Vol. 22 No. 7- Spielbauer decision vacated!

May 9, 2007

The California Supreme Court, on May 9, 2007, granted the petition for review, requested by the County of Santa Clara, in the case of Spielbauer v. County of Santa Clara (Case: S150402).

In the Spielbauer decision, the Court of Appeal ruled that, despite the Supreme Court’s decision in Lybarger v. City of Los Angeles, a public entity had no authority to guarantee a public sector employee that compelled incriminating statements would not be used against the employee in a subsequent criminal prosecution.  The Court of Appeal had ruled that, absent the granting or offering of formal use immunity, the public employee could not be compelled to answer potentially incriminating statements, nor could the employee be charged with insubordination for refusing to co-operate.

The Spielbauer court stated that the California Supreme Court, in deciding Lybarger, “.simply overlooked the requirement of immunity, treating the federal exclusionary rule as a substitute for it.”  Furthermore, the Spielbauer court held that in order for the public sector employer to grant use immunity, it needed legislative authority, approval from a prosecutor and judicial oversight and review.

For more details on the Spielbauer case, please see Client Alert Vol. Twenty-two, No. Two(1/30/07), and No. Three (3/30/07).

The firm of Jones & Mayer, as general counsel to the California State Sheriffs’ Association (CSSA) and the California Police Chiefs Association (CPCA) filed an amicus letter with the Supreme Court urging that it accept the case for review.  We will now file a full amicus brief with

the Supreme Court, on behalf of CSSA and CPCA, supporting the position of Santa Clara County .


When the Supreme Court accepts a case for review, the lower court’s decision is vacated.  As such, it is as if there had been no Spielbauer decision and the law remains as it was prior to that case.  From a practical perspective, this means the holding in Lybarger v. City of Los Angeles is still the law in California and will remain so until, and unless, the Supreme Court decides differently.

Therefore, law enforcement agencies, and all public sector employers, should continue to proceed as has been done for the past 25 years when interrogating a public sector employee, as part of an internal administrative investigation, on a matter which could also be criminal in nature.  Continue to admonish employees pursuant to Lybarger so the employees can answer incriminating questions without fear that such statements will thereafter be used against them in criminal proceedings.  Should the employee refuse to cooperate, he or she could be charged with insubordination.

As always, we urge that you confer with, and receive advice and guidance from, your agency’s legal counsel to insure compliance with the law.  Should you wish to discuss the Supreme Court’s action in this matter, please feel free to contact me at 714 – 446-1400 or via e-mail,mjm@jones-mayer.com.