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Ninth U.S. Circuit Should Bow to State C.A.’s Interpretation of California Law—Bumatay
Panel Should Follow Lavin’s 2018 Opinion, Not Reinhardt’s 1994 Decision, Dissenter Says
By a MetNews Staff Writer
A judge of the Ninth U.S. Circuit Court of Appeals, in a dissent, has criticized the majority of a three-judge panel for applying a 29-year-old Ninth Circuit opinion interpreting a California statute rather than bowing to a more recent analysis of the law by the state’s intermediate appellate court.
Judge Patrick J. Bumatay was the dissenter and Judges Roopali H. Desai and Lucy H. Koh comprised the majority. Desai and Koh decided the appeal in a memorandum opinion.
At issue was the breadth of Code of Civil Procedure §352.1 which provides that where a would-be plaintiff in a civil action “is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.”
1994 Decision
On June 1, 1994, in Elliott v. City of Union City, the Ninth Circuit held that the statute does apply to pre-trial detainees; on March 21, 2018, Div. Three of California’s Court of Appeal for this district declared that it does not.
In Elliott, Judge Stephen R. Reinhardt (since deceased) wrote for a three-judge panel in declaring that “the purpose of disability statutes would be ill-served by creating an arbitrary distinction between pre- and post-arraignment incarceration,” holding that that under California’s applicable tolling statute (now §352.1), the one-year time bar on actions for excessive force was tolled from the moment of the plaintiff’s arrest. He wrote:
“In terms of limitations on the prisoner, continuous custody is the relevant disability. For tolling purposes, there is little difference between being incarcerated pre-arraignment, pre-conviction or post-conviction: none of these forms of custody affords the prisoner a change in status with regard to his disability. To hold that pre-conviction tolling does not continue post-conviction would be inconsistent with the policy behind the tolling statute.”
Reinhardt said in a footnote:
“Although the words ‘imprisoned’ might appear to refer to an actual prison, this reading of the statute would make it self-contradictory, since it refers to being held ‘on a criminal charge,’ i.e., prior to conviction.”
California Opinion
In Austin, Justice Luis Lavin said that the word “imprisoned” could be understood to connote incarceration in a state prison but might also reasonably be viewed as referring, more generally, to confinement in a jail, and that the term is ambiguous, as previous California opinions had observed. He therefore proceeded to conduct an extensive survey of legislative history to resolve the ambiguity.
In enacting the statute, Lavin concluded, “the Legislature was plainly focused on limiting the indefinite statutory tolling formerly granted to civilly dead state prison inmates,” now limited to two years. He added:
“There is no indication the Legislature, in so doing, intended to expand tolling to local inmates in pretrial custody. We hold, therefore, that a would-be plaintiff is ‘imprisoned on a criminal charge’ within the meaning of section 352.1 if he or she is serving a term of imprisonment in the state prison.”
Majority Opinion
Desai and Koh clung to Elliott in Tuesday’s decision, discounting Lavin’s opinion in Austin, saying that “[w]here, as here, there is no applicable California Supreme Court decision,” it is necessary to predict how the state’s highest court would interpret a California statute and that, while a Court of Appeal opinion is an indicator, it is not a definitive guide. They wrote:
“Convincing evidence exists that the California Supreme Court, in interpreting § 352.1(a), would not follow Austin. First, Austin’s reasoning contravened fundamental rules of statutory interpretation under California law.”
There is no ambiguity in the wording of the statute, they said, adopting Reinhardt’s reasoning that “imprisoned” includes confinement in a local facility.
Additionally, they said, Lavin ignored the impediments an incarcerated person faced in bringing a lawsuit and that the objective of statutes such as §352.1 was to remedy this, saying that Reinhardt’s opinion “took this purpose into account.”
Bumatay’s Dissent
Bumatay said in his dissent:
“We face an interesting question here. When considering a question of California law, do we follow our own precedent on the question even if it conflicts with a more recent interpretation of the law by a California intermediate appeal court? As a matter of comity and federalism, we ordinarily follow an appellate state court’s interpretation of state law. Because this case doesn’t present unusual circumstances. I would do so here.”
He remarked:
“And the California Court of Appeal’s decision was no drive-by opinion—it traces its analysis all the way to ancient Greece and to the English common law….Since then, at least one other California appellate court has approved of Austin’s analysis in an unpublished decision.”
(That was an Oct. 30, 2018 decision by Div. Three of this district’s Court of Appeal in People v. Cardoso. The opinion by Presiding Justice Lee Edmon, does not actually approve of the decision in Austin; an off-handed citation to it is preceded by “cf”—that is, “compare.”)
The judge noted that, under Ninth Circuit precedent, unless there is “ ‘convincing evidence’ that the California Supreme Court would reject an intermediate appellate court’s interpretation,” the Ninth Circuit is bound to apply it. He added:
“And we don’t reject a state court’s interpretation of state law lightly. For example, we’ve declined to follow a state court’s interpretation of state law when it was in ‘plain conflict’ with the decision of another state court….But when we have thought it highly likely that the highest state court would reject the intermediate court’s statutory interpretation, we certified the question rather than give preference to our own interpretation.”
Opinion Not Embraced
Bumatay specified that he is not embracing Lavin’s opinion, saying that “[e]ven if we have doubts about Austin,” it should be followed based on “principles of federalism and comity.” He elaborated:
“We do not stand as a court of error correction over state courts….And contrary to the majority’s view, this isn’t ‘abdication’; this is appropriate deference to state courts on a state law issue. Indeed, the majority offers no limiting principle to its aggrandized view of when we may overrule California intermediate appellate courts: if we disagree, then that’s enough. But that’s not what our precedent or Constitution requires.”
It was in footnote, as a rejoinder to the dissent, that the majority set forth the view that Bumatay would apparently wish the panel to “abdicate” its duty to prognosticate how the California Supreme Court would decide the issue. The majority said:
“Contrary to the dissent’s suggestion, comity and federalism do not mean abdication. Decisions of the California Court of Appeal bind neither other panels of that court nor us.”
It continued:
“Equally wrong is the dissent’s claim that we must defer to Austin even if it rests on a flawed statutory interpretation. Our court has squarely rejected that view.”
Civil Rights Suit
The decision affirms the denial by District Court Judge Morrison C. England Jr. of the Eastern District of California of a motion by Zachary Simmons, a correctional officer at the San Joaquin County Jail, to dismiss an action against him by Christal Mosteiro. In a civil rights suit, she contends that while a pre-trial detainee in 2015, Simmons sexually battered and harassed her.
She was released from state prison on July 19, 2018, and filed suit on April 4, 2019. Under Elliott, her action controls, her action is timely; under Austin controls, it would be time-barred.
The case is Mosteiro v. Simmons, 22-16780.
Desai was appointed by President Joe Biden, Bumatay was selected for the bench by President Donald Trump, and Koh is an appointee of President Barack Obama.
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