LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Workers’ Rights

Loder v. City of Glendale, 927 P.2d 1200 (1997), cert. denied, 522 U.S. 807 (Cal. 1997).

The City of Glendale created a drug and alcohol testing program for all new employees and all current employees who had been provisionally approved for promotion. The California Supreme Court declared the program to be constitutional under the U.S. Constitution with respect to new job applicants, but unconstitutional with respect to promotions of current employees. In coming to this conclusion, the court relied upon established Supreme Court precedent.

Justice Brown, however, dissented. She would have allowed the tests both for new job applicants and for current employees seeking promotion. In coming to her conclusion, Brown quite explicitly rejected binding Supreme Court precedent. She wrote: “In this case and others like it involving the interests of government solely as an employer and the surrender of a constitutional right as a condition of obtaining a mere benefit or ‘privilege,’ I would argue for a return to an earlier view, pungently expressed by Justice Holmes while a member of the Supreme Judicial Court of Massachusetts: ‘The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.’ 927 P.2d at 1257. In the next paragraph she admitted “that for many years Holmes’s view has been out of fashion.” Id. Nevertheless, Brown’s point was clear: she rejected the use of “balancing tests” – tests which balance the interests of one party (here the government) against the rights and interests of another party (here the city employees). Despite the Supreme Court precedent on point, she would have preferred a bright line rule allowing drug tests for all employees in order to avoid the judgement calls inherent in a balancing test. In her view the employee has a clear way to avoid the drug test – he or she can simply forgo the job or the promotion. Acknowledging that such a choice can be extremely difficult, Brown closes her opinion with the following sentence: “But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.” 927 P.2d at 1260. This opinion raises very serious concerns about Brown’s commitment to upholding settled law in both the workers’ rights context and many other areas of civil rights and civil liberties.

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Little v. Auto Stiegler, Inc., 63 P.3d 979 (Cal. 2003), petition for cert. filed, May 22, 2003, No.

Alexander Little was a service manager for Auto Stiegler, Inc. Little believed that he was first demoted and then fired for investigating and reporting fraud at the company related to warranties. As a result, he filed a lawsuit asserting various non-statutory claims under California common law, including a claim that he was terminated in violation of public policy. In the midst of Little’s case, the California Supreme Court decided a case called Armendariz v. Foundation Health Psychcare Services, Inc., which imposed certain minimum standards on arbitration agreements in some contexts where very important statutory rights were at issue. Little argued that even though he had signed an arbitration agreement and the rights he was seeking to vindicate were not statutory, arbitration should not be compelled in his case because the arbitration agreements he had signed were unconscionable and did not meet the standards set forth in Armendariz.

The trial court agreed with Little and Auto Stiegler appealed. The appeals court reversed, finding that the arbitration agreement was not unconscionable and that Armendariz did not apply to non-statutory claims. Finally the California Supreme Court heard the case. A majority of the court decided that a part of the arbitration agreement limiting awards to $50,000 was unconscionable because it only benefitted the employer. Still, the court held that the rest of the arbitration agreement could stand alone. The court then went on to find that the minimum standards set forth in Armendariz did apply to a claim by an employee that he or she had been fired against public policy. For this reason, the Court held that Little could only be compelled to arbitrate his claim if the employer paid the unique costs of arbitration in order to ensure that Little’s rights to pursue his claim could not be foiled by prohibitively expensive arbitration.

Justice Brown and one other justice dissented. They argued that the Armendariz minimum requirements should not apply to Little’s claim that he had been fired contrary to public policy. In her opinion, Brown accuses the majority of “specious” logic and argues strenuously that the court should not take steps to undermine federal and California policies favoring arbitration. 63 P.3d at 998-99. Brown’s argument essentially ignores the fundamental purpose of the judiciary to ensure that statutes of general application are not interpreted in a specific case in such a way that prevents a just and fair result.

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