JUST IN: Sixth District Court of Appeal Rules in Favor of Palo Alto Firefighters, Invalidating Measure D and Ordering the City to Restore Interest Arbitration for Employment Disputes

    On June 3, 2024, the Sixth District Court of Appeal issued a published decision vindicating the bargaining rights of the Palo Alto Firefighters, IAFF Local 1319 over the City’s effort to repeal binding interest arbitration to resolve impasses in negotiations for fire and police employees. The appellate court previously held the City must meet and consult with the union in good faith before submitting a repeal initiative to the voters, but remanded the issue of remedy holding the Attorney General must approve a Quo Warranto action to invalidate a voter initiative.  (City of Palo Alto v. Pub. Emp. Rels. Bd, 5 Cal. App. 5th 1271 (2016)) The trial court refused to invalidate the repeal despite finding the City unlawfully exercised its right to place a ballot measure before the voters.  On this second appeal, the appellate court invalidated the initiative, holding the trial court abused its discretion in not providing this remedy which restores the parties to the status quo.  Kathleen Mastagni Storm argued this appeal.

Case Background

    Over a decade ago, the City of Palo Alto repealed binding interest arbitration from the City Charter through a ballot Measure. The matter was litigated at PERB, as the City refused to meet and consult over the impasse procedure changes. Local 1319 prevailed and PERB found it was an unfair labor practice. The City then appealed the decision to the Sixth District Court of Appeal (Sixth DCA). The Court of Appeal upheld PERB’s decision, but remanded the case to PERB to modify its remedy. PERB initially invalidated the Measure, but the Appellate Court found that remedy violated the separation of powers doctrine, as PERB cannot order a city to take a legislative act. PERB’s modified order voided the City’s act of placing the Measure on the ballot.

    After PERB’s decision became final, the City refused to restore the binding interest arbitration procedures, forcing Local 1319 to seek leave to sue on behalf of the State of California in a Writ in Quo Warranto. The writ is an ancient process by which the court can declare a government entity exercised or held a franchise unlawfully and invalidate the act. Here, the City unlawfully placed Measure D before the electorate and Local 1319 sought to invalidate the measure. The Attorney General’s office granted leave to sue on behalf of the State of California because there is a statewide interest in enforcing the MMBA, ensuring ballot measures are enacted correctly and ensuring stable employer-employee relations. 

    Local 1319 prevailed at the trial court, but the judge refused to order Measure D invalidated. Rather, enforcement of Measure D was stayed until the parties met and consulted in good faith. Then, the City could act on its repeal of interest arbitration from the Charter. In order to challenge the remedy, Local 1319 appealed the decision back to the Sixth DCA. Here, the question presented to the Sixth DCA concerned whether a successful challenge to a municipal charter provision requires invalidation and whether the trial court abused its discretion in issuing its selected remedy. Local 1319 argued Code of Civil Procedure section 809 required invalidation, that invalidation was the only way to give meaning to PERB’s decision voiding the Measure, and that it was the only way to restore the status quo and place the parties on a level playing field. 

Sixth District Court of Appeal on Reversing Trial Court Judgment

    The Court of Appeal agreed with Local 1319 and ordered the trial court’s judgment be reversed, interest arbitration be restored to the Charter and Measure D be invalidated. The Court of Appeal noted that the trial court attempted to balance competing factors, including the will of the voters, but failed to give sufficient weight to PERB’s and the Attorney General’s judgment that uniform compliance with the meet and confer requirements of the Meyers-Milias Brown Act are matters of statewide public importance.  The Sixth DCA found consideration of the local electorate over the statewide importance of municipal compliance with the MMBA was erroneous, and the trial court abused its discretion in refusing to invalidate Measure D. The Sixth DCA highlighted that electors lack the power to ratify a defective ballot measure. 

    The Court of Appeal also found the trial court did not give sufficient weight to PERB’s underlying determinations, including that the failure to meet and consult was a per se violation and the traditional remedy is restoration of the status quo. The Sixth DCA noted that the “MMBA’s meet and confer provisions do not dictate the substance of a municipality’s labor provisions, but they do mandate that municipalities follow a process that includes consultation with affected organizations.” And the Court highlighted what Local 1319 pointed out, “the public has an interest in ensuring charter amendments are validly enacted in accordance with the law and securing stable employer-employee relations.” The Sixth DCA determined invalidation was necessary to restore the status quo and allow the parties to bargain on a level playing field if the City decided to try and repeal binding interest arbitration in the future.

    This is a huge victory for Local 1319, labor unions statewide, and PERB. The decision reaffirms PERB’s authority to effectively remedy MMBA violations and should stand to deter other municipalities from engaging in similar behavior — circumventing their obligation to meet and confer by submitting the matter directly to the voters. 

    This is the first published appellate decision on this issue where a writ in quo warranto was granted in California invalidating a ballot measure passed in violation of the Meyers Milias Brown Act (MMBA). Brian Rice, President of California Professional Firefighters called this, “A historic win for Firefighters across California.  Measure D in Palo Alto was one of the foundational attacks on public safety employees over a decade ago. The legal overturning of Measure B in San Diego a few years ago and now Measure D in Palo Alto are sentinel decisions for the California Firefighters.”  

    Joseph Penko, President of Local 1319 noted “the Palo Alto Firefighters felt strongly in 2011, and feel just as strongly today, that binding arbitration is an important tool for ensuring fair negotiations since striking is not an option in the fire service. Palo Alto’s decision to ignore the procedures set forth by law in revoking our rights was a miscarriage of justice. We are grateful that the courts have finally recognized that and restored our binding interest arbitration.”

For more information, please see our previous blog post on this case, located here. 

Partner Kathleen Mastagni Storm and Senior Associate Joshua Olander represented Local 1319 throughout this litigation and Kathleen argued the case in March of this year.

Watch Kathleen Mastagni Storm's March 14, 2024 Oral Argument in the 

Sixth District Court of Appeal using the above link. 

Federal Appellate Court Grants Qualified Immunity For Use of Taser on Fleeing Suspect

The Sixth Circuit Court of Appeals recently dismissed a 1983 lawsuit against officers alleging excessive force in the use of a taser against a subject who engaged in pre-arrest flight. (Brown v. Giles, 95 F.4th 436 (6th Cir. 2024)) Notably, the court found that a taser prong striking the suspect's head was not clearly established as excessive and that other allegation clearly refuted by the video footage should be dismissed as well.

The court explained the suspect's mother called the police when he showed up at her workplace seeking money and a place to stay.  The suspect, who suffered from addiction and homelessness, had a warrant out for his arrest.  When contacted by the officers, he provided a fake name and then fled.

One of the officers pursued him and mid-stride fired his taser with one probe striking his head and the other his back.  The suspect fell to the ground and hit his head.  While handcuffing him, the officer held his taser against his back in case he resisted.  The suspect sued claiming the use of the taser was excessive and caused injuries.  He also claimed he was drive stunned while being handcuffed, a claim contradicted by the video.  

The court wasted little time affirming that its reasonable to tase fleeing suspects, so that tasing alone is insufficient to establish excessive force.  The court noted that while lethal force would not have been appropriate, tasers are not lethal force.  The court also rejected the argument that this particular use of the taser was unreasonably dangerous because the suspect was running and struck in the head.  The court explained:

"We doubt that this difference matters in the context of a mid-chase decision to tase a fleeing suspect. It's difficult to imagine how a sprinting officer could aim his taser precisely enough to (1) hit a suspect with both taser probes while (2) ensuring that neither probe hits the suspect's head. It's even harder to imagine that the Fourth Amendment requires such a feat. That's precisely why we defer to the “split-second” decisions of officers in fast-paced, complex situations."

As for the claim that the officer continued to tase the suspect after he was subdued, the court noted the alleged conduct would constitute excessive force if true.  However, the court dismissed these allegations based on the video of the incident demonstrating that the suspect was only tased once.  The officer never deployed the taser while pressed against the suspect's back, as the "lack of noise utterly discredited" the suspect's claim. 

Importantly, the court explained "we don't need to accept as true any allegation 'blatantly contradicted' by the video. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). This dooms [the suspect's] claim." 

MORE ON THE RIPA LEGISLATION: David Mastagni Joins PORAC's "On the Job" Podcast on "Standing Up for Officer Privacy Rights"

       

    In April, David Mastagni and Tim Talbot sat down with PORAC President Brian Marvel to discuss a significant legal victory in the realm of law enforcement rights and privacy. The episode examines the PORAC v. Bonta matter in relation to the fight for officers' rights to not have to disclose their gender. The episode provides an overview of the Racial and Identity Profiling Act (RIPA) that forced police officers to disclose their gender identity when reporting the outcome of a traffic stop. 

    The episode also discusses the implications of overreaching Department of Justice (DOJ) policies on law enforcement professionals and the LGBTQ+ community and discusses officer privacy double standards. David Mastagni highlights how the RIPA gender disclosure requirement contradicts the privacy standard Attorney General Rob Bonta declared regarding school teachers and parent notifications of a student's gender identity. The episode also discusses the regulation's implications and how the regulations infringe upon the constitutional rights of peace officers. An explanation of the legal intricacies surrounding PORAC's temporary restraining order against DOJ is also discussed. 

    You can listen to the podcast by clicking here. 

    You can also watch the podcast on YouTube here. 

JUST IN: Permanent Injunction Issued Against the State of California Related to the RIPA Requirement to Disclose Gender Identity

    On April 30, 2024, Judge Christopher E. Krueger of the Sacramento County Superior Court issued a Permanent Injunction against the State of California prohibiting the DOJ from enforcement of RIPA’s gender disclosure requirements set forth in section 999.226(a)(23) of Title 11 of the California Code of Regulation.

    PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association, and the California State Sheriffs’ Association filed a legal action and obtained a TRO against the California DOJ to stop Attorney General Rob Bonta’s implementation of these forced identification regulations on January 22, 2024.

    David E. Mastagni and Timothy K. Talbot appeared in Sacramento Superior Court to request issuance of a Permanent Injunction pursuant to stipulation with the DOJ on April 30, 2024.  Today, the Court issued its order granting the permanent injunction which stated in pertinent part:

• “Defendants and their agents, employees, and representatives are permanently enjoined from enforcing section 999.226(a)(23) of Title 11 of the California Code of Regulations, a regulation under the California Racial and Identity Profiling Act of 2015 (RIPA) that requires certain law enforcement officers to document their gender identity when performing a stop.  (Gov. Code § 12525.5.)”

• “Defendants and their agents, employees, and representatives are permanently enjoined from requiring any individual required to comply with RIPA to provide the “gender of officer,” as defined in section 999.226(a)(23) of Title 11 of the California Code of Regulations, on any disclosures required by RIPA.”

    The Court’s minute explained:

    “The declarations submitted by Plaintiffs with the application for the temporary restraining order, coupled with the decision by Defendants State of California, California Department of Justice and Attorney General Rob Bonta not to contest that evidence and to stipulate to the injunction, provide sufficient factual and evidentiary basis for the issuance of a permanent injunction. The Court will approve the stipulation for final judgment.”

    We are proud to have represented law enforcement labor and management organizations to jointly protect the privacy rights of the peace officers who protect us all.

    For more on the RIPA legal battle, visit our previous blog post here outlining RIPA more fully. 

Third Circuit Court of Appeals Upholds Sanctions Against the Philadelphia District Attorney’s Office for Misleading the Court About Conferring with Crime Victims

    

    A federal court has ordered Philadelphia District Attorney Larry Krasner and two supervisors from his office to apologize to the family and survivor of vicious murders. The DA’s Office made representations to the trial court that the office had consulted with the family before conceding the death penalty for the murderer.

The Case and Decision

    In the mid-1980s, Robert Wharton terrorized the Hart family for months. Wharton burglarized the Hart’s home repeatedly, left threatening messages, and ultimately killed Bradley and Ferne Hart. Wharton turned off the heat to the home and left seven-month-old Lisa Hart to freeze to death in the cold Pennsylvania winter.  By no small miracle, Lisa survived the encounter. Wharton was later convicted of these crimes and sentenced to death. Wharton was retried for the murders in 1992 and again found guilty.

    Ultimately, Wharton filed a federal habeas corpus petition to have his death sentence overturned. The court determined that the last major issue was whether Wharton had adjusted well to prison and if his adjustment would have changed the second jury’s opinion of guilt. Wharton’s defense insisted that he had adjusted well to prison life, but Wharton truly did not. Wharton had attempted to escape from prison multiple times, racked up numerous prison misconduct charges and was caught—twice—with makeshift handcuff keys. 

    After nearly 30 years of dutifully prosecuting the case and opposing Wharton’s numerous appeals, the Philadelphia District Attorney’s Office suddenly decided to concede the death penalty issue. Specifically, the DA’s Office claimed they no longer sought the death penalty after “communication with the victims’ family” and their own internal review by their death penalty committee.  The DA’s briefs and arguments lacked any mentions or evidence of his poor adjustment to prison. 

    The federal trial court was suspicious of the sudden concession and refused to accept it.  After further hearings, the court reprimanded the DA’s Office. The Office had violated Federal Rule of Civil Procedure 11(b)(3) because the Office made “representations to the Court that lacked evidentiary support and were not in any way formed after ‘an inquiry reasonable under the circumstances.’”  As punishment for their conduct, DA Krasner was required to provide a written apology to the Hart family’s survivors and the DA’s Office was ordered to be more forthcoming in the future. 

    The DA’s Office (and two involved supervisors) appealed the District Court’s order finding they lacked candor in their representations to the court to protect their professional reputation. The Third Circuit Court of Appeals upheld the sanctions and findings of the District Court. In their decision, the Third Circuit noted:

 

“Though literally true, [the claim of communication with the victims’ family] was misleading. Our opinion remanding this case identified Lisa hart by name as the sole survivor of Wharton’s crimes. Any reasonable reader would expect, as Judge Goldberg did, that this phrasing meant Lisa had been contacted. Yet she was not. And any reasonable reader would expect, as Judge Goldberg did, that the Office had solicited the views of other family members. Yet the Office had not contacted anyone besides [the victims’] brother. Plus, when it reached him, it never told him clearly that it was planning to concede the death penalty.”

Discussion

    This case is a prime example of an attempt to cover up poor performance with clever wording. The prosecutors were not technically being dishonest in their representations. But a reasonable person reading the court’s instructions and orders would interpret the claims in their contextual meaning, rather than literal. 

    Outside of the issue of candor by lawyers, there is also an issue of protecting victims of crime and their survivors.  Pennsylvania has a Victim’s Bill of Rights codified in statute at Pa.C.S. §11.201, which is similar to the California Victim’s Bill of Rights. Both states require victims to be kept informed about the status of cases, including regarding hearings and proceedings that may result in the release of a defendant. While Wharton was seeking relief from his death sentence and not release from custody, the Hart family had a right to be notified of the true nature of the proceedings and be given a voice in the decision to concede.

    This case serves as a reminder that prosecutors and other government agents should make reasonable efforts to involve victims in the justice process—both for moral reasons and from legal expectations set out in the Victim’s Bill of Rights.

    Specifically for lawyers, the Third Circuit summed up their opinion well: “As officers of the court, lawyers must not mislead courts. So, before they state facts, they must investigate reasonably.”

    For more than 30 years, the Lisa Hart and her family have waited for justice to be carried out against Wharton, only to have the DA’s Office mislead them about their plans to concede on the death penalty. Hopefully, the Third Circuit’s decision and the apology by the DA’s Office are steps towards finding that justice. 

Images: AFP/Getty Images Composite: Mark Kelly, Wall Street Journal