Government Liability Update

Public Entity's Attorneys Did Not Violate Minors' Constitutional Privacy Rights by Reviewing the Plaintiffs' Juvenile Case Files without Obtaining a Court Order

In A.C. v. Cortez, published May 13, 2022, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 suit against a county and its attorneys.  In an earlier lawsuit, the minor plaintiffs sued the county and county social workers for allegedly violating their 4th Amendment rights by interviewing them in the course of a child-abuse investigation, without a court order or parental consent.  Attorneys defending the county in that action reviewed the county's child-abuse investigation file without first obtaining a court order.  The plaintiffs then brought this action, alleging that the attorneys who accessed the file violated their constitutional right to privacy.  They relied on Gonzalez v. Spencer (9th Cir. 2003) 336 F.3d 832.  The district court granted the defendants' motion to dismiss.  In an unpublished decision, the 9th Circuit affirmed the dismissal as to the individual defendants based on qualified immunity.  The decision did not address the plaintiff' Monell claim against the county.  On rehearing, the 9th Circuit addressed the Monell issue.

The 9th Circuit concluded that the Gonzalez case did not identify a per se constitutional right in juvenile records that is always violated by third-party access.  Instead, the court applied the balancing test for determining when the federal constitutional right to informational privacy is properly infringed based on a showing of proper governmental interest.  Under this test, the court presumed that the files contained some highly sensitive information.  The potential for harm seemed low, since the information had not been used in any proceeding.  There were safeguards against misuse, because the plaintiffs allege only the county's attorneys reviewed the county's files; the attorneys have a duty to keep their clients' files confidential.  The most crucial factor is the need for access.  The need is high, because the county's attorneys have a duty to represent their client, and they concluded that adequate representation required reviewing the files.  The plaintiffs' prior lawsuit pertaining to how the county's employees conducted themselves with the plaintiffs gave rise to the attorneys' need to access the files.  The situation is analogous to litigation waiver in other areas of the law.  The need for access is sufficiently high that it outweighs the lesser possibility of harm.  The district court therefore properly dismissed the Monell claim.

Because State Law Did Not Clearly Establish Contractor Had Property Interest in Municipal Contract, City Attorney Entitled to Qualified Immunity to Due Process Claim for Recommending Ending Contract

In DePaul Industries v. Miller, published September 28, 2021, the 9th Circuit Court of Appeals reversed denial of qualified immunity to a defendant city attorney in a suit under 42 U.S.C. section 1982.  The plaintiff contracted with the city to provide unarmed security at city buildings.  The plaintiff was a qualified nonprofit agency for persons with disabilities, or QRF, under an Oregon law that requires cities to contract with QRFs in certain circumstances.  An employee of the plaintiff sued the city for alleged retaliation, and the plaintiff declined to defend and indemnify the city under an indemnification clause in the contracts.  When the contracst ended, the city elected to modify its security services by requiring that the security service employees be armed.  The plaintiff was the only QRF in the county providing unarmed security services.  The city decided not to renew the plaintiff's contracts, and awarded them to another security service.  The plaintiff sued the city and various city officials, including the city attorney, in their individual and official capacities.  One claim alleged the city attorney violated the plaintiff's substantive and procedural due process rights.  The city attorney moved for summary judgment based on qualified immunity.  The district court decided that the plaintiff had a clearly established property interest in its contracts with the city, and that a reasonable jury could conclude that the city used a pretext to cancel the contracts.

The 9th Circuit held that the district court erred, because the plaintiff's property interest in the contracts was not clearly established.  The Oregon QRF statute is not clear about whether it creates a protected property interest in annually renewable city contracts.  No Oregon court had considered the question.  Two cases cited by the district court were district court opinions that did not address QRFs at all.  The 9th Circuit noted its hesitancy to rely on district court decisions for the qualified immunity analysis.  Because the plaintiff did not have a clearly established property right to be protected by due process, the city attorney was entitled to qualified immunity.

Circuit Precedent Did Not Clearly Establish That Accessing Juvenile Records without a Court Order Violated the Fourth Amendment

In Nunes v. Arata, Swingle, Van Edmond, & Goodwin, published December 29, 2020, the 9th Circuit Court of Appeals reversed a district court order denying a motion to dismiss brought by defendant county counsel and an outside law firm for the county that was based on qualified immunity.  The county separated the plaintiffs' children from plaintiffs during an investigation of suspected child abuse.  The plaintiffs sued the county, challenging the separation.  The outside counsel represented the county during the separation case, during that litigation, the defendant county counsel provided the outside firm with the children's juvenile records, without first obtaining an order from the juvenile court per Welfare & Institutions Code section 827.  County counsel believed that section 827 did not require court authorization to access the records and disclose them to the county's outside counsel.  The plaintiffs also alleged that the records contained information protected by HIPAA.  The plaintiffs sued the county, the county counsel, and the outside firm under 42 U.S.C. section 1983.  They alleged that the defendants violated their state and federal constitutional rights to privacy.  The district court granted the motion to dismiss as to the Fourteenth Amendment, but ruled that the defendants violated a right to privacy in juvenile records was clearly established by Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), because the majority opinion found a viable claim under the Fourth Amendment when an attorney defending a county wrongly accessed a juvenile case file in violation of section 827, and the dissenting opinion clarified the Fourth Amendment right implicated by the violation.  The defendants brought an interlocutory appeal from denial of qualified immunity.

The 9th Circuit ruled that Gonzalez did not clearly establish a Fourth Amendment violation.  Gonzalez was a split decision in which the per curiam majority wrote a two-page opinion.  The majority did not identify a specific constitutional right or conduct a constitutional analysis.  Instead, the opinion held that if the attorney in Gonzalez violated a constitutional rights, the plaintiff was entitled to at least nominal damages and the attorney was not entitled to qualified immunity.  That the constitutional right at issue was the Fourth Amendment could be gleaned only from the dissenting opinion.  A strong indication that Gonzalez did not clearly establish any constitutional privacy rights was that district courts did not treat Gonzalez as establishing a constitutional violation.  Such an "opaque" opinion as Gonzalez, which does not explain the origin, nature, and scope of the right at issue, cannot place the constitutional issue "beyond debate."  It therefore cannot so clearly establish the law that every reasonable official acting as the defendants did would have known they were violating the plaintiffs' rights.  The court did not decide whether the Constitution provides a privacy rights in juvenile records.  A concurring judge opined that an en banc court should reconsider Gonzalez and resolve whether a constitutional right to privacy exists in juvenile records.

 

Police Department and City Attorney Violated Officer's Attorney-Client Privilege, but Recusal of City Attorney's Office Not Warranted

In City of San Diego v. Superior Court (Hoover), published December 19, 2018, the Fourth District Court of Appeal, Division 1 issued a writ vacating a trial court order disqualifying a city attorney's office from defending the city in an employment lawsuit.  The real party in interest, a police detective, sued the city, her employer, alleging harassment and retaliation.  While that suit was pending, the attorney representing her in that lawsuit filed another suit against the city for another client, alleging the city failed to properly investigate a sexual assault and then covered the suit up.  An Internet news service referred to a police report that the service had obtained.  Internal Affairs investigated to determine if and how the news service had obtained a confidential police report.  IA interviewed the detective to see if she was the source of the leak. She was warned failure to answer could be treated as insubordination, punishable by termination.  She admitted accessing the report.  She was asked about her communications with her attorney.  Her union representative objected based on attorney-client privilege.  The detective started answering.  The rep again objected and advised the officer not to answer.  The investigators stopped asking about the communications.  Later that day, one of the investigators contacted the detective and told her the city attorney's office had concluded the privilege did not preclude questions about the detective's communications with her attorney as they related to the leaked police report.  She was ordered to return for a follow-up interview in eight days.  The attorney learned of the interviews, and threatened to move to disqualify the city attorney if the city asked the detective about their communications.  At the follow-up interview, the detective had an attorney provided by the police officers' association, and an attorney from the city attorney's office was present.  The detective said she learned of the second lawsuit from her attorney's group text message, and then called him on the teslphone about a different issue.  She admitted printing out the police report regarding the second case out of curiosity, and stated she then shredded it.  The investigators pressed the detective for details of what information the detective's attorney provided during their phone conversation. The deputy city attorney asked whether the second case's allegations were encompassed in the detective's case.  After the interview, the trial court granted the motion to disqualify the city attorney in the detective's harassment and retaliation action, on the grounds that the IA interview violated the attorney-client privilege and Rule 2-100 of the Professional Rules of Conduct, barring a lawyer from contacting a litigant known to be represented by counsel.

The appellate court agreed with the trial court that forcing the detective to divulge the contents of her conversation with her attorney violated the attorney-client privilege.  While the contents of the group text were not confidential communications and were not privileged, the detective's subsequent phone conversation with her attorney was protected.  The city erred by failing to apply ex parte to the court in the detective's lawsuit for a determination of whether the communications were protected by attorney-client privilege before resuming the interview and forcing the detective to speak about the attorney-client communications.  The appellate court also agreed that the Rules of Professional Conduct precluded the deputy city attorney from directly questioning the detective during the interview about matters concerning her lawsuit, without her attorney present and without that attorney's consent.  The deputy should have confined his participation in the meeting to advising the investigators.  But the appellate court, after reviewing the sealed transcript of the interview, concluded there was no reasonable likelihood that the misconduct would give the city an unfair advantage in the detective's suit.  Since attorney disqualification must be prophylactic rather than punitive, and disqualifying an entire city attorney's office should be done with caution, the disqualification order was reversed.

Public Defender Was Not Driving in the Scope of His Employment when Driving Personal Vehicle Home from Office

In Newland v. County of Los Angeles, published June 18, 2018, the Second District Court of Appeal, Division 5 reversed denial of a defense motion for judgment notwithstanding the verdict in an auto accident case.  The driver was a county public defender who worked in the Norwalk courthouse, and commuted from Long Beach.  He needed his personal vehicle for work from time to time, when trying cases in branch courts, meeting clients in jail, and inspecting crime scenes.  On days when he needed his car, he brought it.  When he did not, and public transit was available, he took it.  On the day of the accident, he did not need his car for work.  Convenient public transit was not available from his home in Long Beach.  Driving from the courthouse home at the end of the day, he was involved in the subject accident.  The jury found that the driver was driving in the scope of his duty, and awarded damages against the employer county.

The court reversed the finding that he was driving in the scope of his duties, because no evidence supported it.  Generally an employee is not acting within the scope of his duties when driving his personal vehicle to and from work.  The exceptions are where the employee is using his personal vehicle for work purposes, and where the employee's use of his personal vehicle provides his employer with a benefit.  Here, while the driver occasionally used his personal vehicle for work purposes, he did not have to do so that day. He did not have any emergency situations that required him to have a vehicle available. There was no evidence that he was required to drive to and from work on the day of the accident for work purposes.  Driving to and from work was not driving within the scope of his employment.

The court split on whether the case should be remanded to determine whether the driver's use of his vehicle benefited the county.  The majority ruled no remand was necessary.  There was no evidence that the county received a benefit from the driver's use of his car to drive to and from work on a day when he did not need his vehicle available for work purposes.  A dissenting justice opined that the benefit issue should go to the jury.

County Counsel's Breach of Contract Suit against County for Employment Investigation Does Not Survive Anti-SLAPP

In Guarino v. County of Siskiyou, ordered published March 29, 2018, the Third District Court of Appeal affirmed a trial court order granting an anti-SLAPP special motion to strike the plaintiff's complaint.  The plaintiff was county counsel.   According to the plaintiff's allegations,i n 2011, the county investigated a complaint by the plaintiff's subordinate that the plaintiff had harassed the subordinate.  The investigation was closed by the county with no finding of wrongdoing.  At the end of the year, the county appointed the plaintiff for a second term.  In 2012, the subordinate resigned and filed a federal suit against the plaintiff and the county.  Soon after, the county board of supervisors conducted a closed-session employment review of plaintiff, and instructed him to terminate the premises.  Another investigation exonerated the plaintiff.  The board voted to rescind the plaintiff's second term.  The complaint alleged these board votes were illegal, because they did not follow the procedure under the Government Code for removing a county counsel.  The administrative officer then filed an accusation with the county clerk under the Government Code procedure for removing a county counsel.  The plaintiff resigned.  He then sued the county, the board of supervisors, and the county administrative officer on assorted grounds.  The causes of action at issue in the appeal were breach of employment contract and breach of employment contract for constructive discharge.

The appellate court ruled that the first prong of anti-SLAPP was established, because the investigation and the resulting actions of the county, board, and administrative officer were all protected speech.  On the second prong, the plaintiff had the burden of showing a probability of prevailing on the merits.  He could not make that showing on his breach of contract causes of action, because public employment is held by statute, not contract.

Agency That Properly Withholds Documents from Production under the Public Records Act under Deliberative Privilege May Not Be Ordered to Produce Index of Withheld Documents That Reveals Confidential Information

In Labor and Workforce Development Agency v. Superior Court (Fowler Packing Co.), published January 8, 2018, the Third District Court of Appeal issued a writ of mandate directing a trial court to vacate an order directing the Agency to produce an index identifying the author, recipient, matter, and nature of exception for each document the Agency withheld from a California Public Records Act request.  The governor tasked the Agency with drafting and enacting a piece of legislation.  In preparing legislative proposals for the bill, the Agency communicated with Legislative Counsel.  It also sought and received confidential input from key stakeholders including representatives of business and labor.  A CPRA request asked for all public records from the Agency regarding the bill.  The agency withheld documents based on the Deliberative Privilege and attorney work protection.  The trial court permitted the Agency to withhold from disclosure documents protected by the Deliberative Process exemption and Evidence Code section 1040 (protecting confidential government communications).  But it directed the Agency to prepare the challenged index.  it also concluded that attorney work product protection did not apply to communications between the Agency and Legislative Counsel, concluding that the Counsel's client was the Governor, not the agency.

The appellate court held that the trial court erred in ordering that the authors and recipients of the exempt documents be revealed in the index.  The Deliberative Process exemption encourages open exchange of ideas before a legislative decision is made, in recognition that people will not openly share ideas if their ideas and involvement are revealed to the public.  By revealing the identities of the stakeholders who provided the information, the court's order would not serve the Deliberative Process exemption's purpose. The trial court also erred in determining attorney work product protection did not apply.  Because the Governor ordered the state Agency to take the lead in drafting and enacting the legislation, the attorney-client relationship between the Governor and Legislative Counsel extended to the Agency.

Public Entity May Not Retaliate against Employee for Disclosing Entity's Potential Fraud upon the Court

In Whitehall v. County of San Bernardino, published November 15, 2017, the Fourth District Court of Appeal, Division 2, affirmed a trial court order denying the defendant county's Anti-SLAPP special motion to strike the plaintiff social worker's whistleblower suit under Labor Code section 1102.5.  The deputy director of Children and Family Services instructed the plaintiff to withhold photographs of a home being investigated for a baby's death, from which four other children were removed, and to provide other photographs that had been altered.  The plaintiff gave the assigned deputy county counsel a disc with all of the photographs obtained from the police.  She was concerned that the dependency court was not being given an accurate picture of the home.  Soon after, plaintiff was removed from the case and was instructed not to discuss the case with the new social worker on the case.  The plaintiff then learned the original social worker on the matter had been fired.  A new trial, assigned to a different judge, was ordered on the ground that the previous social worker had lied, and the evidence previously provided to the court was marked confidential with instructions that the new judge not view it.  The plaintiff decided to file a motion with the court stating that a fraud had been perpetrated upon it.  She consulted with an attorney, who prepared the filing.  She and two other social workers filed the motion.  Six days later, the plaintiff was placed on administrative leave.  The county stated she was put on leave while it investigated her for potential improper release of confidential information.  Two months later, the county decided to terminate the social worker.  She resigned first.  She then filed the whistleblower suit.

The appellate court held that the trial court properly denied the county's anti-SLAPP motion.  The appellate court disagreed with the trial court's ruling that the suit arose out of protected activity by the county in investigating the potential release of confidential information.  The plaintiff's cause of action did not arise from the investigation, but from the alleged retaliatory adverse employment action, which is not protected activity.  The appellate court agreed with the trial court's ruling that the plaintiff showed a sufficient chance of prevailing; the timing of the administrative leave, coming six days after the plaintiff's report, shows at least minimal merit to the retaliation claim.  Further, the plaintiff's disclosure of confidential information to the court cannot be deemed public disclosure of confidential information where county CFS is deemed an arm of the court, and dependency cases are maintained confidential by the court.  The county was not immune from liability under Government Code sections 820.2 or 815.2/821.6, because the action was brought against the county, not an employee, and as a matter of public policy actions against a public entity for claims of discharge from or termination of employment based on whistleblower claims are not barred by governmental immunity.  The court held that privilege did not apply to either presentation of false or manipulated evidence, or retaliation against an employee for disclosing a possible fraud upon the court.  In the context presented, the administrative leave was an adverse employment action.  Finally, the appellate court rejected the defense that the plaintiff acted with unclean hands.

County-Employed Attorney's Comments to Press about County Case She Handled Were Part of Her Duties as an Attorney and So Were Not Protected by the First Amendment

In Brandon v. Maricopa County, published February 23, 2017, the 9th Circuit Court of Appeals reversed a judgment, based on jury verdict, in favor of an attorney formerly employed by the defendant county.  While the attorney was a county employee, a newspaper reporter called her on her office line and asked her to comment about the county's settlement of a lawsuit in which she was the attorney of record.  The reporter suggested the county had made an overly generous settlement offer to prevent the depositions of county officials.  The attorney responded, "I don't know why they did what they did, and I'm sure they had their reasons."  Her employment was later terminated.  The attorney sued the county and county officials for employment retaliation in violation of her 1st Amendment rights.  A jury found in favor of the attorney, and awarded her nominal damages.  The defendants appealed, arguing that as a matter of law the attorney was acting pursuant to her official duties when she spoke to the reporter, and her speech was therefore not constitutionally protected.

The 9th Circuit agreed with the defendants. Speech made by public employees in their official capacity is not insulated from employer discipline by the 1st Amendment but speech made in their private capacity as a citizen is.  The scope and content of the employee's job responsibilities is a question of fact. But a practical inquiry is required.  Here, under that practical inquiry, the attorney had a broad fiduciary duty to her client, the county, that included speaking to the press as a lawyer representing the county. She did not accuse the county of any corruption or serious misconduct.  And she did not violate any official policy by speaking to the press on the matter.  The only possible outcome of this practical inquiry was that the attorney's speech fell under the broad set of official duties she owed the county as its attorney, and so was not constitutionally protected citizen speech.