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A majority of the California Supreme Court seemed poised this week to rule that a whistleblower cop seeking permanent disability must first prove he couldn’t hold down a similar job at other law enforcement agencies statewide. Five of the court’s justices appeared unsympathetic to former Anaheim police officer Steven Nolan, despite supportive arguments by a lawyer for the California Public Employees’ Retirement System. Nolan, who is now a successful restaurateur in Corona, had claimed to be mentally incapable of working for Anaheim because of death threats and other forms of harassment aimed at him after he blew the whistle on the police department’s use of excessive force against gang members. Nolan, who was fired by the city, claimed to be the victim of the officers’ so-called “code of silence.” The justices acknowledged that Nolan had acted honorably by bringing to light a legitimate problem within the Anaheim Police Department, but many of them still felt that he should have to prove that he couldn’t get a job as a cop elsewhere. Leading the charge was Justice Marvin Baxter, who said he couldn’t understand why the city of Anaheim should be prevented from producing evidence that Nolan could have obtained an identical job in nearby Los Angeles. Seemingly agreeing with L.A. lawyer Lawrence Kirk, who represents Anaheim, Baxter said that if Nolan could land a job, he wouldn’t have to burden the state’s disability rolls for years. “Why should we put blinders on?” he asked Cerritos lawyer Steven Pingel, who represented Nolan. “How can you possibly justify that as a matter of policy?” Pingel responded by arguing that as a “practical matter,” Baxter’s hypothetical job would never be available, that no other police force would offer a job to a man who ratted on his fellow officers and then brought a whistleblower suit against the city. Baxter called that a “bold statement” and told Pingel that the court cannot make the assumption that all police agencies in California are going to be so callous. Chief Justice Ronald George joined in by commenting that an individual officer’s plight could be unique to a particular department. “Do you think in that situation you would adhere to your, I must say, rigid position?” George asked. He also later noted that jurors in Nolan’s whistleblower suit reduced his damages for wrongful termination by $63,000 because he had not made a reasonable effort to find a comparable job. Justices Joyce Kennard and Kathryn Mickle Werdegar, however, seemed firmly in Nolan’s corner. Kennard, noting that Nolan graduated at the top of his class in the state’s police academy, said it was “reasonable to predict” that Nolan would have a hard time finding similar employment. She also said it would place a “horrendous administrative burden” on CalPERS to have to sort through “myriad” job descriptions at hundreds of police agencies to see if there was comparable work for officers seeking disability benefits. Justice Werdegar said she thought state statutes governing disability retirement left no doubt that the only requirement for Nolan was to prove that he didn’t have the physical or mental capacity to perform his job any longer. “To my mind, contrary to the court of appeal,” she said, “the statute seems very clear.” The case is Nolan v. City of Anaheim, S113359.

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