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NEWSLETTER
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CITY
LITIGATION
DISMISSAL
WITH PREJUDICE OBTAINED IN FEDERAL CIVIL RIGHTS ACTION
Senior Litigator
Harold W. Potter obtained a dismissal with prejudice in a federal civil
rights action brought by a convicted armed robber attempting to collaterally
attack his criminal conviction against the City of Fullerton and several
individual officers. United States District Court Judge David O. Carter
granted Potter's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
on January 24, 2003.
Plaintiff sought
monetary damages and attorney fees pursuant to 42 U.S.C. sections 1983
and 1988, on a theories that law enforcement officers failed to investigate
exculpatory evidence provided by plaintiff in the form of an alibi witness
at the time the alleged robberies took place; that officers obtained
improper eyewitnesses identification by using impermissibly suggestive
identification procedures; and that officers otherwise conspired to
deprive plaintiff of his civil rights, leading to his wrongful criminal
conviction.
Plaintiff was
incarcerated in various state and county facilities from November 4,
1999, until his release date of July 6, 2001. Plaintiff filed the action
on the one year anniversary after the date of his release.
Heck v. Humphrey,
512 U.S. 477, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994), makes it clear
that a civil rights plaintiff cannot collaterally attack a criminal
conviction in civil court unless he alleges the criminal conviction
has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a determination,
or called in question by a grant of federal habeas corpus. However,
this rule does not apply, according to the subsequent United States
Supreme Court decision in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct.
978, 140 L.Ed.2d 43 (1998), to former prisoners no longer in custody.
The Ninth Circuit
recently ruled, however, in Cunningham v. Gates, 312 F.3d 1148
(9th Cir. 2002), which interprets Spencer, that if a criminal
conviction arising out of the same facts stands, and is fundamentally
inconsistent with the unlawful behavior for which damages are sought,
the section1983 action must be dismissed, regardless if one is out of
custody. Thus, unless a convicted criminal defendant can set aside his
conviction, even after his release, he is barred from bringing a 42
U.S.C. section 1983 cause of action, alleging misconduct for actions
upon which his conviction is based.
POLICE
LITIGATION
FAVORABLE
DECISION IN ARBITRATION MATTER FOR LOCAL POLICE DEPARTMENT
Greg Palmer received
a welcome decision on an arbitration matter he was handling for a local
southern California police department. In this matter, a sworn police
employee was being served with disciplinary notice papers concerning
a three day suspension for failing to properly ensure that an officer
filed a use of force incident report as required by the rules and regulations.
The employee became angry and accused the official providing the employee
with the notice that his breath smelled like alcohol and that he had
been drinking. The employee repeated the allegation to the official's
commanding officer and an investigation was begun on the official.
No evidence was
obtained whatsoever which formed any basis for the allegation that the
official had been drinking. Indeed, the paucity of information supporting
the allegations led to the internal affairs investigation switching
focus to the employee's allegation being false. The employee recanted
the allegation, indicating that the employee simply thought the official
smelled like he had been drinking, but then later repeated the allegation
he had been drinking to another individual which was overheard by another
department member.
The employee was
terminated for making a false allegation about the official drinking
on duty, as well as making other dishonest statements in the internal
affairs interview. An arbitration was held over a three day period of
time with Arbitrator Alexander Cohn. He issued his decision in January,
2003, upholding the dishonesty charge and the termination.
He noted in his
decision that the case presented a very close question, but what turned
the case around for him, and compelled him to rule for the department,
was the fact the employee recanted and then was overheard making the
same allegation afterward. The way Arbitrator Cohn put it was that the
employee "Let the genie out of the bottle and couldn't get it back in."
NEW
ACTS:
CALIFORNIA VOTING
RIGHTS ACT OF 2001
On July 9, 2002,
Governor Gray Davis approved the California Voting Rights Act of 2001
("the Act") which adds Chapter 1.5 (commencing with Section 14025) to
Division 14 of the California Elections Code, relating to voting rights.
In particular, the Act expands on voting rights granted under the federal
Voting Rights Act by, among other things, granting standing to groups
who are too geographically dispersed to elect their candidate of choice
from a single member district.
The
Act provides that an at-large method of election may not be imposed
or applied in a manner that results in the dilution or abridgment of
the right of registered voters, who are members of a protected class,
by impairing their ability to elect candidates of their choice or to
influence the outcome of an election. Cal. Elec. Code § 14027 (2003).
The Act also provides
that a violation of its provisions shall be established if it is shown
that racially polarized voting occurs in elections for governing
board members of a political subdivision, among other things. Cal. Elec.
Code § 14028 (a) (2003). "Racially polarized voting" means voting in
which there is a difference in the choice of candidates or other electoral
choices that are preferred by voters in a protected class, and in the
choice of candidates and electoral choices that are preferred by voters
in the rest of the electorate. Cal. Elec. Code § 14026 (e) (2003). An
intent to discriminate against a protected class is not required to
establish a violation of this act. Cal. Elec. Code § 14028 (d) (2003).
The Act also authorizes
a court to impose appropriate remedies, including district-based elections,
and to award a prevailing nonstate or nonlocal government plaintiff
party reasonable attorney's fees and expenses consistent with specified
case law as part of the costs. Cal. Elec. Code §§ 14029, 14030 (2003).
It also permits a member of a protected class to file an action pursuant
to this bill under specified circumstances. Cal. Elec. Code § 14032 (2003).
The Act provides that the methodologies
for estimating group voting behavior as approved in applicable federal
cases, to enforce the federal Voting Rights Act (42 USC Sec. 1973 et
seq.) to establish racially polarized voting, may be used to prove that
elections are characterized by racially polarized voting. Cal. Elec.
Code § 14026 (e) (2003).
The United States Supreme Court has held
that three preconditions must be satisfied before a plaintiff can proceed
to a vote-dilution challenge: (1) the minority group must be able to
demonstrate that it is sufficiently large and geographically compact
to constitute a majority in a single-member district; (2) the minority
group must be able to show that it is politically cohesive; and (3)
the minority must be able to demonstrate that the white majority votes
sufficiently as a bloc to enable it-in absence of special circumstances,
such as the minority candidate running unopposed-usually to defeat the
minority's preferred candidate. Person v. Brown, 312
F.3d 1036, 1040 (2002) (citing Thornburg v. Gingles, 478 U.S.
30, 50-51 (1986)). The "minority preferred candidate" is the candidate
who receives sufficient votes to be elected if the election were held
only among the minority group in question. Ruiz v. City of Santa
Maria, 160 F.3d 543, 552 (1998).
Although the United States Supreme Court
requires a plaintiff to satisfy these preconditions prior to a vote-dilution
challenge under federal law, it is not clear as to whether California
courts would adopt these preconditions in a challenge for violation
of the Act.
After a plaintiff has satisfied the three
preconditions, federal courts resolve a vote-dilution claim that a minority
group has had less opportunity to participate in the political process,
and to elect representatives of their choice, by evaluating the "totality
of the circumstances." Person v. Brown, 312 F.3d 1036, 1040 (2002).
Under the Act, the "totality of the circumstances,"
can be evaluated by using factors provided by section 14027 of the Elections
Code. Cal. Elec. Code § 14027 (e) (2003). Those factors are: (1) the
history of discrimination; (2) the use of electoral devices or other
voting practices or procedures that may enhance the dilutive effects
of at-large elections; (3) denial of access to those processes determining
which groups of candidates will receive financial or other support in
a given election; (4) the extent to which members of a protected class
bear the effects of past discrimination in areas such as education,
employment, and health, which hinder their ability to participate effectively
in the political process; and (5) the use of overt or subtle racial
appeals in political campaigns. Cal. Elec. Code § 14028 (e) (2003).
These factors are probative, but not essential factors to establish
a violation of the Act. Cal. Elec. Code § 14028 (e) (2003).
In addition, the United States Supreme
Court has utilized other factors that have been articulated in cases
dealing with violation of the Federal Voting Rights Act. Thornburg
v. Gingles, 478 U.S. 30, 44-45 (1986). Those factors are: (1) the
extent to which voting in the elections of the state or political subdivision
is racially polarized; and (2) the extent to which members of the minority
group have been elected to public office in the jurisdiction. Id.
Should you have questions about the potential
impact of the Act on your jurisdiction, please contact our associates
Kimberly Hall Barlow or Thien-Vu Ngo.
NEW
BROWN ACT REQUIREMENT: CALIFORNIA GOVERNMENT
CODE § 87105
A new law effective January
1, 2003, added Section 87105 to the California Government Code, relating
to the Political Reform Act of 1974. In particular, California Government
Code Section 87105 requires a public official who has a financial interest
in a decision to take the following steps: (1) publicly identify the
financial interest giving rise to the conflict of interest or potential
conflict of interest in detail sufficient to be understood by the public,
except that disclosure of the exact street address of a residence is
not required; (2) recuse himself or herself from discussing and voting
on the matter; and (3) leave the room until after the discussion,
vote, and any other disposition of the matter is concluded, unless the
matter has been placed on the portion of the agenda reserved for uncontested
matters. Cal. Gov. Code § 87105 (a) (1)-(3) (2003). Notwithstanding
the third requirement, a public official may speak on the issue during
the time that the general public speaks on the issue. Cal. Gov. Code
§ 87105 (a) (4) (2003).
Should you have questions about the Act,
please contact our associates Kimberly Hall Barlow or Thien-Vu Ngo.
MISCELLANEOUS
LEGAL ISSUES
THE
SHERIFF - A CONSTITUTIONAL OFFICER - WHAT DOES IT MEAN?
Article XI, Section
4 of the California Constitution requires county charters to provide
for an elected sheriff.* This requirement was added by the approval
of California voters in 1978. There is some dispute about the exact
nature and extent of this provision, however, and we have been involved
in numerous cases dealing with varying aspects of this provision, which
are summarized below. We are hopeful to have definitive law on the interpretation
of this provision in the future.
On behalf of the
California State Sheriffs' Association ("CSSA"), we prepared an amicus
curiae brief to the United States Supreme Court in support of a petition
for review in Brewster v. Shasta County, 123 S. Ct. 75 (2002).
The petition was seeking Supreme Court review of a decision by the Ninth
Circuit Court of Appeals holding that the Sheriff, in investigating
a crime, was acting on behalf of the county and not the state, and,
therefore, was not immune to liability under 42 U.S.C. § 1983. We pointed
out to the Supreme Court aspects of California law, including the constitutional
provision noted above, which indicate that the Sheriff, in investigating
crimes, is independent from the county and acts on behalf of the state.
The Supreme Court did not grant review of the case.
There is now,
therefore, a split of authority in the State of California. There is
the Ninth Circuit decision that still remains good law in Brewster
v. Shasta County, 2001 U.S. App. LEXIS 27544 (2001), and there is
a state Court of Appeal decision in Harmon v. Superior Court,
329 F. 2d 154 (1964), which issued a contrary opinion, holding that
the sheriff's department, in detaining an individual, acted on behalf
of the state and was immune from liability under Section 1983.
Likewise, we are
in the heart of litigation between the Sheriff and the Board of Supervisors
in the County of San Bernardino, regarding Standards of Conduct imposed
by the Board upon all county officers. In this pending matter, we have
again asserted the independence of the Office of Sheriff. The Board
adopted Ordinance No. 3863, which imposed certain standards of conduct
on, as well as reprimand and removal procedures for, various county
officials, including the Sheriff. The Court initially granted a temporary
restraining order in the matter, but subsequently, pending trial, would
only grant a preliminary injunction as to those matters relevant to
reprimand of the Sheriff, as a violation of the Peace Officers' Bill
of Rights. A trial will be held on the issues relating to the constitutional
independence of the Sheriff in June.
Similarly, the
Los Angeles County Board of Supervisors submitted a ballot measure,
which was approved by the voters in the March 2002 election, imposing
term limits on the Board itself, as well as the Sheriff. We recently
filed a complaint challenging this action as a violation of law. There
is statutory authority, in the California Government Code, only for
term limits to be imposed upon the Board of Supervisors. In addition,
we emphasized the independence of the Office of Sheriff, pursuant to
the constitutional provision cited previously in this article, which
prevents the Board, absent statutory authority, from controlling the
Office of Sheriff in this manner.
Ultimately, there
may need to be a final resolution of the issues raised in these matters,
including the independence of the Office of Sheriff, by the California
Supreme Court. The ballot materials which were presented to the voters
as part of the approval of the existing portion of Article XI, Section
4, relating to an elected Sheriff, indicate that the intent was to insure
an independent Sheriff. The legislative history of this provision will
play an important role in our future representation of these matters.
* Of the 58 counties
in the State of California, there are 13 with charters, as follows:
Alameda, Butte, El Dorado, Fresno, Los Angeles, Orange, Placer, Sacramento,
San Bernardino, San Diego, San Francisco, San Mateo, Santa Clara, and
Tehama.
PREPONDERANCE
OF THE EVIDENCE AND ADMINISTRATIVE HEARINGS
Although
it is sometimes suggested that clear and convincing evidence, or
even "proof beyond a reasonable doubt," is the standard or measure by
which administrative charges of misconduct must be proven, there is
a substantial body of law holding that a preponderance of the evidence
is the standard or "quantum of proof" by which administrative misconduct
charges are weighed.
"Preponderance
of the evidence" means that evidence which persuades a reasonable person
that the fact at issue is more likely than not true. Glage v. Hawes
Firearms Co., 226 Cal.App.3d 314 (1990); John A. v. San Bernardino
City Unified School District, 33 Cal.3d 301 (1982).
The leading case
holding that the preponderance of evidence applies to disciplinary appeals
of public employees is Chamberlain v. Ventura County Civil Service
Comm'n, 60 Cal.App.3d 363 (1977). In Chamberlain, the Petitioner
challenged on the ground that the charges against him were not proven "to a reasonable certainty. Id. at 365." The court held that
the term "weight of the evidence," is synonymous with "preponderance
of the evidence" and that is the burden of proof in such an administrative
proceeding rather than the "clear and convincing" test. Id. at
367-69. Accord, Gardner v. Comm'n On Professional Competence,
164 Cal.App.3d 1035 (1985).
As recently as
1995, the State Supreme Court held that, in disciplinary proceedings,
the City "bears the burden of proof of a preponderance of the evidence
that the employee engaged in the conduct on which the discipline charge
is based and that such conduct constitutes a cause for discipline."
California Correctional Peace Officers Assn. v. State Personnel Board,
10 Cal.4th 1133, 1153 (1995).
This is true even
where the charges are criminal in nature. Western Electric Co. v.
Workers' Compensation Appeals Board, 99 Cal.App.3d 629 (1979).
Therefore, unless
there is a local rule, ordinance or provision of a labor agreement to
the contrary, the standard or quantum of proof for administrative charges
of misconduct is a preponderance of the evidence.
FIRM
NEWS:
ATTORNEY
SPOTLIGHT: MARTIN
J. MAYER, ESQ.
Martin Mayer received
his undergraduate degree from the City University of New York and his
law degree from St. John's University, also located in New York. Mr.
Mayer is admitted to practice law in all lower courts in the states
of New York and California, the United States Federal Courts, and the
United States Supreme Court.
Mr. Mayer limits
his practice to representing cities, counties and the State as legal
advisor to their Chiefs of Police or Sheriffs and in that capacity represents
approximately seventy agencies throughout California. In addition, the
Firm serves as the City Prosecutor for thirteen municipalities.
Prior to joining
the Law Office of Jones & Mayer, Mr. Mayer was a partner at the
firm Mayer & Coble, a firm specializing in providing City Prosecutor
services and legal advice to police and sheriffs departments. Prior
to establishing the Mayer & Coble firm, Mr. Mayer worked with the
League of California Cities for four years as Director of its Criminal
Justice Planning Unit.
Mr. Mayer lectures
extensively on matters involving civil liability and law enforcement
on behalf of the California POST Commission, California Peace Officer's
Association, California State Sheriff's Association, the Department
of Justice, and Americans for Effective Law Enforcement. Mr. Mayer was
a member of the faculty of California State Polytechnic University,
Pomona, Kellog West, for eight years, teaching in their Executive Development
Program for law enforcement managers.
Mr. Mayer serves
as Legal Advisor to the California Police Chief's Association, the California
State Sheriff's Association and the California Peace Officers' Association.
He also served, for ten years, as the State Chairman of the Police Legal
Advisors' Committee for the California Peace Officer's Association.
Mr. Mayer is a graduate of the Sixth FBI National Law Institute at Quantico,
Virginia and was the first attorney in private practice to be included
in the program. Mr. Mayer also served as a POST certified reserve with
the Downey Police Department for approximately nine years. Mr. Mayer
also serves as a member of, and legal advisor to, the Advisory Council
for the National Law Enforcement and Corrections Technology Center (Western
Region) which is funded by the National Institute of Justice and the U.S. Department
of Justice.
UPCOMING
EVENTS
Martin
J. Mayer:
February 5, 2003
- Police Officers Standards and Training "Management Course," San Diego,
California.
February 12, 2003
- California Police Chiefs Association (CPCA) Conference, "Leadership
Development Training," Oakland, California.
February 19-20,
2003 - California Police Officers Association (CPOA) "Legal Update," Rancho Cordova, California.
February 26, 2003
- San Luis Obispo Sheriffs Office, "Liability Issues for Law Enforcement
Managers."
Gregory
Palmer:
February 20, 2003
- Orange County City Attorney's Luncheon, Fountain Valley Claim Jumper. "Pitchess Law Update."
February 25-26,
2003 - Public Records Act Class; Newport Beach Police Department, California.
Harold
W. Potter:
June 18, 2003
- Panel Discussion re: "Local Government and the Law: Understanding
the Legal Issues That Affect Local Government Decision-Making;" Pasadena,
California.
MCLE credits available for this
seminar. Please contact Lorman Education Services (888) 678-5565 or
www.lorman.com.
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