AGRICULTURAL LABOR RELATIONS BOARD, Pеtitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; GERAWAN FARMING, INC., Real Party in Interest.
No. C081373
Third Dist.
Oct. 25, 2016.
675
Paul M. Starkey and Todd M. Ratshin for Petitioner.
No appearance for Respondent.
Irell & Manella, David A. Schwarz; Barsamian & Mood, Ronald H. Barsamian; and Michael P. Mallery for Real Party in Interest.
OPINION
ROBIE, J.—Under the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (
For some period of time before March 2015, the board had delegated plenary authority to seek injunctive relief under
In May 2015, general counsel asked the board to approve a proceeding for injunctive relief against Gerawan Farming, Inc. (Gerawan). The board gave its conditional approval to that proceeding. When Gerawan asked the board to disclose the communications between the board and general counsel regarding the matter under the California Public Records Act,2 the board refused, claiming privilege. Gerawan brought a writ proceeding in Sacramento County Superior Court seeking to force the board to disclose the requested communications, and the court orderеd disclosure. The board brought the present writ proceeding in this court to challenge the superior court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
Before we set forth the facts underlying this mandate proceeding, we first address a procedural matter, then provide some legal background that is necessary to a full understanding of the underlying facts.
Procedural Matter
In response to the board’s petition for a writ of mandate, this court issued an order to show cause. In response to the order to show cause, Gerawan filed a document labeled a “response” that was in the form of an unverified legal brief that contained only argument as to why this court should deny the board’s petition. This was improper. “If the court issues an alternative writ or order to show cause, the respondent or any real party in interest, separately or jointly, may serve and file a return by demurrer, verified answer, or both.” (Cal. Rules of Court, rule 8.487(b)(1); see also
Gerawan would do well to be more careful in the future. The submission of “a return with a verified answer or demurrer is not a technicality, but is an integral and critical step in the procedure for determining the merit of a petition for extraordinary relief.” (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1085 [151 Cal.Rptr.3d 526].) One possible consequence of filing a return that contains neither a demurrer nor a verified answer is that the return will be stricken and not considered in determining the merits of the mandate petition. (See Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1287 [2 Cal.Rptr.3d 484].) Indeed, that is what the board has asked us to do here.
Legal Background
The Act “is designed to provide agricultural workers with protection of their collective bargaining rights comparable to that provided nonagricultural workers by the [National Labor Relations Act;
Under the Act, the five-member board is empowered (among other things) to prevent agricultural employers, labor organizations, and their agents from engaging in unfair labor practices. (
In addition to creating the board, the Act also established the position of the board’s general counsel. (
The Act also provides that general counsel “shall have such other duties as the board may prescribe or as may be provided by law.” (
It is this delegation that led to the events giving rise to the underlying dispute in this case, as we now explain.
Underlying Facts
On April 27, 2015, Rafael Marquez Amaro filed a charge with the board’s Visalia regional office (case No. 2015-CE-011-VIS) alleging that on or about April 24 he had received a “written warning/suspension for whistling in
On May 6, the regional office asked Gerawan to identify the individual or individuals who decided to suspend and terminate Marquez. On May 8, Gerawan responded to the regional office. Noting the existence of the board’s March 2015 memorandum regarding the delegation of аuthority to seek injunctive relief under
On the morning of May 12, Samantha Cooper, an assistant to the board’s chairman, received a telephone call from a member of the team from the regional office investigating the Marquez matter, who told her the board would be receiving a “TRO packet” that day for the board’s review and decision and the declaration in the packet contained “inaccuracies” and “statements... that were untrue.” Cooper immediately reported the phone call to the board’s executive secretary, J. Antonio Barbosa, who directed her to type up a statement of the conversation, while keeping the identity of the caller confidential. That afternoon, Barbosa circulated Cooper’s statement to representatives from the regional office and Gerawan pursuant to the board regulations governing prohibited communications (Cal. Code Regs., tit. 8, § 20700 et seq.). Gerawan immediately requested that the board provide Gerawan with “any documents submitted to the Board by the General Counsel in support of its request to commence an enforcement action against Gerawan.”
As the caller had predicted, on May 12 the board received a request from general counsel for authorization to file a petition for a temporary restraining order (TRO) in the Fresno County Superior Court in the Marquez matter. The board ruled on that request later the same day by means of a letter to general counsel that conditionally authorized commencement of a TRO proceeding. The board did not make the authorization letter public but referred to it in an administrative order dated two days later, May 14.
The day after the board issued the administrative order, Gerawan requested a copy of the authorization letter and any related documents pursuant to the
A week later, on June 1, general counsel commenced the TRO proceeding in Fresno. The next day, June 2, Gerawan filed a petition for a writ of mandate and complaint for declaratory and injunctive relief against the board in the Sacramento County Superior Court seeking to require the board to disclose the documents Gerawan had requested under the California Public Records Act. (See
On June 10, the court in Fresno denied the request for injunctive relief and the regional director voluntarily dismissed the case in July 2015. Meanwhile, the mandate proceeding went forward in Sacramento and was set for hearing in January 2016.5 In opposition to the petition, the board argued the documents were “privileged against disclosure because [they] are deliberative in nature, arise in the context of litigation, concern litigation drafts and attorney work product, and/or concern confidential communications between the Board and the General Counsel.”
On January 8, 2016, the superior court issued its ruling granting Gerawan’s petition in part and denying it in part. Addressing the TRO packet and the board’s authorization letter, the court first concluded that “[t]he documents are not attorney-client communicatiоns or attorney-work product because the General Counsel was not acting as the Board’s attorney.” The court took the view that once Marquez and the union filed their charges against Gerawan, general counsel assumed the role of prosecutor in the unfair labor practice case pending before the board, and general counsel could not, consistent with constitutional due process principles, concurrently give legal advice to the board in the same case. Because “recognizing an attorney-client relationship between the Board and the General Counsel would raise serious due process concerns in the administrative case,” the court decided that general counsel could not be acting as the board’s attorney with respect to the decision whether to seek injunctive relief under
The court also rejected the board’s argument that disclosure of the TRO packet and the authorization letter “would invade the Board’s deliberative process privilege.” With respect to the TRO packet, the court found that the board “failed to explain how disclosing [documents] submitted to the Board by General Counsel—a party advocate—would impair the Board’s deliberative process or undermine the Board’s ability to perform its functions” and “failed to show that the public interest in nondisclosure of the TRO packet clearly outweighs the public interest in disclosure.” With respect to the authorization letter, the court found it was “not a ‘predecisional’ communication that is part of the ‘deliberative process.’ It is the result of the deliberative process: the Board’s decision.”6
On February 8, 2016, the superior court filed its order and judgment granting Gerawan’s requests to compel the board to make available to Gerawan (1) “all documents submitted by the General Counsel in support of the General Counsel’s request for authorization to file a petition for a TRO, namely the ‘TRO Packet’ ” and (2) “the Board’s communications to the General Counsel authorizing the filing of the petition for a TRO, including the Board’s May 12, 2015 letter to the General Counsel granting conditional authorization.” The court stayed enforcement of its order for 10 days to allow the board to seek a stay from this court, which the board eventually did on February 24, when it commenced the present proceeding by filing its petition for writ of mandate and request for immediate stay. (See
On February 26, this court issued a stay of the superior court’s February 8 order and judgment and thereafter, on March 24, directed that an order to show cause issue.
DISCUSSION
“At the heart of the [California Public Records Act] is the declaration that ‘every person has a right to inspect any public record, except as hereafter
Among the documents the California Public Records Act exempts from disclosure are “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relаting to privilege.” (
“The attorney-client privilege applies to communications in the course of professional employment that are intended to be confidential. [Citations.] Under the Evidence Code, a client holds a privilege to prevent the disclosure of confidential communications between client and lawyer. (
The dispute in this case focuses on the nature of the relationship between the board and general counsel with respect to the decision whether to seek injunctive relief under
For purposes of the attorney-client privilege, a lawyer is “a person authorized, or reasonably believed by the client tо be authorized, to practice law in any state or nation” (
According to the board, “[t]he trial court completely misconstrued the nature of the Board’s statutory authority to seek injunctive relief, and its relationship with its General Counsel when exercising such authority.” In the board’s view, “[t]he trial court wrongly concluded that such determinations by the Board whether to seek injunctive relief are adjudicative proceedings” when “[t]hey clearly are not.” Furthermore, the board claims, “[i]n such matters, the General Counsel acts on behalf of the Board, and the relationship between the Board and General Counsel is one of attorney-client.” For the reasons that follow, we agree.
There are no California decisions addressing the nature of the relationship between the board and its general counsel with respect to decisions to seek injunctive relief under
At least implicitly, if not explicitly, the court in Frankl recognized that with respect to requests for injunctive relief, the NLRB’s general counsel acts as the NLRB’s lawyer—performing the “lawyerly function” of “petitioning a court for relief“—and by delegating its authority to seek injunctive relief to its general counsel, the NLRB did nothing more than authorize its lawyer to take action on the NLRB’s behalf without seeking specific approval from the
What the Ninth Circuit at least implicitly recognized in Frankl, the NLRB itself explicitly declared in Holland Rantos Co. (1978) 234 NLRB 726. There, the NLRB rejected an employer’s claim that the NLRB’s general counsel had engaged in improper ex pаrte communications with the NLRB in connection with seeking an injunction under section 10(j) of the NLRA, observing that “[t]he relationship between the General Counsel and the [NLRB] in 10(j) proceedings is analogous to the attorney-client relationship with its attendant privilege of confidentiality.” (Holland Rantos Co., at p. 726, fn. 3.) Relying on that decision, the district court in U.S. ex rel. NLRB v. Electro-Voice (N.D.Ind. 1995) 879 F.Supp. 919, 924 concluded that “all communications regarding § 10(j) matters between the General Counsel and the [NLRB] are attorney-client communications, [citation], and therefore, are entitled to protection. Discovery as to such communications will not be allowed.”
Gerawan contends (1) these federal decisions are not binding on this court; (2) Frankl did not “hold” that the NLRB and its general counsel were in an attorney-client relationship; and (3) the NLRB’s decision in Holland Rantos Co. is not “persuasive, given its conclusory dismissal of due process concerns.” These contentions are unavailing.
As to Gerawan’s first point, the fact that the federal decisions are not binding on us does not mean they are not persuasive to us. As to its second point, the fact that Frankl did not hold that an attorney-client relationship existed between the NLRB and its general counsel does not mean the court’s analysis of the point is any less convincing. The Ninth Circuit recognized in Frankl that in addition to wielding the prosecutorial functions of the NLRB, the NLRB’s general counsel serves as the supervisor of the NLRB’s legal staff and thus functions, in that respect, as the NLRB’s lawyer. The Ninth Circuit further recognized that the task of petitioning a court for relief is a “lawyerly function“—that is, it is a function that must be performed by a lawyer. Whether the NLRB delegated its authority to seek injunctive relief under section 10(j) of the NLRA to its general counsel, the NLRB could exercise that authority only by employment of an attorney. (See Frankl, supra, 650 F.3d at p. 1347 [“§ 10(j) gives the Board the power to petition a court for relief, which the Board necessarily does through counsel“].) In light of this fact, the delegation of the power to seek injunctive relief to general counsel—who already serves as the NLRB’s lawyer by supervising the NLRB’s legal staff—appears to be nothing other than a client’s authorization to its attorney to take action on the client’s behalf. That was the essence of the court’s analysis in Frankl, and we find that analysis persuasive under the comparable provisions of the Act at issue here, notwithstanding the fact that we are not
To the extent Gerawan argues that the terms of the delegation itself do “not contemplate the production of privilege, confidential evidence or confidential communications between the Board and General Counsel,” we disagree. In Gerawan’s view, because the delegation memorandum instructs general counsel to provide the board with “copies of the proposed complaint for [injunctive] relief and the papers in support thereof,” “[t]he papers to be submitted to the Board are not confidential; they are copies of proposed public court filings.” (Italics and boldface omitted.) But as Gеrawan itself acknowledges, at the time the documents are transmitted from general counsel to the board, they are not “public court filings” but proposed public court filings. Gerawan offers no explanation of why documents general counsel proposes to file cannot be protected by the attorney-client privilege when those documents are transmitted by the attorney to the client for approval.
That takes us to Gerawan’s third point, which is really the heart of Gerawan’s argument and the heart of the superior court’s decision. In essence, Gerawan argues, and the superior court concluded, that there cannot be an attorney-client relationship between the board and general counsel with respect to decisions to seek injunctive relief under
Our Supreme Court most recently explored the application of due process principles to the roles played by attorneys employed by administrative
“When... an administrative agency conducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal. [Citation.] A fair tribunal is one in which the judge or other decision maker is free of bias for or against a party. [Citations.] Violation of this due process guarantee can be demonstrated not only by proof of actual bias, but also by showing a situation ‘in which experienсe teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ [Citation.]
“Unless they have a financial interest in the outcome [citation], adjudicators are presumed to be impartial [citation]....
“By itself, the combination of investigative, prosecutorial, and adjudicatory functions within a single administrative agency does not create an unacceptable risk of bias and thus does not violate the due process rights of individuals who are subjected to agency prosecutions. [Citations.] Thus, ‘[p]rocedural fairness does not mandate the dissolution of unitary agencies, but it does require some internal separation between advocates and decision makers to preserve neutrality.’ [Citation.]
“... [T]he state Administrative Procedure Act (
“Significantly, however, the state Administrative Procedure Act requires the internal separation of prosecutorial and advisory functions on a case-by-case basis only. [Citation.] The act does not prohibit an agency employee who acts in a prosecutorial capacity in one case from concurrently acting in an advisory role in an unrelated case. We have summarized the act’s relevant restrictions this way: ‘The agency head is free to speak with anyone in the agency and to solicit and receive advice from whomever he or she pleases—anyone except the personnel who served as adversaries in a specific case. [Citations.] Indeed, the agency head can even contact the prosecutor to discuss settlement or direct dismissal. [Citations.] Virtually the only contact that is forbidden is communication in the other direction: a prosecutor cannot
From Morongo and other decisions, the superior court here drew the conclusions that “[d]ue process requires the internal separation of prosecutorial and advisory functions” and “[i]t is a violation of the constitutional right to due process of law for an agency attorney acting as prosecutor to concurrently advise the administrative decision maker in the same proceeding.” Without deciding whether these conclusions are correct as stated, we agree with the superior court that it may “raise... due process concerns in the administrative case” against Gerawan for general counsel to act both as the prosecutor before the boаrd in that administrative case and as the attorney for the board with respect to the injunctive proceeding against Gerawan under
Notably, early federal case law under the NLRA recognized the potential for due process problems arising from the very grant of authority to the NLRB to seek injunctive relief in the first place. Evans v. International Typographical Union (S.D.Ind. 1948) 76 F.Supp. 881—a case that arose very soon after the NLRB first delegated its authority to seek injunctive relief under section 10(j) of the NLRA to the NLRB’s general counsel—contains this pertinent discussion on the subject:
“[I]t is contended by respondents that if the [NLRB]’s power to petition for interlocutory equitable relief under the provisions of Section 10(j) is delegable, there is no limit to the authority to confer its functions upon the General Counsel and that such delegation could extend even to the distinctly judicial powers оf the [NLRB]. The statute itself, as well as its legislative background, indicates that it was the purpose and policy of Congress to separate the judicial functions of the [NLRB] from any prosecutive or investigative functions. Thus, it is not reasonable that the [NLRB] could properly delegate its functions of a judicial nature, because such a delegation would pervert the Congressional design for the separation of powers within the agency. On the other hand, the delegation of its functions which are of a more prosecutive than judicial nature is in harmony with this design.
“The consistency of such a delegation with the Congressional intent to sever the judicial functions of the agency from its prosecutive activities is
Essentially, the court in Evans recognized that Congress’s very grant of power to the NLRB to seek injunctive relief in the first place raised the specter of due process concerns, inasmuch as the NLRB—if it had ever exercised that power—would have been acting as prosecutor in seeking injunctive relief and as adjudicator in ultimately ruling on the administrative charges. The NLRB avoided this problem by immediately delegating to its general counsel the full and final authority to seek injunctive relief. Nevertheless, it is not difficult to understand how those due process concerns can arise again when the administrative agency—be it the NLRB or the board—conditions its delegation of authority by requiring its general counsel to seek approval from the agency on a case-by-case basis before pursuing injunctive relief. This is so because by making itself part of the prosecutorial process again (by reserving to itself the final decision as to whether to seek injunctive relief), the administrative agency raises legitimate questions about its ability to later serve as a neutral and detached adjudicator with respect to the related administrative charges.
Thus, the due process concerns that drove the superior court’s decision here are not imaginary. But the superior court’s decision to find that there was no attorney-client relationship between the board and general counsel with respect to the decision to seek injunctive relief against Gerawan under
Gerawan’s ultimate concern here is that it will be deprived of a fair trial in the administrative proceeding because of the communications that occurred between the board and general counsel with respect to the decision to seek injunctive relief against Gerawan in superior court under
To the extent Gerawan argues that California law requires disclosure of the communications at issue here because they qualify as prohibited ex parte communications that must be disclosed under the provisions of the Administrative Procedure Act10 and the board’s own rules, we arе not persuaded. Assuming (without deciding) that the communications between the board and general counsel with respect to the decision to seek injunctive relief against Gerawan in the superior court under
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to (1) vacate its judgment partially granting and partially denying Gerawan’s petition for writ of mandate, and (2) enter a new judgment denying Gerawan’s petition in its entirety. The board shall recover its costs in this proceeding.
Nicholson, Acting P. J., and Hoch, J., concurred.