Archive for December, 2007

No damage award for violations of Right to Privacy

Monday, December 10th, 2007

The California Constitution includes a right to privacy that protects against both government and private snooping.  Prior cases have noted that individuals can win injunctive relief to enforce this right and prevent snooping in the future.  What relief is available, however, if all of the spy work has been completed?  According to the Court of Appeal in Richardson-Tunnell v. School Insurance Program for Employees, there is no claim for damages against the government.

Richardson-Tunnell was a school employee and suffered a back injury which required disc replacement surgery.  The school district wanted to know just how injured she was, so it hired Eye-Con Investigators to crash her wedding and video tape the ceremony and the reception and, for good measure, to use telephoto lenses to snap pictures of her and her husband sun-bathing while on their honeymoon.  Richardson-Tunnell sued for damages, claiming a violation of her constitutional right to privacy.

The Court of Appeal upheld the trial court’s dismissal of the action.  Public employees are immune, pursuant to Government Code §821.6, for liability resulting from investigations that could lead to administrative proceedings.  Even though the school district failed to raise this claim in its answer, this immunity is jurisdictional and cannot be waived.

Because of the statutory immunity, the court did not reach the question of whether the California constitutional right to privacy provides a cause of action for damages.  For now, the only available relief is to prevent future spying with an injunction.

Burned by the (lack of a) record

Friday, December 7th, 2007

Judge Kleinfeld let the Department of Justice know that he was on their side — if only they could have supported their case with a record and appropriate references in their brief.  The judge’s note appeared in his concurring opinion in Sierra Club v. Bosworth.  In that case, the 9th Circuit struck down the Forest Service’s categorical NEPA exemption for fuel reduction and prescribed burn projects in the National Forests.

Given the recent fires in Southern California and Lake Tahoe area, the subject of forest fire prevention is likely to excite spirited debate.  For his part, Judge Kleinfeld noted:

“I cannot bring myself to believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious.  And I cannot quite bring myself to believe that the categorical exclusion in this case, covering less then one half of one percent of federal land, will have a cumulative impact on our environment requiring years more research, analysis and report writing before we do anything to protect people from forest fires. …

Nevertheless, the government’s brief does not point us to anything in the record that supports my intuitive view. … The briefs and the record control, and the government has made no serious attempt to show us why the categorical exclusion was not arbitrary and capricious …  A judge’s duty is to decide the case based on the law and the record, not his personal policy preference.  I am therefore compelled to concur.”

Whether at the administrative hearing or the trial level, counsel should always anticipate the appeal and make sure that there will be an adequate record to support the appellate arguments.  As Judge Kleinfeld points out, once you are in the appellate court “the briefs and the record control.”

Arguing the facts? If so, you had better cite the record!

Wednesday, December 5th, 2007

Appellate counsel know that the most difficult argument to make on appeal is that the jury’s verdict is not supported by the substantial evidence.  Yet, if you are going to attempt to make that argument you must include adequate citations to the record in your brief.  Indeed, you are tasked with the duty to summarize the evidence — all the evidence — on the point being argued with appropriate citations to the record.  Failure to do so will inevitably lead to an appellate court ruling that you have failed to carry your “daunting burden.”

These points were noted in a published opinion from the 6th DCA this week in Schimidlin v. City of Palo Alto.  There, the court chastized the appellant for failing to comply with this rule of appellate practice.  The court noted: 

“Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force.  At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts.  This approach disregards the fundamental principles governing appellate review of factual findings.”

Ouch!  This is not the sort of thing you want to be reading about your brief in a published opinion.  Nonetheless, as Greg May points out over at California Blog of Appeal, this is an all too common error in appellate presentations.

I should point out that, at least in theory, it is not impossible to prevail on appeal by arguing that the verdict is not supported by substantial evidence.  But even a vanishingly small chance of success will disappear altogether if you do not give the appellate court the tools it needs to rule in your favor.  That includes a fair presentation of the facts, both for and against your client, with appropriate citation to the record.

Standard of Review in the California Supreme Court?

Tuesday, December 4th, 2007

Appellate practitioners are familiar with the need to identify a standard of review for the court of appeal’s review of a trial court decision — but what standard does the Supreme Court apply when it reviews the court of appeal decision?

Before 1984, this was not an issue since at that time the Supreme Court reviewed the trial court ruling, and the intermediate appellate ruling simply disappeared.  In 1984, however, the state constitution was amended to note that the Supreme Court reviews the decision of the court of appeal.

This week, the California Supreme Court in City of Stockton v. Superior Court stated (apparently for only the second time) that its review of the appellate decision is an independent judgement review.  The court cited its earlier decision in Smiley v. Citibank, 11 Cal. 4th 138 for this proposition which in turn had noted that the court was duty bound not to defer to the court of appeal ruling.

Although the rules of review changed in 1984, California still does not publish the court of appeal decision once review is granted.  California Rule of Court 8.1105 provides for automatic depublication once review is granted — it is then up to the Supreme Court to specially order partial publication.  This becomes important since the Supreme Court does not review the entire court of appeal decision.  Instead, the court only reviews specific issues presented for review.

 Appellate counsel should keep this point in mind when advising clients (especially those who are not party to the appeal) whether to ask the court to publish a portion of an appellate ruling on which review has been granted.  Without that partial publication order, no part of the appellate ruling may be cited as precedent — including that part on which the Supreme Court did not grant review.

Contract claims against government agencies must first be submitted to the agency under the Claims Act

Tuesday, December 4th, 2007

Although generally referred to as the “Tort Claims Act,” the California Supreme Court has made clear that the claims presentation of Government Code § 905 applies to claims for breach of contract.

The issue was presented to the court in City of Stockton v. Superior Court (Civic Partners).  Civic claimed that Stockton’s Redevelopment Agency had breached a contract and violated Civic’s copyright to architectural plans.  The trial court dismissed the copyright claim, holding that federal courts had exclusive jurisdiction over those issues.  The trial court overruled the city’s demurrer to the contract claim, however, since it believed that the claims statute did not reach contract claims.  Stockton challenged that ruling in a petition for writ of mandate.  The appellate court agreed with the city and issued a writ ordering the trial court to sustain the demurrer.

On review, the California Supreme Court resolved a conflict in the courts of appeal by ruling that claims act (the court refers to it as the Government Claims Act to avoid confusion) applies to nearly all claims for money filed against a public entity.

Violate the rules, lose the appeal

Monday, December 3rd, 2007

In a decision that the Ninth Circuit published “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” the court dismissed an appeal for counsel’s failure to submit a brief that complied with the rules.  According to the court, the brief did not articulate the standard of review; did not contain a table of contents, table of authorities, citation to authorities, or accurate citation to the record; and made “virtually no legal arguments.”  (Sekiya v. Gates, November 29, 2007)

The panel was clearly upset with counsel’s failure to present anything approaching a useful brief.  On the other hand, it did give the panel the opportunity to quote from the court’s earlier decision in N/S Corp v. Liberty Mutual Insurance Co. to the effect:  “we must insist that parties not clog the system by presenting us with a slubby mass of wordsrather than true brief.”  Somehow, I doubt that no matter how long I practice law, I will never have the opportunity to use the phrase “slubby mass of words” in an appellate brief.  It is nice to know, however, the if occasion does arise that I have this published Ninth Circuit decision to cite as authority.

My former classmate and one-time coworker, Joe Maloney, pointed this case out to me.  Joe now practices out of Auburn, California, after a long stint at the US Attorney’s office in Sacramento.


UPDATE:  As an interesting footnote to the case, the Ninth Circuit’s docket contains an entry cancelling oral argument because “The court is of the unanimous opinion that the facts and legal arguments in this case are adequately presented in the briefs and the record, and the decisional process would not be significantly aided by oral argument.”

Given what the court had to say about the appellant’s brief, I suppose they were talking more about the record than the briefs in the case!