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Judicial Watch • Sturgeon v LA County G051016 reply brief on appeal

Sturgeon v LA County G051016 reply brief on appeal

Sturgeon v LA County G051016 reply brief on appeal

Page 1: Sturgeon v LA County G051016 reply brief on appeal

Category:Legal Document

Number of Pages:20

Date Created:April 1, 2015

Date Uploaded to the Library:April 02, 2015

Tags:Sitting, Interim, benefits, legislature, California, Judges, court


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G051016 THE COURT APPEAL THE STATE CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
__________
Harold Sturgeon,
Plaintiff and Appellant,
vs.
County Los Angeles, al.,
Defendants and Respondents.
__________
Appeal from the Superior Court California, County Los Angeles
The Honorable Kirk Nakamura
Superior Court Case No. BC541213
__________
APPELLANT HAROLD STURGEON
REPLY BRIEF APPEAL
__________
Sterling Norris (State Bar No. 040993)
Paul Orfanedes (Admitted Pro Hac Vice)
JUDICIAL WATCH, INC.
2540 Huntington Drive, Suite 201
San Marino, 91108-2601
Tel.: (626) 287-4540
Attorneys for Plaintiff-Appellant Harold Sturgeon
TABLE CONTENTS
TABLE CONTENTS .........................................................................
TABLE AUTHORITIES ...................................................................
INTRODUCTION ..................................................................................
ARGUMENT .........................................................................................
CONCLUSION ....................................................................................
CERTIFICATE COMPLIANCE
PURSUANT RULE 8.520(c) ...........................................................
PROOF SERVICE
TABLE AUTHORITIES
Cases
Bautista State California,
201 Cal.App.4th 716 (2011) .................................................
Coshow City Escondido,
132 Cal.App.4th 687 (2005) ..................................................
Munoz City San Diego, Cal.App.3d (1974).........................................................
People Nickerson,
128 Cal.App.4th (2005) .........................................................
Smith Adventist Health System/West,
182 Cal.App.4th 729 (2010) .........................................................
Sturgeon County Los Angeles,
191 Cal.App.4th 344 (2010) ................................................. passim
Sturgeon County Los Angeles,
167 Cal.App.4th 630 (2008) ................................................. passim
Constitutional Provisions
Cal. Const., art. VI, ................................................................. passim
Statutes, Rules, and Ordinances
Gov Code 68220(a) ..........................................................................
Gov Code 68220(b)..........................................................................
Gov Code 68915 ..............................................................................
Stats. 2009, ch. 1(c) .........................................................................
INTRODUCTION
Sturgeon complaint his second challenge since 2006 the
County payment supplemental judicial benefits puts squarely
issue the inherent conflict between the interim, temporary nature and the inexorable passage time. Sturgeon held that the benefits
issue were compensation and, because they had never been prescribed
the Legislature, violated Article VI, Section the California
Constitution.1 Sturgeon held that was interim measure that
prescribed payment the benefits then-sitting judges for the balance the judges terms office.2 reaching this conclusion, the Court
Sturgeon expressly declared that was not permanent fix
the constitutional defect identified Sturgeon and that the hastily enacted
measure only sought preserve the status quo until comprehensive
judicial compensation scheme could enacted.
Six years have passed since the February 2009 legislation was
enacted. Judges have left the bench and new judges have been appointed
elected. All nearly all the judges who have remained the bench
since 2009 have begun new, six-year terms.
Sturgeon County Los Angeles, 167 Cal.App.4th 630 (2008) Sturgeon
Sturgeon County Los Angeles 191 Cal.App.4th 344, 348, 352,
354, 355 (2010) Sturgeon made fundamental policy choice about the payment
benefits these new judges and judges who began new terms following the
statute enactment. The statute ambiguous best this regard.
result, while may have satisfied Article VI, Section the
California Constitution interim measure for judges who were sitting the bench six years ago, does not for new judges judges who
have begun new terms. Because such judges constitute all nearly all
currently sitting judges, the County continued payment the benefits
unlawful. arguing the contrary, the County not Sturgeon that asking this Court sit super legislature and now make permanent
what the Legislature never intended permanent.
Sturgeon does not seek dictate the reasonable timing any
legislative action. Nor does raise any entirely new challenges the
supplemental judicial benefits issue.
The County claims the
contrary are distortions Sturgeon arguments. The decision the trial
court must vacated and the case remanded for further proceedings.
ARGUMENT
Sturgeon complaint plainly alleges that the County payment
supplemental judicial benefits six years after the enactment illegal because the 2009 legislation was never intended permanent
authorization. Clerk Transcript 26, 19-20 and pp. 31-32, and 39. Sturgeon repeatedly states that was only
interim measure. uses the word interim describe least
times.
Sturgeon II, 191 Cal.App.4th 348, 352, 354, and 355.
Sturgeon found, authorized payment the benefits for the
balance any judge term office. Sturgeon II, 191 Cal.App.4th
353. The Court declared, Thus, sitting judges, benefit payments for
the balance their terms are clearly now prescribed under the strictest
interpretation the term. Id.
Those judges terms are now over.3 The benefits prescribed interim basis for the balance any judge term office are
longer authorized.
Recognizing this truth does not seek dictate the
timing future legislative enactments, the County claims. simply
recognizes the temporary nature the Legislature authorization.
II.
Sturgeon repeated references the interim nature were not mere predictions about future legislation, the County
suggests. They were essential the Court ruling. Sturgeon II, 191
Because the County never argued the contrary, any opposition
this point has been waived. See Smith Adventist Health System/West, 182
Cal.App.4th 729, 746 (2010) (argument waived when one party aware the other party position and fails oppose it).
Cal.App.4th 352. Sturgeon the Court found that sensitivity
substantial variations judicial compensation was important part any
Article VI, Section analysis:
Because the legislative responsibility with respect judicial
compensation, including necessity the participation the
executive branch, now the principal means protecting the
independence the judicial branch, considering
compensation judges receive, must careful that fact
the Legislature has exercised its prescriptive role.
particular, unlike the concern employees might receive
excessive pay must addition sensitive the
potential that, the absence proper direction from the
Legislature, judges might subject substantial variations compensation determined solely local authorities.
Sturgeon 167 Cal.App.4th 654. Sturgeon II, Sturgeon argued that did not resolve any
truly fundamental issues because left place compensation scheme
characterized the Judicial Council hodgepodge, patchwork quilt varying benefits not based any rational consistent statewide plan
formula, but resulting from the individual history each court and
county. See pp. 25-26, 18-20. The interim nature
led the Court conclude that satisfied Article VI, Section 19,
despite the wide disparity judicial compensation authorized:
Finally, Sturgeon argues Senate Bill invalid because does nothing immediately address the disparity
judicial benefits paid various counties throughout the state.
Because Senate Bill interim measure, waiting
further legislative action, find this argument unpersuasive.
Sturgeon II, 191 Cal.App.4th 354. The Court finding that
was only interim measure balanced out the fact that
authorized temporary basis and only for the remainder then-sitting
judges terms wide disparity judicial compensation.
The Court
concluded, Thus, whatever permanent remedy the Legislature eventually
adopts will entitled the well-established judicial deference the
legislative branch. Id. 355. The interim, temporary nature cannot divorced from the Court conclusion Sturgeon II. lies
the very heart the Court decision.
III.
The County rhetorical question asks [h]ow prediction about
what the Legislature will some undefined time the future [could]
serve the lynchpin for court analysis about the constitutionality
statute presently drafted easily answered. can
understood fundamental policy choice only interpreted
interim, stopgap measure that preserved the status quo for then-sitting
judges judges who had relied the existence the benefits. See Stats.
2009, ch. 1(c). fact, were read anything other than
interim, temporary authorization for then-sitting judges only, the provision
would not have satisfied Article VI, Section 19. would represent
default the policy choices the counties and county-based courts
the State, some which likely did not know did not believe they had
authority pay supplemental judicial benefits. would
abrogation the Legislature constitutional responsibilities. Sturgeon
167 Cal.App.4th 653-54.
IV.
Given the interim nature authorization, Sturgeon
present complaint not the County asserts that the Legislature failed enact permanent fix the constitutional defect identified Sturgeon
Sturgeon complaint that the County continued payment benefits
exceeds own, limited authorization the benefits. Because authorized the continued payment benefits for the balance
sitting judges terms office and all not nearly all judges sitting 2009
have either left the bench begun new six year terms, the benefits are
longer prescribed.
This not non-justiciable question. Sturgeon complaint asks the
Court determine whether prescribes benefits for new judges judges who began new, six-year terms following the statute enactment 2009. Undertaking this quintessential legal analysis does not intrude
the Legislature constitutional prerogatives. certainly did not
Sturgeon Sturgeon II. does not ask the Court rule the
wisdom 11. Nor does ask the Court decide purely
political question. only requires the Court undertake the same legal
analysis undertaken both Sturgeon and Sturgeon II.4 Specifically, the
Court must decide whether the Legislature has effectively resolve[d] the
truly fundamental issues and establish[e]d effective mechanism
assure the proper implementation its policy decisions with respect
new judges and judges who began new, six-year terms. Sturgeon 167
Cal.App.4th 653; Sturgeon II, 191 Cal.App.4th 353.
The County reliance Bautista State California, 201
Cal.App.4th 716 (2011), Munoz City San Diego, Cal.App.3d
(1974), Coshow City Escondido, 132 Cal.App.4th 687 (2005), and its
other political question cases misplaced. Bautista not point
the County claims. Bautista, the plaintiffs challenged the adequacy
heat illness prevention regulations applicable all outdoor places
employment. Bautista, 201 Cal.App.4th 722-23. The plaintiffs believed
the regulations did not protect outdoor workers sufficiently and, after their
efforts advocate for improvements the regulations were unsuccessful,
the plaintiffs asserted they were left with choice but ask the Court
require the State take action. Id. 723. Unlike Sturgeon, the plaintiffs
The Court did not undertake this analysis Sturgeon Sturgeon because the issue was not ripe. required the passage time and the
expiration then-sitting judges terms become ripe. Bautista did not present the Court with any legal standard Article VI,
Section against which the regulations could measured.
They
simply wanted more protection for workers. The Court found that could
not grant the plaintiffs the relief they requested: cannot formulate decree that addresses the wisdom
the policies embodied the existing regulations simply
because appellants perceive the solution preventing heat
illnesses among farmworkers differently from the Standards
Board, the agency entrusted the Legislature adopt safety
standards.
Id. 735.
Munoz concerned challenge equal protection grounds the
compensation paid the City San Diego the members its city
council. Munoz, the Court Appeal determined that the amount
such salaries purely political question committed the electorate, not the courts, under Article XI, Section the California Constitution and
was unreviewable result. Cal.App.3d
Coshow concerned challenge city choice approved
chemical additives comply with state-mandated water fluoridation plan.
The Court Appeal found the city choice was distinctively legislative
process and that d[id] not have the authority exercise its independent
judgment with respect the performance legislative functions. 132
Cal.App.4th 706.
Sturgeon does not challenge the wisdom the Legislature
enacting perceive the solution judicial compensation
differently from the Legislature, Bautista. does not challenge the
amount compensation received any judge, Munoz. Nor does
ask the Court exercise its independent judgment with respect the
performance legislative functions, Coshow. challenges
whether the Legislature prescribed payment benefits new judges
judges who began new, six-year terms following enactment.
Neither Bautista, Munoz, Coshow, nor any the County other cases
demonstrate that the Court incapable making this determination
without overstepping its judicial authority. Sturgeon raises quintessential
legal question that the Court completely competent decide, just
did both Sturgeon and Sturgeon II.
VI.
Also incorrect the County assertion that Sturgeon ambiguity
argument new. not.5 Throughout this litigation, Sturgeon has clearly
and consistently argued that was interim, temporary measure,
The County claim that Sturgeon articulated his challenge less than four times and never raised his ambiguity argument
misses its mark. Sturgeon first challenge shortly after the
statute was enacted 2009 did not raise the issue treatment new
judges judges who began new terms because the statute had just been
enacted. was not ripe. See also supra note
not permanent solution the constitutional defects identified Sturgeon While Sturgeon decided that prescribed the benefits for
the balance sitting judges terms office, the statute did not effectively
resolve[d] the truly fundamental issue with respect new judges and
sitting judges who have begun new six year terms.
Sturgeon 167
Cal.App.4th 653. Sturgeon demonstrated his opening brief and
this reply, ambiguous best about the authorization
benefits new judges judges who began new terms following the
enactment 11.
Sturgeon did not make new argument
pointing out this ambiguity. developed and elaborated the legal
theory set forth his complaint.6 Because ambiguous
about authorizing benefits new judges and judges who begin new terms,
the statute does not resolve the truly fundamental issue whether these
judges are receive benefits.
The County tries avoid this conclusion citing two provisions 11, both which plainly refer then-sitting judges, not new judges
The County argument about Sturgeon prayer for relief also
baseless. Again, since was enacted more than years ago, all
nearly all the judges the court are either new judges have begun
new six-year terms. Under the circumstances, the fact that Sturgeon
prayer for relief Sturgeon seeks blanket declaration that the benefits
violate Article VI, Section distinction without difference. Nor has
the County identified single judge who not new has not begun new
six-year term. judges who began new terms following enactment. The first
does expressly: Judges court whose judges received supplemental
benefits July 2008, shall continue receive supplemental
benefits. Gov Code 68220(a). The second states its entirety, The
county also authorized elect provide benefits for all judges the
county. Gov Code 68220(b). This single, cryptic sentence, which
appears termination section, not its authorization
section, makes reference new judges judges who began new terms
following enactment. The sentence far too slender reed support the weighty claim that the Legislature intended permanently
authorize the payment benefits all judges for ever and ever.
Sturgeon did not nearly far declare that
authorized benefits new judges and judges who have begun new terms. only found that, under 11, counties are given the option
terminating benefits judges who were not sitting when Senate Bill
was passed and terminating benefits for sitting judges when the terms they
were serving when the legislation was adopted expired. Sturgeon II, 191
Cal.App.4th 354.
Termination not authorization, however.
The
quoted passage concerns safeguards put place the Legislature
None the provisions section 68220(b) appear apply courtprovided benefits. Compare Gov Code 68220(a) with Gov Code
68220(b).
ensure that its policy choice was carried out.
authorization. does not concern the Court Sturgeon had found that
permanently authorized benefits authorized them for new judges
judges who began new, six-year terms following the statute enactment,
could have said expressly. did not. only stated expressly that
benefits were authorized for the balance any sitting judge term
office.
Sturgeon II, 191 Cal.App.4th 353.
Again,
ambiguous best about whether authorizes benefits for new judges
judges who began new, six-year terms following enactment.
does not resolve this truly fundamental issue.
VII. claiming otherwise, the County not Sturgeon that asks
the Court sit super legislature and make permanent what the
Legislature never intended permanent.
The County overly
expansive reading also ignores the admonition Sturgeon
that, determining whether the Legislature has exercised its prescriptive
role, the Court must sensitive the potential that judges might
subject substantial variations compensation the absence proper
direction from the Legislature.
Sturgeon 167 Cal.App.4th 654.
Treating interim authorization permanent ignores that
admonition. The payment benefits new judges and judges who began
new terms following the enactment has not been prescribed
within the meaning Article VI, Section 19, and the County continued
payment benefits these judges unlawful.
VIII. January 2015, before Sturgeon filed his opening brief, asked
this Court transfer this appeal the Fourth Appellate District, Division
One panel that decided Sturgeon and Sturgeon II. his moving papers,
Sturgeon demonstrated that, because the Orange County Superior Court
judge who heard this case was sitting designation judge the Los
Angeles County Superior Court, the appeal properly should have been sent the Second Appellant District, then reassigned appropriate
appellate court avoid any appearance conflict, occurred both
Sturgeon and Sturgeon II. Sturgeon also demonstrated that, because the
Division One panel decisions Sturgeon and Sturgeon are directly
issue this appeal Sturgeon III that same Division One panel should
hear and decide Sturgeon III. also demonstrated that significant judicial
resources could conserved and efficiencies gained the same Division
One panel heard and decided his appeal. The Court denied the motion
February 26, 2015, without explanation.
Sturgeon hopes that, now that his appeal has been fully briefed, the
Court will appreciate the importance both curing the error directing
this appeal improper appellate district8 and having the Division One
panel that heard and decided both Sturgeon and Sturgeon also hear and
decide this appeal. was response the Division One panel Sturgeon opinion that the Legislature enacted 11, and the same Division
One panel decision Sturgeon that directly issue this appeal. not cure this error would ignore the authority the Division One panel
and create the appearance improper forum shopping the judiciary
matter substantial importance all judges across the State.
Transfer the proper court mandated statute. Gov Code
68915; see also People Nickerson, 128 Cal.App.4th (2005)
(transferring misdirected appeal proper court after appeal was fully
briefed).
CONCLUSION the foregoing reasons and for the reasons set forth his opening
brief, Plaintiff-Appellant Harold Sturgeon respectfully requests that the
judgment the Superior Court reversed and the case remanded for
further proceedings.
Dated: April 2015
Respectfully submitted,
9(~,..l~[, t{~ t~.ro
Sterling (SBN 040993)
Paul Orfanedes
(Admitted Pro Hac Vice)
JUDICIAL WATCH, INC.
2540 Huntington Drive, Suite 201
San Marino, 91108-2601
Tel: (626) 287-4540
Fax: (626) 237-2003
Counsel for Plaintiff-Appellant
Harold Sturgeon
CERTIFICATE COMPLIANCE
Pursuant Rule 8.204(c) the California Rules Court, hereby
certify that this brief contains 3,891 words, including footnotes. making
this certification, have relied the word count the computer program
used prepare the brief.
J1)
PROOF SERVICE employed the City Washington, District Columbia. over the age and not party the within action. business
address 425 Third Street, S.W., Suite 800, Washington, D.C. 20024. April 1,2015, served the foregoing document described as:
APPELLANT HAROLD STURGEONS
REPLY BRIEF APPEAL the parties this action placing true and correct copy thereof
sealed envelope addressed follows:
Counsel for Respondents Harold Sturgeon County
Los Angeles, al.
Elwood Lui
Erica Reilley
Charlotte Wasserstein
JONES DAY
555 South Flower Street, Fiftieth Floor
Los Angeles, 90071-2300
The Hon. Kirk Nakamura
c/o Clerk the Court
Superior Court California, County Orange
700 Civil Center Drive West
Santa Ana, 92701 delivered said documents authorized courier driver
authorized receive documents, envelope package designated
the express service carrier with delivery fees paid provided for,
addressed the person whom served the next business day. declare under penalty perjury the laws the State
California that employed the office member the bar this
Court whose direction the service was made, that the foregoing true
and correct, and that this declaration was executed April 2015,
Washington, D.C.
David Rothstein