Martin v. Municipal Court

Opinion

LOW, P. J.

Petitioner, Charles Henry Martin, faces prosecution in Santa Clara Municipal Court for violation of section 8665 of the Government

[695]

Code,

1

disobeying an emergency order of July 9, 1981, by Governor Edmund G. Brown, Jr. It is alleged that Martin did not strip his garden of Mediterranean fruit fly host material in the summer of 1981. Martin’s demurrer to the misdemeanor complaint was overruled. He petitioned the superior court in Santa Clara for a writ of mandate in March 1982, asking the superior court to order the municipal court to sustain the demurrer and dismiss the criminal charge. The superior court denied the petition, entered judgment and Martin appeals. We affirm.

The facts are generally not in dispute. The medfly’s presence in the Santa Clara Valley was first detected in the summer of 1980, the numbers increased, and on December 24, 1980, Governor Brown declared a state of emergency of medfly infestation. The situation worsened and on July 8, 1981, the Governor declared an “Amended Proclamation Of A State Of Emergency” which contained this language: “I, Edmund G. Brown Jr., . . . have found that conditions of extreme peril to the agricultural industry and the safety of agricultural properties exist within the Counties of Alameda, San Mateo, and Santa Clara . . . .”

Then on July 9, the Governor issued an “Emergency Proclamation Order No. 2” which read in part: “All persons residing within the quarantine area shall remove all Mediterranean fruit fly hosts from trees and plants located on their property by 5:00 p.m. on Monday, July 13, 1981.

“Any person who refuses or willfully neglects to obey any provision of this order shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not to exceed five hundred dollars ($500) or by imprisonment for not to exceed six months or by both such fines and imprisonment. (Government Code Section 8665.)”

On July 28, 1981, Martin was notified of the order to remove host materials, then warned again, followed by a demand that he strip his property. Martin refused. He proceeded to the Santa Clara Superior Court and petitioned for an injunction and restraining order which the court denied on July 31, 1981. Thereafter, pursuant to an inspection warrant, a state crew removed 210 pounds of host fruit from Martin’s property.