October 2001 Vol. 7 No. 10 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer

In This Issue

• Proposition 209 fells five affirmative action programs
• Snowboarder not liable for collision with skier on snowboarding slope
• Armendariz minimum requirements do not apply to non-statutory claims
• Prisoners have a right to procreate
• Dismissal of claims arising out of investigation and prosecution of child abuse charges affirmed
• UPDATES

Use the Newsletter Link to request a free e-mail subscription to the newsletter.

Proposition 209 fells five affirmative action programs

The Third District Court of Appeal in Sacramento has ruled that five statutory affirmative action programs are unlawful. They violated state and federal principles of equal protection and Proposition 209's anti-affirmative action provisions:

State lottery. State law requires the Lottery Commission to maximize participation by socially and economically disadvantaged small businesses, and defines disadvantaged to include racial, ethnic and gender classifications. The fact the commission may not have engage in such classifications in practice was not a defense, because it lacked authority to cure the statute by refusing to enforce it.

Professional bond services. The statutory requirement that each department that bids out bond services establish goals for participation by minorities, and provide preferential notice was unlawful. However, the court upheld the monitoring and reporting requirements.

Civil service. Although the requirement that the State Personnel Board establish goals and timetables for minority participation in the state workforce could not be justified by statistical evidence of underutilization, a provision designed to prevent disparate impact on minorities where there is evidence of past discrimination was not unlawful on its face.

Community colleges. The court invalidated provisions requiring goals and timetables for minority hiring, and focused outreach efforts. Although outreach aimed at broadening the pool of applicants is permissible, the outreach must not rely on race or gender classifications. The provisions on data collection and reporting also fell, because they were too closely bound up with the unlawful preferential scheme.

State contracts. Both state and federal appellate courts had previously invalidated statutory provisions that gave preference in state contracts to minorities. However, this court upheld the data collection and reporting requirements as severable and justified by a government interest.

Connerly v. State Personnel Bd., 2001 WL 1003304 (Cal. Ct. App. Sep. 4, 2001).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Snowboarder not liable for collision with skier on snowboarding slope

The Fifth District Court of Appeal in Fresno has ruled that the primary assumption of the risk doctrine applies to a skier who skis down a snowboarding slope.

Steve Petrick, a snowboarder, collided with Robert Mastro, a skier, while both were descending a slope called “Boulder Alley,” at the Sierra Summit Ski Resort. Mastro suffered a severe knee injury.

When injury occurs in a sports setting, the court must decide whether the nature of the sport and the relationship of the defendant and the plaintiff to the sport support the legal conclusion of duty. If there is no duty, then the court deems there to have been primary assumption of the risk.

In this case, the application of the doctrine did not turn on whether Petrick and Mastro were considered co-participants in the same sport. The question was whether Petrick, the snowboarder, engaged in any activity that posed risks that were not inherent in snowboarding.

One who is pursuing his sport in an appropriate venue owes no duty of care to those who occupy the same venue to engage in other activities. By occupying the same venue, the other individuals assume the risks inherent in snowboarding.

Mastro argued that Petrick's conduct was outside the range of ordinary activity found in the sport of snowboarding. However, the thrust of his argument was that snowboarding was inherently reckless, because snowboarders always have a blind sport. That would not take the case out of primary assumption of the risk.

In sum, snowboarding down a hill where both skiing and snowboarding are authorized, even if doing so too fast and out of control, is at best careless or negligent conduct, and is not so reckless as to be totally outside the range of ordinary activity found in the sport.

Mastro v. Petrick, 2001 WL 1143741 (Cal. Ct. App. Sep. 28, 2001).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Armendariz minimum requirements do not apply to non-statutory claims

The Second District Court of Appeal in Los Angeles has ordered arbitration of a dispute based on an arbitration clause that did not meet the minimum standards laid down for statutory discrimination claims in Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000).

Alexander Little signed three arbitration agreements that required him and his employer to arbitrate any disputes. Because the agreement did not specify who should pay the costs of arbitration, California law required the parties to split the cost.

Little sued his employer for wrongful termination based on alleged whistle blowing. He did not allege a violation of the Fair Employment and Housing Act (FEHA). The trial court denied the employer's motion to compel arbitration, but the court of appeal reversed.

In Armendariz, the California Supreme Court ruled that courts could only require arbitration of FEHA claims if the arbitration agreement met five minimum requirements, one of which was that the employee did not have to pay more in costs than required to file a lawsuit.

Although the arbitration agreement in this case required the employee to pay more than what Armendariz allowed, that did not prevent enforcement of the agreement. The Armendariz minimum requirements only apply to statutory claims.

All arbitration agreements are subject to scrutiny under general unconscionability principles. The one in this case was not unconscionable. It required both the employer and the employee to arbitrate call claims between them. The requirement that the parties split costs by itself did not render the agreement unconscionable.

Little v. Auto Stiegler, Inc., 2001 WL 1079686 (Cal. Ct. App. Sep. 17, 2001).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Prisoners have a right to procreate

The Ninth Circuit has reversed the dismissal of a prisoner's complaint that he was not allowed to make arrangements to inseminate his wife artificially. The prison warden did not articulate legitimate penological reasons for the restriction.

William Gerber is serving a 100 years to life imprisonment plus eleven years in state prison. He and his 46-year old wife wish to conceive a child. Because prison regulations prohibit conjugal visits for prisoners like Gerber, he asked the prison authorities to allow him to provide a semen sample to a laboratory to be used for artificial insemination. He offered to pay for a doctor to supervise the procedure at the prison. The prison denied his request.

Prisoners retain such constitutional rights as are not inconsistent with their status as a prisoner, or with the legitimate penological objectives of the corrections system. Although no previous case addressed the survival of the right to procreate, the Supreme Court has ruled that prisoners have a right to marry, and not to be sterilized. Turner v. Safley, 482 U.S. 78 (1978); Skinner v. Oklahoma, 316 U.S. 535 (1942). Those cases support a ruling that prisoners retain a right to procreate.

Earlier court of appeals cases that rejected a right to conjugal or contact visits did not require a different result here. Recognition of a general right to procreate is not inconsistent with a ruling that there is no specific right to conjugal or contact visits. Those rulings may also have rested on the determination that legitimate penological objectives justified restrictions on those particular ways of exercising the right.

In this case, the warden could not identify legitimate objectives to support the denial of Gerber's request, at this stage:

First, the prison system's policy of treating male and female prisoners equally to the extent possible was not implicated, because men and women were not similarly situated as a result of biological differences.

Second, the risk that prisoners might misuse semen samples by throwing it at others, or sending it through the mail to individuals who do not want it had not factual support on a motion to dismiss. On remand, the district court may consider the argument on an appropriate record.

Third, the warden claimed that recognition of the right might subject the State to lawsuits by female prisoners seeking comparable rights, and by others for mishandling semen samples. Fear of liability is not a valid reason for restricting constitutional rights.

Gerber v. Hickman, 2001 WL 1008205 (9th Cir. Sep. 5, 2001).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Dismissal of claims arising out of investigation and prosecution of child abuse charges affirmed

The Ninth Circuit has ruled that there is a clearly established right not to be subjected to criminal charges on the basis of evidence that the government deliberately fabricated. It went on to affirm dismissal of a claim by the subject of a child abuse investigation, because his evidence did not establish deliberate fabrication.

In the course of an investigation of child abuse charges against Robert Devereaux, a police detective and a social worker conducted lengthy interviews of several of Devereaux's foster children. Two of the children, after initially denying abuse, said that Devereaux had raped them. The prosecution dropped those charges in return for a plea to lesser charges that did not involve sexual abuse.

He sued various individuals involved in the investigation for using improper interviewing techniques. The district court dismissed the lawsuit on summary judgment, and the Ninth Circuit affirmed.

Although there is a right not to be charged on the basis of deliberately fabricated evidence, proof of improper interviewing techniques does not establish infringement of such a right. The plaintiff must establish use of techniques so coercive and abusive that the interviewer should have known that they would yield false information.

Devereaux's evidence did not meet that standard. Interviewers of child witnesses in sexual abuse cases must be permitted to exercise some discretion in deciding when to accept initial denials at face value, and when to reject them and proceed further.

Devereaux's established no more than initial disbelief, followed by aggressive questioning. That was not deliberate fabrication.

Devereaux v. Abbey, 2001 WL 1008128 (9th Cir. Sep. 5, 2001).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Bachelder v. America West Airlines, Inc. (September 2001 issue), now reported at 259 F.3d 1112 (9th Cir. 2001).

Catholic Charities of Sacramento, Inc. v. Superior Court (July 2001 issue), review granted (Sep. 26, 2001). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Comedy III Productions, Inc. v. Gary Saderup, Inc. (June 2001 issue), petition for certiorari filed (Aug. 28, 2001).

Golden Gateway Center v. Golden Gateway Tenants Ass'n (September 2001 issue), now reported at 26 Cal. 4th 1013 (2001).

Holmes v. California Nat'l Guard (July 2001 issue), now reported at 90 Cal. App. 4th 297 (2001), time to grant or deny review extended to Oct. 29, 2001.

Luo Yu Jie v. Liang Tai Knitwear Co. (June 2001 issue), review denied (Aug. 29, 2001).

M.G. v. Time Warner, Inc. (June 2001 issue), review denied (Sep. 12, 2001).

Pavlovich v. Superior Court (September 2001 issue), modified (Aug. 31, 2001), petition for review filed (Sep. 25, 2001).

Romero v. Superior Court (July 2001 issue), time to grant or deny review extended to Oct. 16, 2001.

Wittkopf v. County of Los Angeles (August 2001 issue), petition for review filed (Aug. 28, 2001).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Privacy Policy