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November 1997 
Vol. 3 No. 11 ISSN 1087-6219
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A three-judge panel of the Ninth Circuit has ruled that a voter pamphlet did not adequately inform voters about the effect of Proposition 140. The decision invalidates California's lifetime term limits.
In November 1990, California voters amended the California constitution to limit each State Senator to two terms, and each Assembly Member to three terms. The California Supreme Court ruled that the amendment imposed a lifetime ban, and upheld its constitutionality. California State Legislature v. Eu, 54 Cal. 3d 492 (1991), cert. denied, 503 U.S. 919 (1992).
The Ninth Circuit said that the wording of the ban was ambiguous. It could have meant a lifetime ban. It also might have limited only the number of consecutive terms. That is, a legislator could be elected to additional terms after sitting out a term.
Voters have a fundamental right to elect their chosen candidates to office. Proposition 140 burdens the exercise of that right by telling voters that they may not vote for candidates who have already served the specified number of terms. That burden requires a court to assess carefully the adoption process, to ensure that it does not erroneously infringe the voters' rights. In this case, the ballot materials prepared by the State, and the arguments by the measure's proponents, did not tell voters that Proposition 140 imposed a lifetime ban. That made its adoption unconstitutional.
In dissent, Judge Sneed said that the arguments in opposition to Proposition 140 clearly pointed out that legislators would be “banned for life” after serving the specified number of terms. There was also another proposition on the same ballot that would have expressly adopted limits only on consecutive terms. The voters rejected it by a majority of nearly two-to-one. Those facts showed that the voters knew what they were doing.
Jones v. Bates, 1997 WL 629807 (9th Cir. Oct. 7, 1997).
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The Ninth Circuit has ruled that San Francisco District Attorney Arlo Smith did not violate the First Amendment by discharging one of his Head Attorneys who had decided to run for Smith's office. The discharged assistant, William Fazio, was an at-will employee who served in a policymaking position.
As a general rule, public employers must balance their interests in promoting efficiency against their employees' First Amendment rights with respect to matters of public concern. Pickering v. Board of Education, 391 U.S. 563 (1968). However, they may fire “policymakers” for political reasons. Elrod v. Burns, 427 U.S. 347 (1976).
A public employee is not a “policymaker” unless the employer demonstrates that political considerations are appropriate requirements for effective performance. For example, assistant public defenders are not policymakers, because they represent individual defendants rather than society as a whole. Branti v. Finkel, 445 U.S. 507 (1980).
Assistant district attorneys are policymakers. They have broad duties, and serve society as a whole. Therefore, discharging Fazio for running against Smith was not a First Amendment violation.
Fazio v. City and County of San Francisco, 1997 WL 612904 (9th Cir. Oct. 7, 1997).
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The Ninth Circuit has reminded litigants that failure to comply with its briefing rules can have serious consequences. It insists that “parties not clog the system by presenting us with a slubby mass of words rather than a true brief.”
The appellant in the case before the court committed many sins. (1) Its brief did not discuss the appellate standard of review. (2) Its citations to the record were sparse and general, “leav[ing] it up to the court to attempt to find the asserted information; alas, much of it is not there at all.” (3) Its brief exceeded the permissible word count. (4) It cited California authorities that had been depublished weeks before it filed its brief.
As a further demonstration of its disregard for the rules, appellant ignored a motion to dismiss the appeal that pointed out its failures. It then omitted the table of contents and table of authorities from its reply brief. In the Ninth Circuit's words: “Enough is enough. We strike the N/S briefs and dismiss its appeal.”
Hesitant to dismiss a meritorious appeal for procedural irregularities, the court reviewed the District Court's decision for error. It found none. “We decided that we should give N/S the benefit of our close review, but it is not entitled to have us expatiate on our reasons for finding its case unmeritorious.”
N/S Corp. v. Liberty Mutual Ins. Co., 1997 WL 656358 (9th Cir. Oct. 23, 1997).
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The Santa Ana division of the Fourth District Court of Appeal has affirmed the dismissal of a sports fisherman's personal injury action. By participating in the sport he assumed any risks inherent in the nature of the sport.
Joseph Mosca and David Lichtenwalter went ocean fishing off San Clemente Island. Lichtenwalter's line became entangled in kelp. When it was freed, the line “sling-shotted” back into the boat, striking Mosca in the eye with the sinker.
Under the primary assumption of the risk doctrine, a participant in a sporting activity does not owe a tort duty to another participant to guard against risks that are inherent in the activity. Knight v. Jewett, 3 Cal. 4th 296 (1992). The risk of injury from flying hooks and sinkers is inherent in sportfishing. Therefore, Mosca did not have a claim.
Mosca v. Lichtenwalter, 1997 WL 632929 (Cal. Ct. App. Sep. 30, 1997).
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The San Diego division of the Fourth District Court of Appeal has explained the circumstances in which Civil Code section 47(b)'s absolute privilege applies to pre-litigation conduct. What matters is whether litigation was seriously considered, not whether a complaint was actually filed.
On October 26, 1992, Kevin Kinsella's attorney wrote to DepoTech's chairman that a business plan contained several false claims about Gary Aronson. The letter asserted that the claims reflected adversely on Kinsella, and opined that they violated unfair competition law. It threatened “appropriate legal action” if DepoTech did not take corrective steps. Kinsella did not sue. however, in June 1993, Aronson sued Kinsella for defamation based on the October 26 letter.
Section 47(b) protects a communication made in a judicial or quasi-judicial proceeding, as long as the communication has a logical relation to the proceeding. It also extends to communications related to a lawsuit that is contemplated in good faith and under serious consideration.
In this case, Aronson argued that there was an issue of fact as to whether the letter was written with malice. However, the good faith requirement does not turn section 47(b)'s protection into a qualified privilege when pre-litigation communications are involved. Therefore, it did not matter whether Kinsella made the statements with malice. The October 26 letter was “a classic prelitigation demand letter.” There was no dispute that Kinsella honestly believed that he had a viable claim. Failure to file a complaint did not defeat the privilege. DepoTech had eliminated the need for litigation by substantially complying with the demands in the letter.
Aronson v. Kinsella, 1997 WL 627533 (Cal. Ct. App. Oct. 10, 1997).
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The Santa Ana division of the Fourth District Court of Appeal has affirmed the dismissal of a constructive discharge claim based on alleged sexual harassment. The decision cited the employer's conduct as “a textbook example of how to respond appropriately to an employee's harassment complaint.”
Bernardine Casenas was a sales representative for Fujisawa USA, Inc. In the course of contesting an appraisal, she accused her district manager of sexual harassment. She also filed a complaint with the Equal Employment Opportunity Commission. Fujisawa investigated the charge by interviewing the district manager and all the other sales representatives who reported to him. It then gave the district manager a written reprimand, which specified the ways in which his conduct was unacceptable. It warned that further misconduct could lead to termination. It also directed the district manager to stay away from Casenas.
Casenas continued to complain about her appraisal and about not being considered for a manager's position. Management personnel considered her concerns, and met with her for more than five hours. A couple of weeks later, Casenas resigned, claiming that she had been forced out by the lack of opportunity for further advancement. She attributed her position to retaliation for having complained about sexual harassment.
A constructive discharge claim requires proof of conditions so intolerable that a reasonable person would have no reasonable alternative except to quit. Failures to promote, demotions, reductions in pay, and poor performance ratings are not enough to prove up the claim. Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 (1994).
Casenas's evidence did not even come close to satisfying those requirements. In the Court of Appeals' words: “We do not know what more the employer could have done to accommodate Casenas, short of ceding its managerial prerogative to her.”
Casenas v. Fujisawa USA, Inc., 67 Cal. Rptr. 2d 827 (Ct. App. 1997).
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The Ninth Circuit has refused to recognize the preclusive effect of a class action settlement reached in Delaware state court. It found that the class was not adequately represented.
In Matsushita Elec. Indus. Co. v. Epstein, 116 S.Ct. 873 (1996), the Supreme Court ruled that a settlement in Delaware state court could release federal securities claims that fell within the exclusive jurisdiction of the federal courts. It expressly declined to rule on a contention that the settlement should not be recognized because the class representatives did not fairly and adequately protect the interests of the class.
On remand, the Ninth Circuit took up the due process issue, and determined that the class was not adequately represented. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1984), the Supreme Court held that an absent class member had a due process right to adequate representation. Even if the Delaware court determined that there was adequate representation in the action before it, it could not bind absent class members if adequate representation was indeed lacking in that action. Therefore, class members were free to litigate their claims in a federal class action.
Epstein v. MCA, Inc., No. 92-55675 (9th Cir. Oct. 22, 1997).
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Subsequent treatment of decisions reported on in earlier issues:
Gutowsky v. County of Placer (April 1997 issue), cert. denied (U.S. Oct. 14, 1997).
Loder v. City of Glendale (February 1997 issue), cert. denied (U.S. Oct. 6, 1997).
McGettigan v. Bay Area Rapid Transit Dist. (October 1997 issue), now reported at 57 Cal. App. 4th 1011 (1997). Petition for review filed (Oct. 1, 1997).
Oona R.-S. v. McCaffrey (September 1997 issue), now reported at 122 F.3d 1207 (9th Cir. 1997).
Papike v. Tambrands, Inc. (March 1997 issue), cert. denied (U.S. Oct. 6, 1997).
Puerta v. United States (September 1997 issue), now reported at 121 F.3d 1338 (9th Cir. 1997).
Ram v. Rubin (August 1997 issue), petition for certiorari filed (Sep. 23, 1997).
Reno v. Baird (October 1997 issue), now reported at 57 Cal. App. 4th 1211 (1997).
Sharon P. v. Arman, Ltd. (July 1997 issue), review granted (Oct. 22, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Somers v. Thurman (April 1997 issue), cert. denied (U.S. Oct. 6, 1997).
Vons Companies, Inc. v. Seabest Food, Inc. (January 1997 issue), cert. denied (U.S. Oct. 6, 1997).
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