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CITY ATTORNEY GETS RARE TURN BEFORE STATE HIGH COURT As the city attorney of Oakland, John Russo doesn’t get many opportunities to argue before the state Supreme Court — and he quickly found out that it’s sometimes hard to get a word in edgewise. No sooner had Russo introduced himself on Thursday in Sacramento than Justice Joyce Kennard — as she often does — hit him with a question. If Kennard’s pounce caught Russo by surprise, he didn’t show it. He deftly fielded her question as well as some significantly tougher ones from Justices Marvin Baxter and Janice Rogers Brown — who were definitely not on his side. Russo, who became Oakland’s first elected city attorney in 2000, was defending a 3-year-old city ordinance that prohibits abusive lending terms and practices for home mortgage loans. Baxter, Brown and Justice Ming Chin seemed of the opinion that the city’s ordinance was pre-empted by state law. Justice Kathryn Mickle Werdegar, meanwhile, seemed to side with Kennard and Chief Justice Ronald George in believing the ordinance wasn’t pre-empted. But even Werdegar got tough with Russo. When the city attorney said it “stretches the imagination” to think that legislators wouldn’t have included an express pre-emption provision if they wanted it, Werdegar stopped him flat. “But the Legislature often leaves things like this to the court in the expediency of getting something passed,” she said. “We don’t normally look to what the Legislature failed to do.” During his 15 minutes at the lectern, Russo remained poised, but — like a veteran politician — his hands were moving all about. The right hand flailed in earnest as he made points off a document in his left hand, and at one point he used both hands in a cupping motion to visually suggest “tweaking” the ordinance. Russo even got an inadvertent laugh. Kennard had asked a very lengthy question and had laid out Russo’s entire argument. The attorney expressed delight. “I almost feel I should sit,” he said. “That’s our argument.” Kennard retorted to everyone’s amusement: “But it doesn’t mean you’ve won.” — Mike McKee FRATERNIZING WITH THE ENEMY The crowd of Measure C proponents in the plush suite at San Jose’s Hotel Montgomery on Election Night was filled with expected guests: union attorneys, lobbyists and Government Attorneys Association President James Shore. But there was one unusual guest making the rounds last Tuesday: Santa Clara County Sheriff Laurie Smith, an opponent of Measure C. The Deputy Sheriff’s Association was excoriated by Measure C proponents and a county judge for signing a side letter with the county agreeing not to support the binding arbitration initiative in exchange for a raise. But that didn’t stop Smith from talking with guests and making the rounds, dressed not in a typical law enforcement uniform but in a sleeker outfit. “I think she showed up to pull the knife out of Jim Shore’s back,” said lobbyist Thomas Saggau, who helped market the Measure C push. “She was very apologetic and contrite and said ‘management made me do it.’ But I still thought it was pretty tasteless for her to show up.” Smith sipped from a glass of red wine and watched as election results came in. At the time, it was not yet clear that voters would resoundingly reject the measure. She also chatted up a reporter, with just a brief mention of how strange it was for her to drop by. Smith again sipped her wine and made a quick joke about how someone might have poisoned it. Then she made her way back into the small crowd and cheerily greeted more Measure C supporters. — Justin M. Norton SCORE ONE FOR THE PLAINTIFF BAR Between Prop 64 and the Republicans’ renewed hold on Congress and the White House, last week’s news was generally bad for the plaintiff bar. But the day before elections, a little-noticed California Supreme Court decision gave encouragement to employment attorneys by making it harder for employers to defend wrongful firing cases. In Stockett v. Association of California Water Agencies Joint Powers Insurance Authority, 04 C.D.O.S. 9774, former state employee Jerry Stockett claimed he was wrongfully fired in 1995 for supporting another employee’s sexual harassment claim. As required by state law, Stockett provided a notice of the tort claim to his employer, and, upon being told that the Insurance Authority would not settle the case, he sued. Stockett’s suit not only repeated the sexual harassment retaliation charge, but added claims that his firing was related to several other whistle-blower actions and speech protected by the First Amendment. The trial court agreed with his claim, awarding $4.5 million in damages. But the Insurance Authority successfully appealed, saying it was blindsided when Stockett brought the new charges and that by not naming them in his tort claim, he did not exhaust his administrative remedies. The Supreme Court’s reversal of the appeal was not welcomed by the defense bar, which frequently — and successfully — defends employers on the grounds that litigants have not exhausted administrative remedies. Stockett’s new charges were “a bait and switch,” said Peter Abrahams, the Horvitz & Levy partner who defended the Insurance Authority. “You can file a very general claim, and then in trial bring up theories very different from what was brought up in the claim.” Steven Tindall, a partner at Lieff Cabraser Heimann & Bernstein who specializes in employment law, said the decision was encouraging. “It certainly helps the government employees,” he said, adding that plaintiff attorneys will likely cite it in cases against private employers when courtroom arguments differ from an Equal Employment Opportunity Commission claim that preceded trial. “It’s a pushback from the Supreme Court saying technical defenses are going to be less supported,” said Garry Mathiason, a Littler Mendelson partner who defends public agencies in employment claims. He added that the opinion will also help plaintiffs by giving employers an incentive to settle a wrongful termination claim rather than face new charges in trial. Jay-Allen Eisen, the Sacramento appellate attorney who represented Stockett, said he was happy both with the precedent and the $4.5 million verdict for his client. “It’s a big thrill. It’s a sizeable verdict that went away in appeals court,” he said. — Justin Scheck LEGACY OF FERDINAND MARCOS If the name on the habeas petition — Teresita Huppanda — doesn’t ring a bell, the description of her arrival in the United States certainly should. In 1986, Huppanda was part of an entourage of more than 100 people brought to Hawaii with Philippines President Ferdinand Marcos. The U.S. government had airlifted out the controversial Marcos, along with his closest supporters, in order to avoid a potentially violent coup. Huppanda, a nanny to one of Marcos’ lieutenants, was barely a footnote to history. Eventually, she settled down in the Sacramento suburb of Rancho Cordova and, after running her own day care business, began working at Wal-Mart. Now, the Department of Justice wants to send Huppanda back to the Philippines. Immigration court judges have already rejected her application to stay here, and Thursday, U.S. District Judge William Alsup heard her habeas corpus request. Huppanda’s attorney, James Mayock of Elliot & Mayock, argued his client deserves to stay because she was granted special immigration status that the government offered to extend “indefinitely,” according to documents filed with the court. But although Alsup was interested in evidence of alleged government promises, he was also troubled by Mayock’s bringing in the new paperwork evidence after more than 10 years in court. “If you said to me you’ve been getting a run-around — that would be a more sympathetic case,” Alsup said. “But what I’m hearing now is that you just pulled this out of thin air, but you’ve never presented this to another court before.” Mayock, who in an interview before the appearance joked that he was “a master of delay,” told Alsup he had only obtained the evidence a few years ago with a Freedom of Information Act request. He urged Alsup not to dodge the evidence. Arguing for the government, Assistant U.S. Attorney Edward Olsen said habeas relief wasn’t appropriate because Huppanda failed to exhaust administrative remedies and failed on the judicial front as well by not going to the Ninth Circuit U.S. Court of Appeals. At the end of Thursday’s hearing, Alsup didn’t say which way he was leaning. He asked for more briefing and indicated he would rule in a few weeks. — Jeff Chorney

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