ANSWER BRIEF ON THE MERITS

Transcription

1 CALIFORNIA SUPREME COURT CASE NUMBER: IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THOMAS SPIELBAUER, Petitioner/ Appellant, COUNTY 0!' SANTA CLARA; SANT..-1. CLARA COUN1Y PERSONNEL BO:\RD; JOSE VILL\.RREAJ,; Defendants/Respondents,/ After a Decision by the Court of Appeal, Si."\:th Appellate District Court of Appeal Case No Santa Clara County Superior Court Case Number 1-04-CV The Honorable James Kleinberg ANSWER BRIEF ON THE MERITS DOUGLAS B. ALLEN, SBN BURNETT, BURNETT, & ALLEN 160 W. SANTA CLARA STREET, SUITE 1200 SAN JOSE, CALIFORNIA PHONE: (408) FAX: (408) Attorney for Petitioner/ Appellant

2 Table of Contents TABLE OF AUTHORITIES ii QUESTION PRESENTED SUMMARY RESPONSE THE UNITED STATES SUPREME COURT REQUIRES THE OFFER OF IMMUNITY PRIOR TO COMPULSION OF A STATEMENT THIS COURT HAS REPEATEDLY RECOGNIZED THE UNIQUE ROLE OF IMMUNITY 5 THERE IS NO FACTUAL BASIS FOR A POLICY EXEMPTING PUBLIC EMPLOYEES FROM ORDINARY RULES APPLICABLE TO USE IMMUNITY CONCLUSION

3 Cases Table of Authorities Bryan v. Superior Court (1972) 7 Cal. 3"' 575, Chavez v. Martinez (2003) 538 U.S. 760, ,5 Christal v. Police Commission of San Francisco (1939) 33 C.A. 2d Daly v. Superior Court (1977) 19 Cal. 3"' Garrity v. New Jersey (1967) 385 U.S ,4 Hoffman v. United States (1951) 341 U.S. 479, , In re Webber (1974) ll Cal. 3'' 703, Kastigar v. United States 406 U.S. 441, 446 (1972)... 5 Kelly v. State Personnel Board (1979) 94 Cal. App. 3'' Lefkowitz v. Turley (1973) 414 U.S Lybarger v. City of Los Angeles (1985) 40 Cal. 3'' Maness v. Meyers (1975) 419 U.S. 449, 462,474, ,3,8 Peop\e v. Cooke (1993) 16 Cal. App , ,6 People v. Coleman (1975) 13 Cal. 3"' People v. Superior Court (Perry) (1989) 213 Cal. App. 3"' 536, 538, ,8 People v. Hunter (1989) 49 Cal. 3"' 957, People v. Stewart (2004) 33 Cal. 4'h 425, Pillsbury Company v. Conboy (1983) 459 U.S. 248, Rogers v. United States (1951) 340 U.S. 367, ,3 Steinmetz v. California State Board of Education (1955) 44 Cal. 2"' II

4 Tarantino v. Superior Court (1975) 48 Cal. App. 3"' TRW v. Superior Court (1994) 25 Cal. App United States v. Field 193 F. 2d 92 (1951) , United States v. Aloyzas Balsis (1998) 524 U.S. 666, ,3,5 United States v. Mania (1943) 317 U.S. 424, StatutO!)( California Pmal Code 5 ection ill u Ill

5 CALIFOR NIA SUPREME COURT CASE NUMBER: IN THE SUPREME COURT OF THE STATE OF CALIFORNIA lliomas SPIELBAUER, vs. Petitionee/ Appellant, Sixth Appellate District Court of Appeal Case No. H Santa Clara County Superior Court Case Number 1-04-CV COUNTY OF SANTA CLARA; SANTA CLARA COUN1Y PERSONNEL BOARD; jose VILLARREAL; Defendants/Re pondents / QUESTION PRESENTED When a public employee invokes his or her Fifth Amendment right against self incrimination in a public employer's investigation of the employee's conduct, must the public employer offer immunity from any criminal use of the employee's statements before it can dismiss the employee for refusing to answer questions in connection with the investigation? SUMMARY RESPONSE Yes. The United States Supreme Court has clearly required immunity as a condition precedent to enforcing termination for refusing to answer upon the privilege against self incrimination. The majority of the Court described the immunity requirement in its opinion in, United States v. Aloyzas Balsis ( 1998) 524 U.S. 666, 683 (footnote 8); 118 S. Ct. 2218; 141 L. Ed. 2" ' 575. Of course, the judicial exclusion of compelled testimony functions as a fail-safe to ensure that compelled testimony is not admitted in a criminal proceeding. The general rule requires that a grant of I

6 immunity J?riOr to the compelling of an testimony. We have said that the _pred1ct10n that a court m a future cnminal prosecution would be obligated to protect against the evidentiary use of compelled testimony is not enouiili to satisfy the privilege against compelled self-incnmination [Pillsbury Company v. Conboy ([983) 459 U.S. 248, 261]. The suggestion that a witness should re'iy on a subsequent motion to suppress rather than a prior grant of immunity "would [noll afford adequate protection. Without something more, [the witness would be compelled to surrender the very protection which the privilege is designed to guarantee." r Maness v. Meyers (1975) 419 U.S. 449,462 (footnote and internal quotations marks omitted)] This general rule ensures that we do not "let the cat out with no assurance whatever of putting it back," id., at page 463 (internal quotation marks omitted), and leaves the decision whether to grant immunity to the Executive in accord with congressional policy, see Pillsbury, Supra, at page 262. The Supreme Court majority opinion in Chavez v. Martinez (2003) 538 U.S. 760, 770; 123 S. Ct. 1994; 155 L. Ed. 2'' 984 states, Among these rules is an evidentiary privilege that protects witnesses from being forced to give incriminatmg testimony, even in noncriminal cases, unless that testimony has been inununized from the use and derivative use in future criminal proceeding before it is compelled... by allowing a witness to insist on an inununity agreement before being compelled to give incriminating testimony in a noncriminal case, the privilege preserves the core Fifth Amendment right from invasion by the use of that compelled testimony in a subsequent criminal case. (No emphasis added) The Supreme Court continues to reason, citing two more cases Rogers v. United States (1951) 340 U.S. 367, 371; 95 el ed 2' ' 344; 71 S. Ct. 438 and United States v. Mania (1943) 317 U.S. 424, 427; 87 L. Ed. 2' ' 376; 63 S. Ct. 409 that, insistence on a prior grant of immunity is essential to memorialize the fact that the testimony had indeed been compelled and therefore protected from use against the speaker in any "criminal case." (Ibid) at page 771, 772 like, The reason that immunity must first be granted is because public employees... policeman,... teachers and lawyers, are not relegated to a watered down version of constitutional rights. [Garrity v. New Jersey (1967) 385 u.s. 493, 500] 2

7 Further, there is no factual basis for a policy distinguishing between public employees and any other circumstance in which the Fifth Amendment privilege is to be protected. There is no factual basis suggesting that requiring a grant of immunity prior to interrogation over the Fifth Amendment privilege would in any way interfere with any important or compelling state interest. To the contrary, what is reflected in this case is that more than adequate time exists to obtain immunity from the appropriate prosecuting agency with jurisdiction over the prosecution of the crimes about which the Fifth Amendment may be properly asserted. THE UNITED STATES SUPREME COURT REOIDRES THE OFFER OF IMMUNITY PRIOR TO COMPULSION OF A STATEMENT Contrary to the assertion by the County, the "U.S. Supreme Court" has not condoned the "conflation" of immunity and exclusion. The County erroneously claims that "... the U.S. Supreme Court has pointed out, in the public employment context, these concepts are 'functional equivalents.' Maness v. Meyers (1975) 419 U.S. 449, (Opening Brief on The Merits, page?and 8). This reference is however, not the opinion of the U.S. Supreme Court. It is, rather the lone opinion of Justice White, in a concurring opinion that departs from the reasoning of the majority. The six member majority opinion authored by Chief Justice Burger, reversed the lower court finding of contempt against an attorney who advised his client in good faith to disobey a subpoena upon grounds of the Fifth Amendment privilege. As quoted later in the opinion of United States v. Aloyzas Balsis (Ibid), the majority of the Court reasoned in response to the argument that the compelled evidence would be subject to a suppression motion in any later criminal proceeding, Laying to one side possible waiver problems that might arise if the witness followed that course, Rogers v. United States (1951) 340 U.S. 367, 3

8 we nevertheless cannot conclude that it would afford adequate protection. Without something more "he would be compelled to surrender the very ]Jrotection which the privilege is designed to guarantee." Hoffman v. United States (1951) (341 U.S. 479, 486). Indeed the County claims that the decision of the Court in Garrity v. New Jersey (1967) 385 U.S. 493; 87 S. Ct. 616; 17 L. Ed. 2d 562, holds for the proposition that given an admonition that failure to provide a statement will be met with termination, that such admonition automatically accords immunity by later exclusion. The County quotes from a footnote in the dissenting opinion of Justice Harlan, where Justice Harlan quotes from a 1951 decision of the United States Second Circuit Court of Appeals opinion by Justice Frank who was quoting from a 1939 opinion of Justice Spence of the California Appellate Court, First District, which elegantly states that policeman must choose between the duty to answer and the privilege of silence.<'l Justice Harlan's quote of a quote is represented to be the statement of the "U.S. Supreme Court" in "Garrity" "where the Court is "Addressing the nexus between a public servant's duty of candor and his privilege against self-incrimination..." Ironically, the dissenting opinion of Justice Harlen found no right to immunity or exclusion. He was of the mind that the officer should be left with the "Hobson's choice" of choosing between "... the rock and the whirlpool". The Court in Garrity ruled upon a very narrow issue, i.e., "... the voluntariness of the statement as the only issue presented." [Garrity (Supra) page 496] From this narrow ruling where the Court held that pain of termination is coercion of sufficient magnitude to violate the Fourteenth and the Fifth Amendments, the County wants to construct an entire doctrine eliminating any 1. United States v. Field 193 F. 2d 92 ( 1951 ); Christal v. Police Commission of San Francisco (1939) 33 C.A. 2d

9 distinction between immunity and exclusion. Such was not the intent of the Supreme Court as later reflected in discussion in numerous subsequent decisions such as Lefkowitz v. Turley (1973) 414 U.S. 70, where at page 81, the Court in quoting Kastigar v. United States (1972) 406 U.S. 441, 446, stated in the majority optruon, Immunity is required if there is to be "rational accommodation between the imperatives of the privilege and the demands of government to compel citizens to testity." If confusion arose leading some to believe that the Court considered immunity and exclusion as synonymous, or functional equivalent to such extent as to extinguish any need for immunity statutes or agreements, such confusion has been well dispelled by subsequent discussions by the Court which protect the discretion of the prosecution and acknowledge the inadequate protection of reliance upon a later exclusion remedy. Of course, the judicial exclusion of compelled testimony functions as a fail-safe to ensure that compelled testimony is not admitted in a criminal proceeding. The general rule requires that a grant of immunity prior to the compelling of any testimony. United States v. Aloyzas Balsis (Ibid) p. 683 (footnote 8). See also, Chavez v. Martinez (Ibid), p. 170, as more fully quoted above. THIS COURT HAS REPEATEDLY RECOGNIZED THE UNIQUE ROLE OF IMMUNITY In People v. Cooke (1993) 16 Cal. App. 4'" 1361 at page 1371, this Court declined "... to declare a doctrine of judicial use immunity for defense witnesses in criminal cases." In that opinion, this Court stated that,... once the prosecutor objects and declares that the grant of immunity might hamper a criminal proceeding, the immunity cannot be granted. The court cannot question the objection because to do so would interfere with prosecutorial discretion. (Ibid), p

10 In the Cooke opinion the Court addressed the specific and narrow applications of use inununity in Bryan v. Superior Court (1972) 7 Cal. 3" ' 575, 587; People v. Coleman (1975) 13 Cal. 3' ' 867; Tarantino v. Superior Court (1975) 48 Cal. App. 3" ' 465; Daly v. Superior Court (1977) 19 Cal. 3" ' 132. This Court has stated that, "the opportunities for judicial use of...inununity power must be clearly limited..." [People v. Hunter (1989) 49 Cal. 3' ' 957, 974]. The Court goes on to observe that, "... the Courts of Appeal of this state have uniformly rejected the notion that a trial court has the inherent power...to confer use immunity upon a witness called by the defense." (Ibid) p. 973 This Court in People v. Stewart (2004) 33 Cal. 4' h 425, 470, reaffirmed its recognition of the unique discretion of the prosecution in according use inununity. Thus, in various applications this Court has not condoned a plenary rule that use immunity arises from the mere compulsion of statements. If this were true, any superior court judge could create use immunity for a defense or civil witness by merely ordering the witness to testify on pane of contempt. Likewise, inununity may be conferred on a continuous basis by any other party who coerces a statement such as a public employer who coerces a statement from an employee. The employee (or any other witness), may respond freely in the face of coercion with no need to stand on his or Fifth Amendment rights fully usurping any discretion of the appropriate prosecutor. This was not this Court's ruling in Lybarger v. City of Los Angeles (1985) 40 Cal. 3' ' 822. Lybarger did not create a judicially declared exception to prosecutorial discretion or statutory authority in the application of use inununity, but merely recognized the obligation of public employees to respond should such immunity arise. The mechanism for the granting of immunity was simply not addressed. Likewise, such mechanism was never addressed in any of the previous California authority, such as Kelly v. State Personnel Board (1979) 94 Cal. App. 3' ' 905; 6

11 Steinmetz v. California State Board of Education (1955) 44 Cal. 2" ' 816; TRW v. Superior Court (1994) 25 Cal. App THERE IS NO FACTUAL BASIS FOR A POLICY EXEMPTING PUBLIC EMPLOYEES FROM ORDINARY RULES APPLICABLE TO USE IMMUNITY Contrary to the assertions of the County and several amicus curie there is no factual basis for a policy that accords public employers the power to grant use immunity. The record on appeal (Appendix Vol. II, beginning at page 449) describes the investigation conducted by the Santa Clara County Public Defender's office. Following events in Superior Court proceedings on January 27 and 29, 2003, police reports of January 28, 2003 and March 11, 2003, were given to investigator Elaine Bolster on March 19, 2003, by her supervisor for investigation within the public defender's office (Appendix page 449). On March 28,2003, Ms. Bolster interviewed witness Troy Boyd (Appendix 0451), and on April 9 and April 30, interviewed the additional witness, David Jaquez, a public defender investigator. Mr. Spielbauer was asked to appear for interviews on March 26, 2003, April 1, 2003, and AprillO, 2003, all three of which he did attend with counsel (Appendix page 444). The investigative report was completed on May 7, 2003 (Appendix page 449). This is a typical investigation that proceeded rather promptly over the space of two months. All that is required to obtain a formal award of immunity under the California statutory scheme, Penal Code Section 1324, is an application by the appropriate District Attorney's office to the Court for an order awarding use immunity [See Penal Code Section 1324; People v. Superior Court (Perry) (1989) 213 Cal. App. 3" ' 536, 538, 539; citing In re Webber (1974) 11 Cal. 3" ' 703, 7

12 720].<'1 Contrary to assertions by some amici there is no reason for involvement of a grand jury or other cumbersome process. The simple ex parte petition by the prosecutor to obtain a court order upon a proper showing would afford the appropriate immunity. Such a petition would satisfy both the assurances for the witness employee of the protection of his statements as described by the United States Supreme Court in Maness v. Meyers (Supra) p. 462, and would protect the discretion of the appropriate prosecutor. Some of the arguments advanced suggest that it is cumbersome or awkward to make contact with the prosecuting authority i.e. the District Attorney or Attorney General, with each public employee discipline. Such a contention is illogical. If the employee conduct, as alleged, is of such a nature that it may involve potential criminal wrongdoing such that it would justify the employee's invocation of his Fifth Amendment privilege not to testify, then the appropriate prosecuting agency should in all cases be notified. The failure to notify the appropriate prosecuting agency would be inappropriate, and leave criminal conduct in a public agency un-scrutinized for criminal sanction. Prosecutors should be notified of potential criminal conduct at the earliest possible date to make appropriate evaluations of potential for investigation and prosecution in addition to the need to evaluate the impact of an immunized statement upon such an investigation or prosecution. If no criminal exposure is evident from the allegations against the employee, then the employee has no right to assert the Fifth Amendment privilege and the employer has no need to obtain immunity. Instructive of the confusion created by public employee statements that have not been accorded a formal grant of immunity is reflected in the letter of amicus 2. The case of People v. Superior Court (Perry) addressed the inherent authority of the prosecutor to limit immunity by agreement, an issue that has been resolved by inclusion of the use immunity in Penal Code Section

13 curi, from Albert Locher, Assistant Chief Deputy District Attorney of Sacramento County, dated April 9, 2007 to this Court. At page four, Mr. Locher suggests that compelled statements by employees "... exist as a potential resource for any related criminal investigation...later criminal investigation efforts by the prosecutor (or for that matter the grand jury) may involve obtaining and using such statements." Use immunity requires that both the statements and the fruits thereof be banned from use in criminal prosecutions against the witness. Statements are available for impeachment purposes alone. The reality reflected by Assistant Chief Deputy Locher's discussion is that prosecutors do look to such statements as sources of information on investigations. This is a greater incentive to create a formal grant of immunity for such statements with the prosecutor's participation and assent at the earliest possible stage. Such an early decision to accord the statements irrununity resolves, prior to compelling the witnesses statements, issues of waiver, appropriateness of assertion of the Fifth Amendment and later use. Both the prosecutor, as well as the witness, have a formal basis for understanding the future use of those statements obtained by compulsion. CONCLUSION United States Supreme Court requires that immunity, not exclusion, be relied upon for protection of public employees compelled statements. The Court's of California, including this Court, have recognized the unique role of immunity and its impact upon prosecutorial discretion. This Court has not made a pronouncement that a judicially created immunity is needed for compelled public employee statements. To the contrary, the reality of public employee investigations, as illustrated by this case, reveals no policy need to exclude prosecutors from decisions immunizing employee statements or from being appraised of cases which involve potential criminal exposure. Accordingly, the answer to the Court's question for discussion is, yes, upon the proper involvement 9

14 of the appropriate prosecuting agency. DATED: July 6, 2007 DOUGLAS B. ALLEN Attorney for Appellant 10

15 Certificate of Compliance Pursuant to California Rules of Court 14(c)(l) or 33 (b)(!) Supreme Court Case N umbers I certify that pursuant to California Rules of Court rule 14 (c)( 1) and 33 (b)(1), the attached ANSWER BRIEF ON THE MERITS is proportionately spaced, has a typeface of 14 points or more and contains 2,796 words as counted by the word-processing program used to prepare this brief. DATED: 6 July 2007 BURNETT, BURNETT & DOUGLAS B. ALLEN Attorney for Petitioner/Appellant

16 I Plaintiff: Thomas Spielbauer Case Number: 2 Defendant: County of Santa Clara et, al. Sl The undersigned declares: PROOF OF SERVICE BY MAIL II 12! I am employed in the County of Santa Clara, State of California, am over the age of 18 years and am not a party to the within action. My business address is 160 WEST SANTA CLARA STREET, SUITE 1200, SAN JOSE, CALIFORNIA On 6 July 2007 I served the following described document by mail: ANSWER BRIEF ON THE MERITS 3. True and correct copies of the described document(s) was(were) enclosed in a sealed envelope with postage prepaid and thereafter placed for collection for deposit in the United States Mail at San Jose, California. I am readily familiar with the mail collection and processing practices of this finn and state that mail is deposited with the United Stated Postal Service on the same date in the ordinary course of business at the business address noted above. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing contained in this declaration. 4. The document(s) described above was( were) mailed in the manner described to the following: Clerk The Honorable James Kleinberg Santa Clara County Superior Court 191 North First Street San Jose, CA Marcy Berkman County of Santa Oara 70 W. Hedding Street, East Wing, 9ili Floor San Jose, CA Clerk 61h District Court of Appeals 333 W. Santa Clara Street San Jose, California [ J I hereby certify that I am a member of the Bar of the United States District Court in which this 21 matter is pending. 22 [ ] I hereby certify that I am employed in the office of a member of the Bar of the United States District Court in which this matter is pending and at whose direction this service is made I declare under penalty of perjury under the Jaws of the State of California that tl\'cab<w<'-1\jl correct. Executed on 6 July 2007 at San Jose, California BURNETT, BURNETI" &AWN 160 W. SmtaOu:o SL 12"" Floor S>njo... CA ProofofScrvicc::