BINDING EFFECT OF SPIELBAUER vs. COUNTY OF SANTA CLARA
March 30, 2007
As a result of the opinion recently issued by the Sixth District California Court of Appeal,Spielbauer v. County of Santa Clara , 146 Cal. App. 4th 914 (2007), many law enforcement agencies are questioning how Spielbauer affects peace officers, since the employee discussed in the Spielbauer opinion was not a peace officer.
Spielbauer held that a public employee cannot be charged with insubordination for refusing to answer questions, as part of an administrative investigation into the employee’s conduct on the job, if the answer to such questions might incriminate him or her, unless the employee is formally granted or offered immunity.
The Court held that such immunity could be granted only (1) if legislative authorization existed, (2) after prosecutorial review, and, finally, (3) with court approval. The Court held that, absent the above, the public employer has no power to unilaterally immunize statements of its employees.
The decision applies to ALL public sector employees, including law enforcement. As the Court notes, there currently exists legislative authority, as far a peace officers are concerned, through the requirements of the Public Safety Officers Procedural Bill of Rights Act (POBR), G.C. sec. 3300 – 3312. There is no such legislation regarding general public employees. Nonetheless, the prosecutorial and judicial oversight is still needed, even with peace officers.
Generally, trial courts are bound by the decisions of all of the Courts of Appeal and the Supreme Court of the State of California . The California Supreme Court has clearly addressed this issue in the case of Auto Equity Sales, Inc. v. Superior Court of Santa Clara County , 57 Cal. 2d 450, 455 (1962):
The decisions of this [Supreme] court are binding upon and must be followed by all the state courts of California . Decisions of every division of the District Courts of Appeal are binding . . . upon all the superior courts of this state . . .. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.
Therefore, based upon this general principle, all Superior Courts within the State of California are bound to follow the decision of the Sixth District Court of Appeal in the Spielbauer case until, and unless, there is a conflicting opinion subsequently issued.
If the Spielbauer opinion was conflicting with another Court of Appeal opinion, then a trial court would be permitted to choose between the conflicting opinions. McCallum v. McCallum , 190 Cal. App. 3d 308, 315 (1987). Similarly, if Spielbauer is interpreted as being in direct conflict with California Supreme Court authority, such as Lybarger , a trial court is bound to Supreme Court decisions before Court of Appeal decisions.
HOW THIS AFFECTS YOUR AGENCY
Ultimately, it is difficult to know how a Superior Court will actually rule on the issue of whether a public sector employer can order its public employees to answer possibly incriminating questions, in an administrative investigation, without the formal grant of immunity required by the Court of Appeal in Spielbauer .
At this time, the safest course of action, in our opinion, would be for public employers, including law enforcement agencies, to admonish the employee pursuant to Lybarger, order the public employee, including peace officers, to answer the questions, BUT then inform them that due to the Spielbauer decision we are unable to ensure them their answers will not be used against them in a criminal prosecution.
The decision of whether to cooperate, or not, is then up to the employee and his/her attorney. Nonetheless, even if ordered to answer, a public sector employee cannot be disciplined for refusing to do so, in light of Spielbauer.
This dilemma may be temporarily mitigated if the Supreme Court accepts review of theSpielbauer case. The County of Santa Clara has filed a petition for review in the California Supreme Court and if the Court grants review within the coming weeks, then the Spielbaueropinion cannot be relied upon or cited in any court while that review is pending. We will be sure to inform you as soon as the Supreme Court makes its decision on whether to grant review.
Until that time, the Spielbauer opinion is good law. However, there are significant legal and procedural issues involved in the above analysis and the general conclusions stated above may not be right for your agency.
You should carefully discuss all legal issues and options with your agency’s legal counsel before making any decisions about how to proceed as to administrative investigations conducted by or on behalf of your agency.
If you wish to discuss this matter in greater detail please feel free to contact us at 714-446-1400 or by e-mail at mjm@jones-mayer.com.