do.

The Supreme Court struck New Yorks policy, finding that it discriminated against people of faith.

Adding insult to injury, all three states permitted places of worship to reopen only after services deemed essential, like liquor stores and bike shops.

These ill-constructed orders were expensive. All three states paid hundreds of thousands of dollars in attorneys fees. Thankfully, during this holiday season, governments have not retread these orders.

If omicron or another variant forces more restrictions, governors and mayors would do well to construct coherent policies and transparently explain them from the beginning. Asking people to forego worship, an important source of support during crisis, should only happen when governments articulate the criteria for restricting core liberties in such a way that all of us can understand the need.

Robin Fretwell Wilson holds the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and is a Public Voices fellow with The OpEd Project.

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COVID and churches: Can the government force churches to close? - Deseret News

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More than 200 Marines have been booted from the United States military for refusing to submit to a coronavirus vaccine.

Fox News confirmed Thursday that 206 U.S. Marines have been kicked out of the military since late November for refusing to take the vaccine.

BIDEN'S VACCINE MANDATE WILL DECIMATE OUR MILITARY

A @USMC Marine assists a woman and child during an evacuation at Hamid Karzai International Airport in Kabul, Afghanistan. #HKIA (Department of Defense)

Secretary of Defense Lloyd Austin on Aug. 25 directed all military branches to ensure service members receive the vaccine as the number of cases surged over the summer. The deadlines for each branch of the military passed as of Dec. 15, and disciplinary action appeared to immediately follow.

Several Marines who refused to get the shot were granted anonymity by Fox News Digital, so they could speak freely. They said they are witnessing a "political purge" by the Biden administration that is forcing out the militarys "best and brightest" over deeply held beliefs they say are protected by the First Amendment.

"Theres something fundamentally wrong at this point with our nations leadership," said a major with more than 17 years of active service. "We are facing an unconstitutional edict that I think is very targeted as a political purge, taking out some of the best and brightest soldiers, sailors, airmen, Marines, and guardians from the Space Force."

MIAMI, FLORIDA - DECEMBER 29: A healthcare worker conducts a test at a drive-thru COVID-19 testing site at the Dan Paul Plaza on December 29, 2021 in Miami (Photo by Joe Raedle/Getty Images)

The Marines who spoke with Fox News said they were on the receiving end of a "blanket" denial of religious exemptions, with their applications being rejected without consideration. Eight separate letters of denial provided to Fox News were nearly identical, citing "military readiness" as the primary reason for rejection.

BIDEN MAKING 'GRAVE MISTAKE' ENFORCING MILITARY VACCINE MANDATE, REPUBLICANS WARN

"I saw one package from a sergeant who had attached, like, 30 pages of material to substantiate why his belief was sincere, under no lawful obligation to do so," the master sergeant said. "And then to have this as a response with no individual inquiry and just a generalized assertion of governmental interest is insulting."

Earlier this month, California Rep. Darrell Issa led a group of Republicans in sending a letter to Biden saying he was committing a "grave mistake" in enforcing his military vaccine mandate.

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"As the father of a major in the Judge Advocate General Corps who honorably served our nation in a foreign combat theater, you can fully and uniquely appreciate the sacrifices that our veterans make for America," the letter said. "There is simply no good reason to charge forward, decline all deliberation and recklessly damage perhaps irreversibly our nations security and force readiness," they wrote.

Defense Secretary Lloyd Austin holds a briefing in Tbilisi on Oct. 18, 2021. (VANO SHLAMOV/AFP via Getty Images)

The Army said that 98% of its active-duty force had gotten at least one shot, the Marine Corps said 95% of its force had gotten at least one dose, 97.5% of the Air Force and Space Force have gotten at least one shot and 98.4% of the Navy is fully vaccinated.

The White House did not immediately respond to a request for comment from Fox News.

Fox News Jessica Chasmar and Julia Musto contributed to this report

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More than 200 Marines have been discharged from military due to vaccine refusal - Fox News

In this daily series, Newsweek explores the steps that led to the January 6 Capitol Riot.

On December 30, just a week before January 6, the FBI, along with the Department of Homeland Security and the National Counterterrorism Center, issued an intelligence report"Intelligence in Depth"titled "Diverse DVE Landscape Probably Will Persist." DVE refers to domestic violent extremists.

The report, shared exclusively with Newsweek, did not mention the election or Donald Trump. No mention was made of the impact of COVID. No mention was made of the two post-election protests that had already taken place in Washington DC, on November 24 and December 12, or any upcoming threats. In fact, there was no focus on the nation's capital at all.

The report covered all bases but focused on none. It's a mishmash of contorted acronyms, codes to neutrally describe what the intelligence agencies saw as the threats on the American battlefield, but careful not to explicitly label any one group. White supremacists were referred to as Racially Motivated Violent Extremists (RMVE). There were also Anti-Government or Anti-Authority Violent Extremists (AGAAVEs), Anarchist Violent Extremists (AVEs), Militia Violent Extremists (MVEs), and Sovereign Citizen Violent Extremists (SCVEs). There were others mentioned, some with and without acronyms: Abortion-Related Violent Extremists, Animal Rights/Environmental Violent Extremists and Puerto Rican National Violent Extremists.

The common linking characteristic in all of this was the term "extremist." Yet the December 30 report offered no explicit definition of what precisely was an extremist. Domestic Violent Extremists were described as "individual[s] based and operating primarily within the United States or its territories without direction or inspiration from a foreign terrorist group or other foreign power who seeks to further political or social goals wholly or in part through unlawful acts of force or violence."

A government definition of extremism is hard to come by. The definitive Department of Justice bible on the subject, "Investigating Terrorism and Criminal Extremism: Terms and Concepts," nevernot in 120 pagesdefines what extremism means. Nor does the new Department of Defense "Report on Countering Extremist Activity Within the Department of Defense," issued just this month. It merely says that members of the armed forces are restricted from participating in "extremist activities" that include "unlawful force, unlawful violence, or other illegal means to deprive individuals of their rights under the United States Constitution or the laws of the United States." The Pentagon says that this includes supporting "the overthrow of the government" and "goals that are political, religious, discriminatory, or ideological in nature." That's a fairly broad spectrum.

Few people would dispute that those who seek to further their political goals "through unlawful acts of force or violence" should be the subject of federal law enforcement attention, but without a definition of extremism, and with such a broad category of wildly different individuals and groups that fall under the domestic violent extremist umbrella, it is no wonder that the FBI had such a hard time paying attention to the many Americans who were openly threatening violence before January 6.

A senior retired FBI executive, who spoke to Newsweek on condition that his name not be used because he fears retaliation by the very extremists he is talking about, says that he sees two major constraints on the Bureau's domestic terrorism efforts. First, he says, there is too much emphasis on organized groups and searching for conspiraciesa legacy of the organized crime and then al Qaeda emphasis focusing on thwarting and dismantling groups.

Second, he says, the federal government has tied itself into a bind over the proper protocol of even following or monitoring free speech while looking for possible threats. The December 30 report, for example, was careful to note that not all extremists were prone to violence, stating that "First Amendment"-protected protest was not per se a predicate for either federal attention or further FBI investigation.

"I understand that people might be skeptical that the FBI actually safeguards civil liberties, but in today's Bureau, it's more true than false," the FBI executive says. "Yes, there have been many historical examples of overreach, [but] this level of care is equally applied to right and left."

The FBI stated in its 2021 domestic terrorism report to Congress: "Under FBI policy and federal law, no investigative activity may be based solely on First Amendment activity, or the apparent or actual race, ethnicity, national origin, religion, gender, sexual orientation, or gender identity of the individual or group. The FBI does not investigate, collect, or maintain information on US persons solely for the purpose of monitoring activities protected by the First Amendment."

The executive says that post-January 6, with domestic terrorism a national issue and more emphasis on stopping attacks, previous constraints might loosen. But he still thinks that focusing on groupsProud Boys, Oath Keepers, etc.and imagining these groups are more powerful than they are, obscures the individuals and their actions that need to be detected and stopped.

Even after January 6, FBI Director Christopher Wray described the same vague threat picture as did the December 30 report in testifying before the Senate Homeland Security and Governmental Affairs Committees. Despite all that had happened, he still saw homegrown violent extremists (HMVEs)that is, "individuals radicalized here at home by jihadist ideologies espoused by foreign terrorist organizations like ISIS and al Qaeda"as the Bureau's number-one priority.

HMVEs are not to be confused with DVEs, yet they are mixed together in a way that suggests the two are equivalent. HMVEs (foreign influenced) and DVEs (non-foreign influenced), FBI Director Wray said, have a commonality in that the biggest actual threat is from so-called "lone" wolves.

According to Wray, the Bureau is "countering lone domestic violent extremists radicalized by personalized grievances ranging from racial and ethnic bias to anti-government, anti-authority sentiment to conspiracy theories."

Wray previously told the House Oversight and Reform Committee that, "over the last year, we observed activity that led us to assess there was potential for increased violent extremist activity at lawful protests taking place in communities across the United States."

The FBI says that in response to these threats, it authored 12 formal intelligence reports in 2020 relating to potential domestic terrorism. In 2019, the FBI produced 15 domestic terrorism related reports. (Each year, the FBI produces about 1,000 domestic terrorism related intelligence products.) In late August 2020, Wray says, the FBI published an analytical report "informing our partners that DVEs with partisan political grievances likely posed an increased threat related to the 2020 election.

"In that product, we noted that DVE responses to the election outcome might not occur until after the election and could be based on potential or anticipated policy changes," Wray said. In December 2020, he says, the FBI also contributed to a Department of Homeland Security Intelligence In-Depth product, which stated that the diverse DVE landscape "would probably persist due to enduring grievances."

That would be obvious to any observer. The FBI, in its formal intelligence reporting, seems to have missed the signs completely.

"The FBI and our federal, state, and local partners collected and shared intelligence and relevant public safety-related information in preparation for the various planned events" on January 6, Wray claims. But there is no evidence that any of that sharing had any impact, according to the testimony of numerous U.S. Capitol Police and Metropolitan Police Department officials.

Just this past September, Wray told Congress how much "the threat" had changed 20 years after the attacks on the Pentagon and the World Trade Center. "It was 9/11, after all," he said, "that turned the FBI into an agency focused on disrupting threats."

But when a national threat and a catastrophic event loomed in late 2020, FBI bureaucrats not only didn't disrupt it, they didn't even see it coming.

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Exclusive: Secret Threat Report Named Everyone Except Angry Donald Trump Voters - Newsweek

Voter suppression fears are justified

The writer of a Dec. 28 letter on votingmade amisstatement in suggestingthat President Joe Biden is not telling the truth about voter suppression. The facts argue otherwise.

Various nonpartisan entities have fact-checked former President Donald Trumps "Big Lie" about so-called voter fraud. An investigation by The Associated Press revealed that outof 25.5 million votes in the sixbattleground states during the 2020election, the total of votes that could legitimately calledfraudulent amounted to just475 and some of those were cast for Trump!

That's whyit is universally recognized that even if all of these apparently fraudulent voteswere cast for Biden, it would not have made a scintilla of difference in the presidential election. And well before Trump was a candidate, states that have been using millions of mail-in ballots have been doing sofor many years without any significant fraud.

The issue was only raised byTrumpers after their candidates legitimate loss. Soto suddenly propose ID laws on the false claim of voter fraud isdisingenuous at least, and cynically wicked at worst.

More: Herald-Tribune: How to send a letter to the editor

Biden is indeedtelling the truth: the right-wing radicals whoare trying to suppress the vote areattempting to bring back Jim Crow voting restrictions. If they succeed, we will loseour democracy and we will slip into autocracy.

Stephen Japhe, University Park

Homeowner surprised by rude behavior

After last weeks wind eventI hauled two barrels of yard waste, mostly palm fronds, to my front yard for Tuesday pickup. But instead of loading the materials, the truck driver justdumped themon the ground.

When I confronted him, the truck drivertold me that the yard waste was too heavy and was not packed correctly. I am 75 years old, and I carried the same barrels at least 200 feet to the curb.

I suggested to the truck driver thatif he couldnt deal with something that someone at least twice his age could handlewith ease, then maybe he should join a gym or get a desk job. His response was, I dont give (an expletive).

I would expectthe Venice public works department todemand a bit more courtesy and professionalism from an employee who, in my opinion, has a pretty good gigespecially in comparisonto what manyother peopleare experiencing during these difficult times.

I imagine that there may be a lot of folks out there who would love to have hisjob.

Reg Grover, Venice

Challenging times for our democracy

In 1787Benjamin Franklin foresaw the possibility that the new democracy being formed could fail.A founding father of our Constitution, Franklin was asked if the new government was a republic or a monarchy. He replied, A republic, if you can keep it.

These ominous words are relevant today. The visionary leader believed that inherent in the ambitious goal of self-government deemed an experiment at the time wouldbe the rise of troubling issues that wouldthreaten its viability.

Were facing such a challenge right now. Theres disruptive disagreement among our Republican and Democratic leaders regarding the policies and legislation needed for our country to advance.The deadlock they havecreated not only stymies the enactment of fresh legislation it also perpetuates the dissension.

The question at hand is what measures these lawmakers can introduce to resolve this turmoil to form a more perfect Union, the centuries-long goal and history of our democracy.

JohnMarcus, Sarasota

Expose hate speech - don't silence it

The guest columnists from Support Our Schools stated that children are entitled to a modern education in a safe and inclusive environment. Although I find the Proud Boys organization reprehensible and I deplore their use of violenceI dont believe the answer is exclude them from public debate.

Even hate speech is protected by the First Amendment. In the 2017 Supreme Court case Matal v. Tam, for example, Justice Samuel Alito quotedJustice Oliver Wendell Holmes Jr.'s dissent fromUnited Statesv. Schwimmer in 1929:. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.

Justice Holmes statement has become a central principleof First Amendment thought.

Inclusivity requires that our children be exposed to all points of view, even the ones we detest, so that they may learn to evaluate critically and decide which positions are the most consistent with their values and so they may learn to reject speech which is hate-filled.

Hate speech will always be with us. But we can oppose and expose it not with silence, but with education and action. Show our children the harmful effects of hate speech. Support candidates whose positions more closely align with your own. Run for office.

Above all use your vote to send the message of inclusivity and brotherhood.

Leslie Curley, Venice

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Thursday's letters: Voter suppression, a rude city worker, the fate of democracy and more - Sarasota Herald-Tribune