March 2000 Vol. 6 No. 3 ISSN 1087-6219
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In This Issue

• En banc Ninth Circuit eliminates guessing about the motive behind prosecution in deciding application of automatic bankruptcy stay
• Exclusion of homosexuals from jury violates right to a jury drawn from the community
• Reverse engineering of Sony PlayStation is not copyright infringement
• No claim for retaliation where public employee denies engaging in protected speech
• Replacement by an older employee does not defeat age discrimination claim
• UPDATES

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En banc Ninth Circuit eliminates guessing about the motive behind prosecution in deciding application of automatic bankruptcy stay

Overruling a six-year old precedent, the Ninth Circuit has decided that bankruptcy courts should not interfere with state court prosecutions. The en banc decision came in response to a petition for rehearing filed by Gutierrez, Preciado & House.

After Gruntz's ex-wife asked the Los Angeles District Attorney's office to help her collect overdue child support, Gruntz filed a bankruptcy petition. The District Attorney prosecuted him for failing to support his children. The California Court of Appeal affirmed the resulting conviction over Gruntz's argument that the prosecution violated the automatic stay. Gruntz sued the District Attorney for violating the automatic stay imposed by the Bankruptcy Code. The en banc court affirmed the dismissal of Gruntz's complaint.

The federal courts have exclusive jurisdiction over all “cases” under the Bankruptcy Code. The filing of a bankruptcy case imposes an automatic stay on all proceedings against the bankrupt. There is an exception from the stay for the “commencement or continuation of a criminal action or proceeding.” In Hucke v. Oregon, 992 F.2d 950 (9th Cir. 1993), a three-judge panel of the Ninth Circuit had ruled that the exception for criminal proceedings did not apply to prosecutions instituted for the purpose of collecting a debt.

The en banc court determined that federal courts have exclusive jurisdiction to decide whether the automatic stay applies. State courts that rule on the applicability of the stay do so at the risk that a bankruptcy court will later overrule the decision. In that event, any resulting state judgment would be void as a violation of the automatic stay.

However, the en banc court also overruled the Hucke interpretation of the criminal proceeding exception to the stay. Henceforth, any criminal proceeding, no matter what its purpose should be exempt from the automatic stay.

Gruntz v. County of Los Angeles (In re Gruntz), 2000 WL 124399 (9th Cir. Feb. 3, 2000).

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Exclusion of homosexuals from jury violates right to a jury drawn from the community

The Santa Ana division of the Fourth District Court of Appeal has ruled that the constitutional right to a representative jury prohibits exclusion of homosexuals from the jury. The ruling will probably apply to both criminal and civil proceedings.

In People v. Wheeler, 22 Cal. 3d 258 (1978), the California Supreme Court ruled that litigants could not use peremptory challenges to exclude members of a cognizable group from the jury panel. To be “cognizable,” a group must meet two requirements-the members must share a common perspective arising from their life experience, and no other members of the community must be capable of adequately representing the perspective of the group. The homosexual community meets both requirements:

First, although all homosexuals do not see the world alike, they have a common perspective. They share the experience of having spent their lives in a sexual minority, either exposed to, or fearful of, persecution and discrimination.

Second, no other members of the community at large share the perspective of the homosexual community.

The court stated that its ruling should not be taken as a license to inquire into sexual orientation during voir dire: “It simply should not be done. … No one should be 'outed' in order to take part in the civic enterprise which is jury duty. The whole point is that no one can be excluded because of sexual orientation. That being the case, no one should be allowed to inquire about it. If it comes out somehow, as it did here, the parties will doubtless factor it into their jury selection decisions, just as they factor in occupation, education, body-language, and whether the juror resembles their stupid Uncle Cletus. But there is no reason to allow inquiry about it.”

People v. Garcia, 77 Cal. App. 4th 1269 (2000).

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Reverse engineering of Sony PlayStation is not copyright infringement

The Ninth Circuit has ruled that Connectix did not infringe on Sony's copyright when it copied Sony's BIOS for the PlayStation game system in the course of developing software to emulate the PlayStation on a regular computer. Connectix's copying was a fair use of Sony's material.

Sony makes the PlayStation, which allows users to play games on a television console from compact discs. Connectix developed a software program called “Virtual Game Station,” which allows users to play PlayStation games on a regular computer. In the course of developing the program, Connectix continually copied and studied the basic input-output system (BIOS) for the PlayStation. Connectix's software itself does not contain any of Sony's copyrighted material.

The federal district court enjoined Connectix from selling the Virtual Game Station, and from copying or using Sony's BIOS code. The Ninth Circuit reversed.

Although computer software may be copyrighted, it typically contains uncopyrightable elements, such as ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries. In 1993, the Ninth Circuit had determined that disassembly of computer software was a fair use, if it was the only way to gain access to the unprotected elements of the software. Sega Enter. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).

In this case, there was no question that Connectix could not access the unprotected elements of the PlayStation system without disassembling the BIOS code. Sony argued that Connectix's method of disassembly was improper, and resulted in more intermediate copies of the BIOS than another method might have. The court rejected the argument, as unnecessarily interfering with software engineers' legitimate efforts to find the unprotected elements.

Sony Computer Entertainment, Inc. v. Connectix Corp., 2000 WL 144399 (9th Cir. Feb. 10, 2000).

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No claim for retaliation where public employee denies engaging in protected speech

The Ninth Circuit has rejected the claim of a junior college professor who claimed that her college discharged her for circulating anonymous letters. Because she denied having written the letters, she had not engaged in protected expression.

In 1995 and 1996, six anonymous written communications were circulated within the Sonoma County Junior College District. The writings accused the District's president of various types of misconduct. Although a document examiner determined that Sylvia Wasson had written the letters, she denied having done so. The District determined that authorship of the letters constituted unfitness for service, and decided to dismiss her. Several months later it withdrew the decision, and reinstated her.

The First Amendment forbids retaliation against a public employee for engaging in certain protected speech. The speech is protected if (1) it relates to a matter of public concern, and (2) the employee's interest outweighs the public employer's interest in promoting efficiency of its public services. Wasson could not prove such a claim, because she denied that she had engaged in protected speech.

The court also rejected Wasson's argument that she should be allowed to proceed as the defender of the First Amendment rights of the anonymous author. She did not allege a relationship with the anonymous author that would justify recognition of third party standing.

Wasson v. Sonoma County Junior College, 2000 WL 166838 (9th Cir. Feb. 16, 2000).

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Replacement by an older employee does not defeat age discrimination claim

The First District Court of Appeal in San Francisco has reinstated a jury verdict in favor of a discharged employee who claimed age discrimination. Although her duties were taken over by an older existing employee, there was sufficient evidence to support an inference of age discrimination.

Jeannie McKenzie worked as an admitting clerk for Canfield & Associates at Valley Memorial Hospital. She was 40 years old. Canfield discharged her for (1) leaving her department without supervisor permission, (2) failing to obtain insurance authorization for four patients, (3) failure to perform new duties, and (4) make a racially discriminatory comment.

An older existing employee took over McKenzie's duties. McKenzie's expert testified that there was a statistically significant higher discharge rate at Canfield for employees who were 40 or older. McKenzie testified that there was no basis for any of Canfield's stated reasons for her discharge.

The jury awarded McKenzie $20,156 in economic damages and $5,000 in non-economic damages. It also requested that the charge of discrimination be removed from her employment record. The trial court granted Canfield judgment notwithstanding the verdict, on the ground that she had been replaced by an older employee.

The Court of Appeal reversed. Although a plaintiff may establish a prima facie age discrimination case with evidence that she was replaced by a younger employee, that is not a required element of an age discrimination claim. There can be discrimination even if the victim is replaced by an older employee.

As the court explained: “For example, the jury may infer that the replacement was hired to protect against an anticipated claim of age discrimination. Or, if the replacement is a transferred existing employee instead of a new hire, and there is evidence that all, or most new hires are substantially younger, the jury could conclude the employer nevertheless reduced the overall age of its workforce by terminating some employees based upon age while hiring only younger employees.”

McKenzie presented evidence from which the jury could infer discrimination, through the expert's analysis and her testimony that the stated reasons were false.

Begnal v. Canfield & Assoc., Inc., 77 Cal. App. 4th 66 (2000).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Alejo v. City of Alhambra (November 1999 issue), time for grant or denial of review extended to March 3, 2000.

Circuit City Stores, Inc. v. Ahmed (December 1999 issue), petition for certiorari filed, Feb. 16, 2000.

Comedy III Prods., Inc. v. New Line Cinema (February 2000 issue), now reported at 200 F.3d 593 (9th Cir. 2000).

Duncan v. Department of Personnel Admin. (February 2000 issue), now reported at 77 Cal. App. 4th 1166 (2000).

Gelini v. Tishgart (January 2000 issue), petition for review filed (Feb. 7, 2000).

Interstellar Starship Serv., Ltd. v. Epix, Inc. (August 1999 issue), cert. denied, 2000 WL 1997436 (Feb. 22, 2000).

Keimer v. Buena Vista Books, Inc. (November 1999 issue), time for grant or denial of review extended to March 3, 2000.

Kelsey v. Waste Management of Alameda County (December 1999 issue), review denied (Feb. 16, 2000).

Lagatree v. Luce, Forward, Hamilton & Scripps (October 1999 issue), review denied (Jan. 19, 2000).

Lupash v. City of Seal Beach (December 1999 issue), review denied (Jan. 13, 2000).

Roberts v. Sentry Life Ins. (December 1999 issue), review denied (Feb. 16, 2000).

Saelzler v. Advanced Group 400 (February 2000 issue), now reported at 77 Cal. App. 4th 1001 (2000).

Sposato v. Electronic Data Sys. Corp. (October 1999 issue), cert. denied, 2000 WL 36293 (Feb. 28, 2000).

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