X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
SAN DIEGO — A word of advice to government employees claiming retaliation for whistle-blowing: Exhaust your administrative remedies before filing suit. And to police officers conducting interrogations: If a suspect even remotely suggests he wants a lawyer, stop questioning. The California Supreme Court looked headed toward both of those conclusions during spirited oral arguments in two cases Wednesday at the University of San Diego School of Law. In the retaliation case, Janet Campbell, a senior architect for UCSF, claimed she had been demoted in 1997 after going to the FBI with allegations that her bosses had instructed her to prepare documents that illegally eliminated competitive bidding, costing taxpayers hundreds of thousands of dollars. However, instead of following internal administrative procedures to resolve retaliation claims involving whistle-blowing, Campbell sued the university under the state’s False Claims Act and state Labor Code � 1102.5, which prohibits employers from retaliating against employees for going to law enforcement agencies. On Wednesday, the Supreme Court justices registered little sympathy as they pointed out that state statutes on the subject refer directly to employees of private businesses, not public agencies. They also felt that Campbell hadn’t even tried to comply with the university’s policy. “It seems to me, counsel, your argument is, at best, tenuous,” Justice Ming Chin pointedly told Gold River attorney Leo Donahue. “Why don’t we follow the common-law exhaustion rule?” Chin also took Donahue to task for the fact that lower courts time and again told his client that a retaliation suit, absent any effort to work with the university, was doomed to failure. “How many times do you have to be told you have to exhaust your administrative remedies?” he asked. Justice Joyce Kennard expressed some sympathy for Campbell by noting that she might have expected the university to pay little heed to her complaints. “How could plaintiff expect fairness from the outfit that already got rid of her?” she asked the university’s attorney, Morgenstein & Jubelirer’s William Carroll. The case is Campbell v. Regents of the University of California, S113275. In the Miranda case, Los Angeles’ Second District Court of Appeal last year overturned the first-degree murder conviction of gang member Catarino Gonzalez Jr. after finding that Los Angeles detectives had violated his rights by ignoring his request for a public defender. The question before the high court was whether Gonzalez’s request was clear enough that a reasonable police officer would have understood him. Gonzalez, a 20-year-old sentenced to life in prison for killing one Los Angeles police officer and seriously injuring another, had told detectives during a custodial interrogation: “If for anything you guys are going to charge me, I want to talk to a public defender, too, for any little thing.” The attorney general’s office argued that the detectives had complied with Davis v. United States, 512 U.S. 452, a 1994 U.S. Supreme Court ruling that said an ambiguous or equivocal reference to an attorney isn’t enough to put an officer on alert that a suspect has invoked his Miranda rights. Gonzalez’s request was unclear, L.A.-based Deputy AG James Bilderback argued Wednesday. “How can it be? I don’t grasp how it can be a request for anything else,” Chief Justice Ronald George said. “Isn’t that an unequivocal enough request for counsel?” Bilderback stood his ground by arguing that it isn’t whether the suspect requested a lawyer, but whether the detectives reasonably understood the request. He said the officers also told Gonzalez that he could have a PD anytime he wanted, but that he continued to agree to interrogation and a polygraph test. “These detectives were extremely sensitive to the presence of counsel,” Bilderback said, “and they gave this defendant multiple opportunities to request counsel.” There was also debate about whether Gonzalez, who had been arrested at least four times before — once insisting on a lawyer — knew the difference between being arrested and charged. “He was experienced in the ways of being arrested and booked,” George told defense lawyer Sylvia Beckham of Ojai. “Is it possible to assume he didn’t understand the process?” Beckham said that even though Gonzalez had had previous run-ins with the police, he was still a young man with a poor education. “He invoked his right as clearly as any 20-year-old could in this situation,” she said. Justice Marvin Baxter produced a few laughs when he invoked gang slang, asking Bilderback whether officers would realize they were being asked for a lawyer if someone said, “If you’re going to lay it on me, I want a mouthpiece.” “Couldn’t a reasonable police officer who received a statement like that know that the right to counsel was being invoked?” he asked. When Bilderback said no, Justice Chin snapped, “What would you have to add to clarify?” The case is People v. Gonzalez, S122240. Rulings in both cases are expected within 90 days.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.