Long Battles and Important Wins: Meinhardt v. City of Sunnyvale
GREGG ADAM
Founding Partner
Messing Adam & Jasmine LLP
On July 29, the California Supreme Court issued an important ruling affecting the deadline to file appeals in employee discipline cases. The ruling arose in a case involving the now-retired Sunnyvale Public Safety Officer David Meinhardt. Under the discretionary coverage for matters of general importance, the PORAC Legal Defense Fund provided its full support to Meinhardt.
Meinhardt’s discipline case dates back to 2017. At that time, Meinhardt wrote a letter, in his capacity as president of the Sunnyvale Public Safety Officers’ Association, that was critical of his chief and the department. His letter — which was approved by the union’s directors and sent to the union’s membership and other stakeholders, including elected officials — lambasted the Department for systematic failures in its internal affairs division. It raised the prospect of a vote of no confidence in the chief. In his letter, Meinhardt noted that the internal affairs lieutenant had recently been “removed.”
In response, the Department launched an investigation into Meinhardt’s actions. It alleged that Meinhardt had met with councilmembers on duty (it turned out that they routinely came to fire stations seeking endorsements) and lied in the letter. The “lie” was because the internal affairs lieutenant said he had resigned rather than been removed from his position. During the investigation, Meinhardt shared his handwritten notes from a one-on-one meeting with the chief, which indicated that the chief had told him that the lieutenant was “removed” (perhaps trying to curry favor with the union).
The first charge was dismissed, but the chief imposed a 44-hour suspension for the use of the word “removed” in the letter. Later, under cross-examination, the chief admitted to initially wanting to terminate Meinhardt. Meinhardt appealed the suspension to a five-person civilian personnel review board, which, despite several conflicting rulings, upheld the discipline. Meinhardt then appealed the decision to the superior court.
Unlike in discipline arbitration, which is, with few exceptions, final and binding, public employees may challenge discipline rulings by personnel boards and similar tribunals by filing a petition for writ of administrative mandamus in superior court, pursuant to California Code of Civil Procedure Section 1094.5.
A Santa Clara County Superior Court judge, indicating that the question of whether the First Amendment protected all Meinhardt’s speech was a “close call,” rejected Meinhardt’s petition and issued an “Order on Submitted Matter” upholding the discipline. Following the delayed entry of a judgment, which is the pleading that typically closes trial court proceedings, and after filing a notice of entry of judgment, Meinhardt filed a notice of appeal to the Sixth District of the California Courts of Appeal, which handles appeals of superior court decisions in Santa Clara County. Next, Meinhardt and the City fully briefed the appeal.
Then the fun started …
The parties received a letter from the Sixth Appellate District stating that, because it had too many cases, the appeal was being transferred to Division 1 of the Fourth Appellate District in San Diego. California appellate districts are divided into divisions of justices who typically hear cases together, sitting in three-justice panels. The panel assigned to Meinhardt’s case issued a letter to Meinhardt asking him to explain why his notice of appeal should be considered as filed in a timely manner.
Counsel for Meinhardt explained that his appeal was timely filed three weeks after the notice of entry of judgment was filed. Appellate rules allow a party 60 days to file an appeal from the date of notice of entry of a judgment. However, the panel was having none of it. After oral argument, which centered only on the timeliness of the appeal, not the merits, the panel rejected Meinhardt’s appeal as untimely. The panel ruled that Meinhardt should have appealed within 60 days of the order, not 60 days of the subsequent judgment. While the panel recognized that appellate rules provide for appeals within 60 days of notice of entry of judgment, it also cited a longstanding series of cases that have allowed appeals to be taken from orders that resolve the merits of a dispute without awaiting on a final judgment. To the panel, the fact that Meinhardt could have appealed from the order meant his 60-day clock started ticking then, not after the judgment was filed.
When the panel’s opinion was published, Meinhardt’s counsel received a flurry of calls from appellate practitioners across the state, criticizing the ruling. One of the callers was Michael Shipley, a Los Angeles civil procedure litigator at Kirkland & Ellis, one of the preeminent large law firms in the world. After bonding over their shared law school alma mater, Shipley said he felt so strongly about the error of the appellate court that he had secured permission from his firm to handle a petition for review to the California Supreme Court, asking the Supreme Court to accept the case on further appeal, and to handle the Supreme Court proceedings to seek to overturn the appellate ruling, if the petition was successful — all pro bono (i.e., for free).
Though the California Supreme Court only grants review of approximately 3% of the cases for which it receives petitions for review, it granted review in this matter. The case was further briefed on the limited issue of timeliness and argued before the Supreme Court in Los Angeles on June 5, 2024. And on July 29, the Supreme Court unanimously reversed the appellate court and ruled that Meinhardt’s appeal was indeed filed timely. It remanded (sent) the case back to Division 1 of the Fourth Appellate District to consider the merits of the case — i.e., Meinhardt’s arguments that the First Amendment protects his speech in his letter.
Back at the Fourth Appellate District, writing for a unanimous court, Justice Martin Jenkins used the ruling to resolve uncertainties that had arisen in case law over when the 60-day window to file an appeal begins. He began by noting that the right to appeal in California is completely controlled by statute, not case law, and that typically appeals are properly taken from judgments, not orders. Despite this, he acknowledged that courts, including the California Supreme Court, have previously allowed parties to appeal orders that, while not meeting the statutory requirements of being appealable, were dispositive of disputes. He explained that courts had allowed such appeals to preserve the right of parties to appeal who would otherwise have their appeals rejected on a technicality. However, the court was unwilling to allow that exception to swallow the statutory rule that appeals are from judgments: “[H]ere, the fact that an appellate court may preserve an appeal by deeming an order or other ruling to be a judgment does not necessarily mean the order or ruling is the judgment for all purposes, including commencing the time in which an appeal may be taken. It is in the context of preserving the right to appeal that we have stated that an order or other ruling constitutes a judgment. We are aware of no case of this court construing a court’s ruling to be a judgment for the purpose of dismissing an appeal as untimely — in administrative mandate proceedings or otherwise — and we decline to do so here” (Slip Op. at p. 13).
The court concluded that “the time to appeal in administrative mandate proceedings begins with the entry of ‘judgment’ or service of notice of entry of ‘judgment,’ not with the filing of an ‘order’ or other ruling” (Slip Op. at p. 14).
This ruling matters. Without it, practitioners seeking to appeal a decision issued in a writ matter would have felt conflicted over whether to appeal from an order that was potentially dispositive (but might be determined not to have been dispositive), appeal from a judgment (but risk a ruling like Meinhardt initially received that the writ was filed too late) or file both. Appealing from both may be safer, but it is also significantly more expensive and can make the appellate record chaotic.
The Supreme Court ruling brings clarity and allows Meinhardt to continue to pursue justice for his exercise of his First Amendment rights on behalf of his members. Huge appreciation for this win must go to Mike Shipley and his team at Kirkland & Ellis, who performed exceptionally, and to PORAC LDF, which was unhesitating in its support of Meinhardt despite the long and tortured journey.
Dave often joked that he would love to leave his mark with a “Meinhardt Rule.” Now he has it.
About the Author
Gregg Adam is a partner with the law firm Messing Adam & Jasmine LLP. Gregg has worked with peace officer associations for over 24 years. He is a founding partner of the firm, which represents public-sector unions and their members in labor relations. Gregg and his partners and the attorneys at Messing Adam & Jasmine LLP are PORAC LDF panel attorneys.