RBG’s Gay Grunfeld briefed and argued the case for the Armstrong class plaintiffs.  According to a San Francisco Chronicle article, “The ruling should reduce needless suffering and make the jails safer, said Gay Grunfeld, a lawyer for the inmates. ‘When the state chooses to house its parolees in the county jails, it can’t look the other way,’ she said.”  In a report on KQED Radio, Grunfeld goes on to say, “The main difference going forward is that there will be more information provided and hopefully fewer of the examples of persons denied wheelchairs, canes and listening devices when they’re in the county jails on parole holds.”

While the State of California conceded that state prisoners and parolees with disabilities are not being provided proper accommodations at county jails and that they do not have access to a proper grievance system, the State argued that under the realignment statute state parolees are no longer members of the Armstrong class and that the plaintiffs motion was broader than necessary.  Judge Wilken rejected their argument and ordered the state to take steps to ensure that the needs of parolees with disabilities are accommodated, including establishment of an adequate disability grievance process.

According to the Chronicle:  “Wilken said the state doesn’t even know where paroled inmates with disabilities are housed and what services they need, despite a computer system that keeps track of disabled state prisoners and non-incarcerated parolees.  She ordered state officials to give each county a daily list of disabled parolees in its jail, and to contact all inmates to make sure they receive all needed accommodations.”

Full text of the order is available here:  Order Granting Plaintiffs_ Renewed Motion to Require Defs to Track and Accommodate (1974) 1-13-12.

The article notes that recent budgets have cut hundreds of millions of dollars from the state’s rehabilitation programming budget and concludes with a second quote from Bien about the Governor’s proposed budget, “On the one hand he, like Schwarzenegger, is certainly talking a big talk about rehabilitation.  And I think the corrections administration sincerely wants to do it, but so far all I’ve seen is a lot of teachers fired and drug programs reduced.”

Plaintiffs are represented by Joaquin G. Avila, a nationally recognized expert on Latina/o voting rights, and RBG’s Gay Grunfeld, Blake Thompson, and Leslie Mehta.  Trial in the case will begin on February 7, 2012.  

In an important ruling on January 6, 2012, Los Angeles Superior Court Judge Elizabeth Allen White found that plaintiffs’ expert analysis “is sufficient to demonstrate the existence of racially polarized elections for city council and mayor” in Compton and that “triable issues of material fact exist as to whether the at-large election has impaired the ability of Latinos to elect candidates of its choice or ability to influence the outcome of an election due to abridgement of their voting rights.”

A Los Angeles Times article on January 6, Lawsuit alleging Compton elections unfair to Latinos going to trial, quoted RBG’s Grunfeld: 

“No or almost no person who is not Latino in Compton has ever voted in all of these elections for a Latino candidate,” Gay Grunfeld, an attorney for plaintiffs Felicitas Gonzalez and Flora Ruiz, told the judge. “Therefore,” the attorney said, “Latinos are going to have to turn out at twice the rate of all the other voters to have  a candidate of their choice elected unless there’s a change in the system.”

Statistical analysis using well-established methods from federal voting rights law demonstrates that elections in Compton over the past decade have suffered from serious racial polarization, similar to that historically found in the Deep South.  That is, Latino candidates in Compton receive support from Latino voters, but African-American voters almost never vote for Latino candidates.  Because Latinos are a minority of registered voters, they are consistently thwarted by the African-American voting bloc in the city.   This has meant that Latinos have never had a voice in the government of Compton.  The plaintiffs are asking the court to find that Compton’s at-large method of elections unfairly prevents Latino citizens from electing  Latino candidates.  They want to establish other methods, such as district-based elections, that will lead to fairer representation in city government.

The case is González et al. v. City of Compton, Los Angeles Superior Court Case No. BC 450494. 

In an article in the Daily Journal on January 3, 2012, “Governor may find pension reform middle ground in 2012,” Galvan is quoted about the road to public employee pension reform:

“Jerry Brown could represent a moment where reasonable people say, ‘We are not going to tear this system down,” said Galvan, of Rosen, Bien & Galvan, LLP in San Francisco. “Like anything else, there are some problems with this system. But this is an ‘mend it, not end it’ moment.”

“Twenty years ago, members of the San Francisco Women Lawyers Alliance (SFWLA) felt compelled to create a safe haven for children who accompanied their parents or guardians when they had business at court. . . Since lower-income families were most affected, the program also needed to be free of charge. ‘Not all people can afford nannies,’ explains Gay Grunfeld, a partner at Rosen, Bien & Galvan, who was then president of SFWLA and the project’s director. ‘The courts should be accessible to all people. We must take care of the children so it’s possible for [the adults] to take care of their business.’” 

Full text of the article is set out here.

According to RBG’s Ernest Galvan, who argued the case for the retirees, as reported in the Los Angeles Times, “This decision says that when you are in the process of doing public employee pension reform, you have to respect the rights of current retirees.  If you promised them a particular benefit when they were working and promised that would be part of their retirement, then that is a promise you have to keep.”

“All along this case has been a matter of fundamental fairness and economic justice,” said said REAOC Co-President Linda Robinson in the Orange County Register. “This is about requiring politicians and bureaucrats to live up to decades-old promises.”

In a November 22 article in the San Francisco Daily Journal, Galvan noted:  “To the extent that what we’re seeing is a political tidal wave against public employee pensions, I think what the court did is erect a sea wall around existing retirees.”

Reuters reports that, “Ernest Galvan, an attorney for the retirees, said the decision should remove people like his clients from the debate over how to make up budget shortfalls. ‘This opinion sets up a seawall around people who have already retired,’ Galvan said.”

According to the Recorder, “The retirees’ lawyer, Rosen, Bien & Galvan partner Ernest Galvan, viewed the decision as a victory for his clients, who he said had planned their retirement based on the level of health benefits they had been promised. ‘The county’s whole theory of the case is gone,” Galvan said. “Now they have to face the facts.’”

Background

The California Supreme Court  had heard arguments on October 3, 2011  in Retired Employees Association of Orange County v. County of Orange — an appeal characterized by one observer as “one of the most important cases in years for public agencies.”  RBG’s Ernest Galvan argued on behalf of the retirees.

This closely-watched case is about whether a local government can take away retirement health benefits from former public employees who have already retired.  The people being harmed here are over 5,000 Orange County retirees and survivors.  Their average pension is $30,000 per year.  Their access to health care depends on being part of the overall pool of Orange County employees and retirees when rates are set. When they worked for the County, they paid extra for their own family’s health insurance in order to make sure that retiree rates stayed under control. The County’s benefits staff and the employees considered these pooled retiree health plan rates to be one of the benefits of working for Orange County.

In 2005, Orange County tried to change the rules that had been established for decades. They saw the chance to take raise millions of dollars by shifting higher health insurance premiums to existing retirees, thus freeing up money that they could offer in pay raises to the current employees.  The result is that current retirees have seen their premiums skyrocket.  In a few years, those premiums will consume their entire pensions.  Retirees in this case are not asking the county to pay their health insurance.  They pay their own premiums.  They are only asking that the County keep its promise that the retirees would pay premiums based on the entire County pool–not artificially inflated “retiree-only” premiums.

Commenting to a reporter after the argument, Galvan stated, “Our concern is that if the Supreme Court gives Orange County what it wants, it’s going to be open season on retirees.”

Governor Schwarzenegger’s Commission on Public Employee Pension Reform in 2007 singled out Orange County as unique in crossing the line between changing future benefits and taking benefits away from people who have already earned them: “Unlike many of the other agents profiled in this report, Orange County has addressed [retirement health benefits] by choosing to drastically change the structure of its retiree health plan to lower costs rather than to fund previous obligations.”

The Retired Employees Association of Orange County is challenging the County’s action in a federal lawsuit that was filed in Santa Ana in November 2007.  In July of last year the 9th Circuit held that the central state-law question in that case – whether retired employees have a contract right to receive this benefit – was unsettled, and asked the state Supreme Court to provide clarification.

“Kim Stone and the Civil Justice Association of California abhor the recent decision in County of Santa Clara v. Superior Court, in which the Supreme Court refused to extend the narrow holding of People ex rel.Clancy v. Superior Court to create an unnecessary and impractical universal prohibition of contingent fee arrangements between public entities and private lawyers who assist them with public nuisance cases.See “Just don’t do it:  Prosecutors should avoid partnering with plaintiffs’ lawyers.” Daily Journal, October 12, 2011, page 2.

Ms. Stone acknowledges  the Court’s holding in County of Santa Clara mandates only that public prosecutors may engage contingent-fee counsel, who are under the control and supervision of government lawyers and entities, to prosecute public nuisance cases.  She did not note that the decision was without dissent.  Yet, Ms. Stone and her lobby continue to advocate in the political arena the bright line prohibition rejected by our Supreme Court, by beseeching public prosecutors never to retain private contingent fee attorneys to represent their public entities to  enforce public nuisance laws.

She ignores the considerable evidence that prohibiting public entities from hiring private attorneys on a contingent-fee basis  often would preclude public entities from bringing large-scale public nuisance cases that promote public health and safety. Particularly in these days of economic distress and environmental concern, marked by layoffs of government lawyers and enforcement workers, state and local government entities in general lack the resources to bring and sustain, over years of litigation, abatement actions against large well-funded and lawyered corporate entities.

As identified by the unanimous Court in County of Santa Clara, the only appropriate concern when a public entity hires a private contingent fee lawyer is to ensure that the private lawyers’ profit motive does not trump the public interest and the neutrality required of public prosecutors. The Court identified precautionary measures available to ensure that desirable public entity lawsuits can be managed on a contingent-fee basis without the risk of ethical violations, corruption or harm to the public trust.

As was made clear by the Court, and in many briefs submitted to the Court, including an amici curiae brief my firm submitted on behalf of eight nationally and California recognized legal ethics experts,  ethical behavior and neutrality can and should be assured on a case-by-case basis, taking into account such factors as the actual relationship between the public entity and its contingent-fee counsel, the actual customized terms of the contract, and the type and status of the case at hand. Moreover, courts have ample authority to review and monitor the relationship between attorney and client to ensure that such neutrality is maintained. As the Court held, no more is necessary to enable public prosecutors to hire private attorneys to prosecute cases that are in the public’s interest, and they should do so when the need arises.”