 |
|
|
|
February 2003 
Vol. 9 No. 2 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
Use the Newsletter Link to request a free e-mail subscription to the newsletter.
Both the Ninth Circuit and the Santa Ana division of the Fourth District Court of Appeal have invalidated California's attempt to create a cause of action for those forced to perform slave labor for Japan and Germany during World War II. California Code of Civil Procedure section 354.6 intrudes on the foreign relations power of the federal government.
The California legislature enacted section 354.6, because it was dissatisfied with how the United States dealt with redress for the injuries suffered by victims of Germany, Japan and their allies after the end of World War II. The federal government had entered into various treaties that provided for limited compensation for some victims. Section 354.6 purported to establish a cause of action to recover compensation for the performance of such slave labor.
In the Mitsubishi Materials case, surviving American prisoners of war attempted to sue Japanese companies under section 354.6. The California Court of Appeal ruled that a waiver provision in the 1951 peace treaty with Japan preempted section 354.6's cause of action.
The Deutsch case was an appeal from one case involving a Hungarian Jew forced to work for a German construction company, and 28 consolidated cases involving those who performed slave labor for Japanese companies. The Ninth Circuit ruled that none of the lawsuits could go forward, but on a broader basis than the California Court of Appeal.
Through a number of provisions, the United States Constitution confers exclusive power over foreign affairs on the federal government. The individual states may not establish their own foreign policies, but may regulate commerce within their borders, even if those actions have some incidental or indirect effect in foreign countries. Section 354.6 invaded the federal government's exclusive authority to resolve war, including those claims associated with it.
Mitsubishi Materials Corp. v. Superior Court, 2003 WL 253877 (Cal. Ct. App. Feb. 6, 2003); Deutsch v. Turner Corp., 2003 WL 139746 (9th Cir. Jan. 21, 2003).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Ventura division of the Second District Court of Appeal has ruled that a single racial remark may make a hostile work environment actionable under the Fair Employment and Housing Act.
Glenda Dee alleged that she was subjected to a hostile work environment at Vintage Petroleum. Paul Strickland, her supervisor's supervisor, required her to discuss very personal matters with him, used abusive language toward her, and said that he would “drag down” anyone who caused trouble for him. When Dee got into an argument with Strickland about making up stories to hide information from her immediate supervisor, Strickland said: “Well, it is your Filipino understanding versus mine.”
As a general rule, a single offensive, racial remark does not create a hostile environment. Two factors distinguished this case from the general rule:
Dee v. Vintage Petroleum, Inc., 2003 WL 253950 (Cal. Ct. App. Feb. 6, 2003).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Third District Court of Appeal in Sacramento has ruled that a supervisor who grants favors to paramours has not engaged in sexual harassment or sex discrimination. Such conduct is based on the romantic relationship, not on sex.
Edna Miller and Frances Mackey worked for the Department of Corrections at Valley State Prison for Women. They claimed that their warden, Lewis Kuykendall, had sexual relationships with three other prison employees. They also alleged that he gave his paramours preferential treatment.
Although the Fair Employment and Housing Act bars discrimination and harassment based on sex, Miller and Mackey did not allege any adverse consequences that they had suffered because of their sex. They were denied the same treatment, not because of their sex, but because they were not the warden's paramours. Male employees received exactly the same treatment.
Further, the plaintiffs had not been subjected to sexual advances or other sufficiently abusive conduct to create a hostile environment. The alleged existence of the sexual relationships and the alleged favors that the subordinates received were not sufficiently severe and pervasive to alter the conditions of their employment.
Mackey v. Department of Corrections, 105 Cal. App. 4th 945 (2003).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Ninth Circuit has ruled that the head of a county public defender's office may be held liable for deprivation of a criminal defendant's right to effective representation under 42 U.S.C. section 1983.
Roberto Hernandez Miranda alleged that two policies of the Clark County public defender's office denied him effective representation and led to his unlawful conviction for murder.
According to Miranda, the public defender's office had a policy of administering lie detector tests and then allocating minimal resources to those who appeared guilty because they failed. It also allegedly had a policy of assigning the least-experienced lawyers to capital cases without sufficient training.
The individual assistant public defender who provided Miranda's defense was not liable under section 1983, because he was not acting under color of law. A public defender representing his or her client in the lawyer's traditional adversarial role is not a state actor for section 1983 purposes. Polk County v. Dodson, 454 U.S. 312 (1981).
Morgan Harris, the head of the public defender's office, was not acting in the lawyer's traditional role. He was acting as the administrative head of the agency, responsible for allocating the office's resources. Therefore, he could be held liable under section 1983. Further, both his policies constituted substantive violations of the right to effective representation.
Miranda v. Clark County, 2003 WL 291987 (9th Cir. Feb. 3, 2003).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Riverside division of the Fourth District Court of Appeal has overturned a damages award to a high school student who claimed that he had not received sufficient due process before a five-day suspension. The due process clause only requires notice of the charges and an opportunity for the student to present his or her side of the story.
Evan Granowitz was suspended for five days after several fellow students accused him of sexually-related misbehavior. Before he suspended Granowitz, the school principal had a meeting with Granowitz and his parents, where he described four kinds of misbehavior that had been reported by other students:
(1) Inappropriate sexual comments and gestures; (2) simulating masturbation or sex; (3) groping of other boys; and (4) grabbing a girl by the buttocks.
To protect the privacy of witnesses and victims, the principal refused Granowitz's demands to provide specific names, dates or locations.
Granowitz sued his school district and various individuals involved with his suspension for violating his due process rights. The trial court awarded him $45,000 in general damages, $50,000 in punitive damages, and attorneys' fees of $75, 268.
The United States Supreme Court has ruled that students facing a suspension of 10 days or less have minimal due process rights, that is, the right to notice of the charges and a hearing. An informal meeting like the one held by the principal is sufficient to satisfy the hearing requirement. There is no requirement that the school provide identities of witnesses, so long as there is enough detail to allow the student to admit or deny the conduct.
The court deplored “the exploitation of the legal system to pursue a case of this ilk. A minor suspension of trivial effect, accomplished with proper constitutional safeguards, has resulted in a costly expenditure of judicial, public, and private resources.”
Granowitz v. Redlands Unified Sch. Dist., 105 Cal. App. 4th 349 (2003).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The First District Court of Appeal in San Francisco has ruled that a speaker at a school board meeting was not subjected to false arrest when a school principal subjected him to a private person's arrest for dumping trash on the floor during a school board meeting.
David McMahon had issues about the trash left by Albany High School students in the neighborhood around their campus. He brought his issues to the attention of the school board at two public meetings.
He brought several bags of trash to a third meeting. After speaking for a few minutes, he spread a tarp on the floor and brought up his bas of trash. The school principal said: “Excuse me, kids are in this room tomorrow, and I hope you're not planning on emptying trash out here on the floor.” The meeting took place in a school multipurpose room that was used for a cafeteria, student assembly room, and an after-school childcare program.
Nonetheless, McMahon dumped at least two bags of trash on the tarp. Some of the trash spilled onto the floor. One of the school board members asked the district superintendent to call the police, “because this is an absolutely inappropriate activity to do in a schoolroom.”
The police arrived, but declined to arrest because the conduct had not taken place in their presence. The superintendent made a private person's arrest for willfully disturbing a public meeting in violation of Penal Code section 403. McMahon claimed a violation of his free speech rights.
The California Supreme Court has limited the reach of section 403 to accommodate free speech principles. A violation requires proof that the defendant substantially impaired the conduct of a meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.
McMahon's actions, as opposed to the content of his expression was disruptive. Even if he did not realize that dumping trash at the meeting violated an implicit custom of school board meetings, the statements by the principal and the board member laid down explicit rules.
McMahon v. Albany Unified Sch. Dist., 104 Cal. App. 4th 1275 (2002).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Subsequent treatment of decisions reported on in earlier issues:
Advanced Bionics Corp. v. Medtronic, Inc. (January 2003 issue), time for grant or denial of rehearing extended to Mar. 19, 2003.
Jimenez v. Superior Court (January 2003 issue), rehearing denied (Jan. 22, 2003).
Pavlovich v. Superior Court (January 2003 issue), stay granted (U.S. Dec. 26, 2002), stay vacated (U.S. Jan. 3, 2003).
Rene v. MGM Grand Hotel, Inc. (December 2002 issue), petition for certiorari filed (Dec. 23, 2002).
Salazar v. Diversified Paratransit, Inc. (December 2002 issue), review granted (Jan. 22, 2003).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Copyright © 2004 Calvin House. Appellate Counsellor® and Appellate Decisions Noted® are registered marks used in commerce by Calvin House since 1995. All rights to those marks are claimed. |
Calvin House |
