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The 9th U.S. Circuit Court of Appeals on Wednesday threw out a $75,000 fine that federal Judge Charles Legge of the U.S. District Court for the Northern District of California slapped on an Oakland, Calif., firm for pursuing conspiracy and malicious prosecution charges against a former Mendocino County district attorney. Van Bourg, Weinberg, Roger & Rosenfeld escaped the unusual punishment because procedures weren’t followed when the sanctions were issued. The court ruled that Van Bourg and its clients should have been given 21 days to retract the offending allegations. The court did not rule on the merits of the sanctions claim. The unusual case began in May 1995, when four members of the Bay Counties District Council of Carpenters, a union, walked onto the job sites of two Rainbow Construction Co. projects, ostensibly to ensure prevailing wage laws and safety regulations were being enforced. After repeated visits, the company placed them under citizen’s arrest. Two junior Mendocino County DAs — including the assistant responsible for making charging decisions — declined to prosecute the case. But after meeting with Rainbow president Peter Richardson, DA Susan Massini decided to proceed anyway. None was convicted. Her conduct was later the subject of a grand jury report criticizing her decision. Massini lost re-election in 1997, partly because of the case. At the time, she was the president-elect of the California District Attorneys Association. She lost to a gun-fancying ex-con whose platform included the legalization of marijuana and who was endorsed by the National Rifle Association and the Green Party. The union members filed suit against Rainbow and Mendocino County officials alleging they conspired to arrest and prosecute them without cause. Rather than simply toss the case, Legge threw it in the garbage can and set it on fire, issuing a strongly worded order that said the suit was based on “rumors!” The 9th Circuit offered support for Legge’s holding that allegations of conspiracy between Massini and Richardson were thin, at best. “That evidence is lacking,” Senior Judge William Canby Jr. of the 9th Circuit wrote. In partial dissent, Judge Stephen Reinhardt identified Massini’s curious behavior as one reason the case should have gone to trial. “I believe that District Attorney Massini’s most unusual actions in prosecuting this trespass case permit the inference of a conspiracy between Massini and Richardson to deprive the defendants of their civil rights,” Reinhardt wrote. Furthermore, and perhaps most importantly, the court held that the union members’ tort claims of false arrest and false imprisonment were not precluded by the National Labor Relations Act. “The fact that a state tort may also constitute an unfair labor practice … does not inevitably cause pre-emption of the state claim,” Canby wrote.

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