Jones v. Whisenand
8 Cal. App. 5th 543
| Cal. Ct. App. | 2017Background
- Plaintiff Clay Joseph Jones is an alleged sexually violent predator (SVP) who was committed under the Sexually Violent Predator Act (SVPA) proceedings that have been pending since 2004; he alleges prolonged confinement at Coalinga State Hospital due to his counsel’s deficiencies.
- Jones sued his appointed SVPA counsel, Alan R. Whisenand, pro per for legal malpractice and for violations of 42 U.S.C. § 1983, claiming ineffective assistance, failure to investigate, failure to obtain experts, and resulting wrongful prolonged confinement.
- The trial court sustained Whisenand’s demurrer to Jones’s first amended complaint without leave to amend, ruling Jones failed to plead actual innocence/postconviction exoneration and failed to allege Whisenand acted under color of state law for § 1983 purposes.
- On appeal, the Court of Appeal considered whether the criminal-malpractice actual innocence requirement applies to malpractice claims arising from SVPA (civil) proceedings and whether a public defender may be a state actor under § 1983 when performing traditional defense functions.
- The Court held that (1) the criminal malpractice actual innocence rule does not strictly apply to SVPA malpractice claims, but public‑policy concerns require a favorable‑termination (i.e., the SVPA proceedings must be terminated in the plaintiff’s favor) before such malpractice claims may proceed; (2) the malpractice claim should have been dismissed with leave to amend and stayed pending timely pursuit of favorable termination; and (3) the § 1983 claim was properly dismissed because Whisenand, as a public defender performing traditional counsel functions, was not a state actor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the criminal‑malpractice "actual innocence" requirement applies to malpractice claims arising from SVPA proceedings | Jones: SVPA proceedings are civil, so the criminal‑malpractice actual innocence/postconviction relief requirement should not apply | Whisenand: SVPA has criminal‑like protections and public policy supports applying the actual innocence rule | Actual innocence rule does not strictly apply to SVPA malpractice claims, but plaintiff must show favorable termination of SVPA proceedings before malpractice suit proceeds (favorable‑termination requirement) |
| Whether Jones could proceed now without favorable termination | Jones: he alleged counsel’s negligence causing prolonged confinement, so suit may proceed | Whisenand: allowing suit now would risk conflicting resolutions and collateral attacks on SVPA process | Malpractice claim must be stayed/dismissed until SVPA proceedings terminate in plaintiff’s favor; dismissal should have been with leave to amend and stay while plaintiff timely pursues favorable termination |
| Whether a public defender is a state actor under 42 U.S.C. § 1983 when performing defense functions in SVPA proceedings | Jones: California law (Craft cited) treats public defenders as state actors; Whisenand is a public defender, so § 1983 applies | Whisenand: under Polk County v. Dodson, public defenders performing traditional defense functions do not act under color of state law for § 1983 | Court: Polk County governs; public defenders performing traditional lawyer functions are not state actors for § 1983, so § 1983 claim properly dismissed without leave to amend |
| Remedy while SVPA proceedings are pending | Jones: malpractice and § 1983 suits should proceed to vindicate rights now | Whisenand: permitting suits now would produce inconsistent outcomes and is barred by public policy | Court: Jones retains procedural remedies within SVPA (Marsden motions, habeas, appeals); malpractice action must be stayed pending favorable termination, § 1983 claim dismissed |
Key Cases Cited
- Heck v. Humphrey, 512 U.S. 477 (1994) (civil suit that would imply invalidity of conviction/sentence barred unless conviction/sentence has been favorably terminated)
- Coscia v. McKenna & Cuneo, 25 Cal.4th 1194 (2001) (criminal‑malpractice favorable‑termination/actual‑innocence principles and guidance to stay malpractice claims while postconviction remedies pursued)
- Yount v. City of Sacramento, 43 Cal.4th 885 (2008) (state common‑law claims barred under Heck principles to prevent collateral attack and inconsistent resolutions)
- Polk County v. Dodson, 454 U.S. 312 (1981) (public defenders do not act under color of state law when performing traditional defense functions for § 1983 purposes)
- Wallace v. Kato, 549 U.S. 384 (2007) (Heck does not apply to anticipated future convictions; courts may stay civil actions until criminal proceedings conclude)
- Reilly v. Superior Court, 57 Cal.4th 641 (2013) (SVPA proceedings are civil but include criminal‑style procedural protections)
- In re Smith, 42 Cal.4th 1251 (2008) (recognizes rare instances where postconviction relief may occur after SVP petition is filed; illustrates why actual‑innocence requirement would be impracticable for most SVP litigants)