Archive for January, 2008

No Job Protection for Medical Marijuana Users

Friday, January 25th, 2008

The California Supreme Court issued its decision in Ross v. RagingWire this morning holding that while medical marijuana use may be lawful under state law, that law does not prohibit employers from terminating employees based on that use: 

We conclude that the lower courts were correct:  Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.  Under California law, an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions.  We thus affirm.

Ross was fired from his position as a systems administrator after his preemployment drug test revealed the presence of THC (the chemical in marijuana).  Ross had given the drug testing company his doctor’s certification that the marijuana was used to treat chronic back pain, and he had supplied the employer with the same information.  Nonetheless, the company terminated his employment based on their policy prohibiting illegal drug use.

Ross sued, arguing that the termination violated the employer’s duty of reasonable accomodation for his disability under the state Fair Employment and Housing Act and further that the termination was a violation of public policy.

The majority noted that although California voters had the power to change California law regarding possession and use of marijuana, they had no power to change federal law.  Thus, the drug remains illegal under federal law.  The question, then, was whether the employer was required to waive its policy against the use of illegal drugs in order to accommodate Ross’ disability.

The court rejected that argument.  The majority noted that the Compassionate Use Act did not purport to speak to the duties of employers, nor did it “eliminate marijuana’s potential for abuse or an employer’s legitimate interest in whether an employee uses the drug.” 

Of note, the majority quoted from the United States Supreme Court decision in Gonzales v. Raich, 545 U.S. 1 (2005), noting the federal policy of criminalizing the use of marijuana based on its “high potential for abuse” and the lack of “accepted medical use.”  The state law obviously stands in opposition to this federal policy.  The majority noted, however, that while voters are free to disagree with Congress on this issue, the fact that they did so does not compel the conclusion that they also intended to require employers to accommodate use of a drug that is illegal under federal law.

The court also rejected the argument that the dismissal here constitutes “wrongful termination in violation of public policy” (an exception to California’s general rule of employment at will).  Again, the court declined to find a public policy related to employment in the Compassionate Use Act.

The dissent argued that the majority “disrespects the will of California’s voters” in failing to protect an employee’s off-duty use of marijuana pursuant to a doctor’s recommendation.  The dissent would find a violation of the California Fair Employment and Housing Act unless the employer could demonstrate that the off-duty use would impair the employer’s operations.  The dissent would not, however, find a wrongful discharge in violation of public policy.  The fact that marijuana use remains illegal under federal law is sufficient to take it outside of the public policy that would support such a tort cause of action.

The interesting aspect of this case is the apparent fine line the court walked when interpreting an initiative measure that conflicted with federal law.  The initiative had the power to affect state law, but that left a contrary federal law in place.  The problem that the court had to deal with here was how all of that affected other state laws.  Did the fact that voters permitted the use of marijuana for “medical purposes” have an impact on state laws requiring reasonable accommodation for medical conditions?  Further, does an employer have the right to create company policy based on federal law – even when there is a conflict between federal and state law?

The majority dealt with these questions by a close reading of the initiative.  The court was not willing to infer a voter intent in this area beyond the terms of the initiative, especially where there was no explicit evidence that voters intended the measure to alter employment law.

City’s pre-election challenge to initiative not a SLAPP

Monday, January 21st, 2008

(Bumped — note the comment from the attorney for the petitioner inviting amicus participation) 

Tackling the ever more difficult question of when a lawsuit “arises out of” protected activity, the Fourth District Court of Appeal ruled Friday that Riverside’s pre-election challenge to an initiative restricting the city’s power of eminent domain was not subject to special motion to strike under Code of Civil Procedure §425.16.

The proponent of the initiative (and defendant in the city’s suit) argued that filing an initiative with the city is protected activity under the First Amendment — that the right of petition was not completed until after the election.  The Court of Appeal disagreed, however.

“[A] court, in determining whether the anti-SLAPP statute applies, looks at whether a lawsuit arises out of protected activity, rather than a more fundamental dispute.  Above all, as we have already said, what matters is the basisfor the lawsuit; that the City filed its declaratory relief action [seeking a ruling that the initiative was invalid and could not be placed on the ballot] on the heels of the submission of the initiative is not dispositive.”

This may prove to be a difficult standard to apply in practice.  The first prong of a special motion to strike is a showing that the action “arises out of” protected activity.  If that is established, the burden shifts to the plaintiff to show likelihood of success on the merits.  In this case, there is no question that drafting an initiative and collecting enough signatures to place the measure on the ballot are “protected activities” for the purpose of the Anti-SLAPP law.  It also seems not subject to dispute that the cost of defending a lawsuit (in absence of pro bono assistance) is a costly matter — and the city could use the lawsuit as a means of precluding a vote and deterring future initiatives.  The distinction that court draws in this case, without resorting to an attempt to ferret out the subjective intent of the plaintiff, is to note that the suit arises not out of the First Amendment activities of drafting and qualifying an initiative, but rather the substantive legality of the initiative.

That analysis, however, seems to invite a blurring a distinction of the first and second steps of the section 425.16 analysis.  After all, one could argue that in many anti-SLAAP actions that the suit is really about the substantive illegality that forms the basis of the cause of action rather than the exercise of speech rights.   This is an area where further direction from the Legislature and the Supreme Court is necessary.

Two other points about this decision merit mention.  First, the initiative at issue apparently failed to qualify for the ballot and the court decided that the appeal was technically moot.  The court’s reasoning, stated in its order to the parties to brief the mootness question, was put this way:  The initiative failed to complete the process necessary for placement on the ballot.  Thus, validity of the initiative is no longer viable, which means the complaint is moot, in turn rendering moot the granting of the special motion to strike and this appeal.”

Does this mean that a plaintiff can escape liability for attorney fees on an anti-SLAAP motion if the action subsequently becomes moot?  Hasn’t the defendant already suffered the harm that the Legislature attempted to remedy with the fee award?

The second point is that the court noted that on remand, that “inasmuch as the City is now the prevailing party, upon motion in the trial court and a showing that respondents’ motion was ‘frivolous or [was] solely intended to cause unnecessary delay’ … the City may be entitle to attorney’s fees.”

I have wondered how one could show a motion to be “frivolous” if the trial court had initially granted the motion.  If you have convinced a court that the motion is legally correct, does that establish the motion was not frivolous as a matter of law?

Appellate Advocacy Seminar in Florida

Sunday, January 20th, 2008

Here is the chance for you to travel to the sunshine state and brush up on you appellate advocacy skills (while the rest of the family hangs out at that Magic Kingdom place).  DRI (the defense side of the civil trial bar) is putting on a two-day appellate advocacy seminar.  More info on the DRI site and on The (New) Legal Writer Blog.

Unfortunately, Florida travel is not in my plans at the moment – but if you attend the seminar, drop me a note and let me know what you think.  I occasionally teach CLE sessions on appellate advocacy and am always interested in hearing about what works and what does not work in the seminar setting.

Paint a Picture with Your Words … But Not that Picture

Wednesday, January 16th, 2008

At the end of the day, litigators (trial and appellate) are in the communications business.  We must get a point across to our audience and win them over to our point of view.  Writing instructors say to “tell a story” or to “paint a picture with your words.”  But, please be careful with the picture you paint!

Reuters has a story on the Business of Blogging:  How to Make it Work, in which it quotes a “branding expert” as noting that a successful blog “kind of opens the kimono and from a brand point of view lets people know who you are.”  That certainly conjures up a picture — but not one I particularly want to see! 

Thanks to Eugene Volokh over at Volokh Conspiracy for the pointer, and special thanks for him also promisng to keep his kimono closed.

Arguing the “Political” Case

Thursday, January 10th, 2008

It is fashionable to accuse courts of rendering decisions based on political preferences.  Whether or not this is true, appellate counsel need to be aware that the courts are sensitive to the accusation. 

SCOTUSblog has a post on this week’s argument before the United States Supreme Court on the Indiana photo-identification law entitled “The Partisan Elephant Unnoticed in the Room,” that highlights this concern.  The media will paint the decision in partisan overtones.  The court, therefore, needs the assistance of counsel for all parties to highlight the strictly legal (and constitutional policy) issues in the case to avoid feeding the partisan story line.

Section 1988 Fees Need Not Be Proportional to Damages

Wednesday, January 9th, 2008

Litigating cases against government entities can be frustrating.  In some cases, it seems that a city or state agency will spare no expense in litigation to defend against a claim with the result that the cost of litigation will greatly exceed the damages awarded.  Successful civil rights claimants are entitled to attorney fees under 42 USC §1988, but the question is whether the attorney can get fairly compensated the time it took to litigate the claim.

The First District Court of Appeal recently issued a decision that will help litigants with this concern.  In Harman v. City and County of San Francisco, the city argued that a fee award of $1.1 million should be overturned since it was grossly disproportionate to the $30,000 in damages awarded by the jury.  The court ruled, however, that proportionality was not the legal standard against which to judge fee awards under section 1988. 

Instead or proportionality, the court bases a fee award under section 1988 on a lodestar calculation that includes time reasonably spent in pursuit of successful claims.  Time spent on tasks attributable to multiple claims need not be apportioned to account for success on only some of those claims — the standard is reasonableness of the time spent.

Similarly, a successful claimant may be awarded fees for unsuccessful claims where they are related to successful claims and the court finds a reasonable relationship between significance of the relief awarded and the hours expended on the litigation.  The amount of the damage award does not control this question:  “a slight monetary recovery will not control assessment of the appropriate amount of attorney fees where a constitutional right is vindicated or a significant public benefit conferred.”

One of the important lessons of this case is the difficulty in challenging an award of fees on appeal.  The standard of review is “abuse of discretion.”  Thus, although the Court of Appeal noted that had the question “been presented to us in the first instance, we may not have awarded attorney fees that so far exceed the recovery of damages,” the award by the trial court was not an abuse of discretion.  The appellate court took note of the fact that the trial judge that made this award “presided over the entire lengthy proceedings, including two remands,” and “handled this case for several years.”  In that situation, the appellate courts will be especially hesitant to disturb the trial court’s attorney fee award.

Congratulations to my former colleagues, Paul Beard and Sharon Browne at Pacific Legal Foundation, and my law school classmate, Andrea Miller of Nageley, Meredith, & Miller, for this outstanding victory.

Court OK’s 1021.5 Fees for Pre-Litigation Activities

Tuesday, January 8th, 2008

Unlike fees awarded under 42 USC §1988 for civil rights claims, the private attorney general attorney fees provision in California (Code of Civil Procedure §1021.5) permits an award of fees if the subject litigation was the “catalyst” for the government’s change of position even where the litigation did not result in a successful judgment or court order.  In order to win fees under the catalyst theory, however, the California Supreme Court has said that you must attempt to settle the dispute before filing the law suit.  (Graham v. DaimlerChrysler Corp., 34 Cal. 4th 533, 560 (2004)). 

The question addressed by the Court of Appeal in Hogar v. Community Development Commission is whether you are entitled to fees for those pre-litigation activities.  The court ruled that fees for pre-complaint activities were not precluded under section 1021.5, but that a litigant seeking such fees will “bear a heavier burden of demonstrating how that activity contributed to the success of the litigation.”

The lesson for counsel involved in these actions is to keep accurate records of their time from the first contact with the government agency — even if you are unsure at that point that your client will pursue litigation if those initial contacts are unsuccessful.

New Year’s Resolution for Appellate Counsel?

Wednesday, January 2nd, 2008

The ABA Journal quotes Justice Kennedy saying “I’ve never read a brief I couldn’t put down in the middle.  It is not the best part of the job.” (Thanks for the pointers from The California Blog of Appeal and Legal Writing Prof Blog).  Assuming the comment was directed to the quality of writing rather than attention span — this is a pretty damning indictment of appellate practitioners.

This started me thinking about what makes a good appellate lawyer.  Writing, I fear, is the last thought that comes to mind for many attorneys.  It should be the first, however. 

Think about the great trial practitioners.  What sets them apart is their ability to tell a story to the jury, using witnesses and their own argument.  The appellate lawyer, by contrast, ought to be known for his or her writing.  Communication is still the key, we just use a different medium.

In my old job I spent quite a bit of time hiring, training, and evaluating attorneys for a firm that worked primarily in the appellate forum.  I told the new attorneys that the position required a career-long commitment on their part to improve their writing.  If that is something you enjoy, then appellate practice is the right place for you.

This New Years, I am resolving to take some of my own advice and work on my writing.  That does not mean that you can ignore the other elements of appellate practice.  You need to understand what you can accomplish in the appellate forum and the standard of review the court will apply.  You also need to bring you superior legal analytical abilities to bear.

That said, however, if the court does not read your brief all of that other effort is wasted.