Petition for Writ of Certiorari — Francisco Negrete, et al., Petitioners v. City of Oakland, California, et al.

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------FRANCISCO NEGRETE, WILLIAM BERGER,

BRANDON HRAIZ, CRAIG TANAKA

AND JOSEF PHILLIPS,

v.

Petitioners,

CITY OF OAKLAND AND THE POLICE

COMMISSION OF THE CITY OF OAKLAND,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------HARRY S. STERN

MICHAEL A. MORGUESS

ZACHERY A. LOPES*

RAINS LUCIA STERN

ST. PHALLE & SILVER, PC

220 Montgomery Street, 15th Floor

San Francisco, CA 94104

Tel: 415.341.9341

ZLopes@RLSlawyers.com

*Counsel of Record

Attorneys for Petitioners

Francisco Negrete, William Berger,

Brandon Hraiz, Craig Tanaka

and Josef Phillips

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1.

Pursuant to this Court’s decisions in Grable &

Sons Metal Products, Inc. v. Darue Engineering &

Mfg., 545 U.S. 308, 314 (2005) and Gunn v. Minton,

568 U.S. 251, 258 (2013), do the federal courts have

subject matter jurisdiction over a state law claim

that “inevitably” requires the resolution of a direct

conflict between state law and a federal consent

decree?

2.

Where a local government is mandated by state

law to comply with the terms of its charter, as

amended by the voters pursuant to their state constitutional right to order their municipal affairs, is

compliance excused by conflicting terms of a settlement agreement between the local government

and a private litigant, where that settlement agreement is entered as a federal district court order?

3.

Are the terms of a local government charter, endowed by the state constitution as having “the

force and effect of [state] legislative enactments,”

superseded by a settlement agreement between

the local government and a private litigant, where

that settlement agreement is entered as a federal

district court order, and there has been no adjudication of the private litigants’ claims?

4.

May a federal court suspend operation of a local

government charter, in furtherance of implementing a settlement agreement between the local government entity and private litigants, where there

has been no adjudication of the private litigants’

claims?

ii

PARTIES TO THE PROCEEDING

Petitioners Francisco Negrete, William Berger,

Brandon Hraiz, Craig Tanaka and Josef Phillips –

peace officers employed by the City of Oakland – were

the petitioners in the district court proceedings and appellants in the court of appeals proceedings. Respondents City of Oakland and the Police Commission of the

City of Oakland were respondents in the district court

proceedings and appellees in the court of appeals proceedings.

RELATED CASES

•

Negrete, et al. v. City of Oakland, et al., Alameda

County Superior Court Case No. RG19030784.

Removed to the U.S. District Court, Northern

District of California, on September 18, 2019.

•

Negrete, et al. v. City of Oakland, et al., No. 19cv-05742, U.S. District Court, Northern District of California. Judgment entered June 12,

2020.

•

Negrete, et al. v. City of Oakland, et al., No. 2016244, U.S. Court of Appeals for the Ninth Circuit. Judgment entered August 19, 2022.

•

Negrete, et al. v. City of Oakland, et al., No. 2016244, U.S. Court of Appeals for the Ninth Circuit. Judgment entered September 27, 2022.

•

Negrete, et al. v. City of Oakland, Alameda

County Superior Court Case No. RG21099122,

April 13, 2022.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

ii

RELATED CASES ...............................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

vi

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED...........................................

2

INTRODUCTION AND STATEMENT OF THE

CASE ................................................................

2

REASONS FOR GRANTING THE PETITION ... 11

I.

Determining the Continuing Validity of a

Federal Consent Decree and Related Orders is a Matter Squarely Within the Purview of the Federal Courts ........................ 11

A. The Federal Issues Presented Constitute Essential Elements of the Officers’ Claims ........................................... 12

B. The Ninth Circuit Panel Overstates

the Limits of Grable ............................ 13

C. The Federal Issues Presented Are

“Substantial” and Should Be Resolved

in a Federal Court ............................... 15

iv

TABLE OF CONTENTS – Continued

Page

II.

The Ninth Circuit’s Erroneous Refusal to

Assert Jurisdiction Sanctioned the District Court’s Unprecedented Assertion of

Federal Power Over Local Municipal Affairs – Without an Adjudicated Finding of

a Violation of Federal Law ........................ 17

A. The District Court’s Finding That the

Consent Decree and Associated Orders

Supersede the City’s Charter Conflicts

with Clearly Established California Supreme Court Precedent ........................ 19

B. The District Court’s Finding That the

Consent Decree and Associated Orders Supersede the City’s Charter Decided an Important Federal Question

in a Way That Conflicts with This

Court’s Precedent ................................ 20

C. The District Court’s Ruling Represents

an Unprecedented Intrusion Into Local Government ................................... 21

CONCLUSION..................................................... 24

APPENDIX

Opinion, United States Court of Appeals for the

Ninth Circuit (August 19, 2022) ...................... App. 1

Order on Cross-Motions for Judgment on the

Pleadings, United States District Court, Northern District of CA (June 12, 2020) ................. App. 25

v

TABLE OF CONTENTS – Continued

Page

Memo re Officer Involved Shooting of Joshua

Ryan Pawlik, IAD and CPRA Case No. 180249, City of Oakland, Police Commission

(July 9, 2019; Amended July 15, 2019) .......... App. 48

Order re Compliance Director, United States

District Court, Northern District of CA (December 12, 2012) ............................................ App. 60

Order, United States Court of Appeals for the

Ninth Circuit (September 27, 2022) .............. App. 73

Settlement Agreement re Pattern and Practice

Claims, United States District Court, Northern District of CA (December 12, 2012) ........ App. 74

vi

TABLE OF AUTHORITIES

Page

CASES

Baccus v. Parrish, 45 F.3d 958 (5th Cir. 1995) ...........13

Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

489 U.S. 141 (1989) .................................................16

Collins v. Thompson, 679 F.2d 168 (9th Cir. 1982) .........6

Creighton v. City of Santa Monica, 160 Cal.App.3d

1011 (1984) ........................................................ 17, 21

Delphine Allen, et al. v. City of Oakland, et al.,

U.S.D.C. for the Northern District of California, Case No. 00-04599................................ 2, 6, 7, 22

Domar Electric, Inc. v. City of Los Angeles, 9

Cal.4th 161 (1994) ................................. 17, 18, 19, 21

Energy Mgmt. Servs., LLC v. City of Alexandria,

739 F.3d 255 (5th Cir. 2014) ....................................13

Grable & Sons Metal Prods. v. Darue Eng’g &

Mfg., 545 U.S. 308 (2005) ................................ passim

Gunn v. Minton, 568 U.S. 251 (2013) ................. passim

Harman v. City and County of San Francisco, 7

Cal.3d 150 (1972) ......................................................6

Hudson v. County of Los Angeles, 232 Cal.App.4th

392 (2014) ................................................................12

Irving Trust Co. v. Day, 314 U.S. 556 (1942) ................6

Kavanaugh v. West Sonoma County Union High

School, 29 Cal.4th 911 (2003) .................................12

vii

TABLE OF AUTHORITIES – Continued

Page

Local No. 93, Intern. Ass’n of Firefighters, AFLCIO C.L.C. v. City of Cleveland, 478 U.S. 501

(1986) ............................................................. 6, 20, 21

MacLeod v. Long, 110 Cal.App. 334 (1930) .......... 12, 13

Milliken v. Bradley, 418 U.S. 717 (1974) ....................22

Negrete, et al. v. City of Oakland, et al., 46 F.4th

811 (9th Cir. 2022) .....................................................1

Paulson v. City of San Diego, 294 F.3d 1124 (9th

Cir. 2002) .................................................................19

Poulos v. New Hampshire, 345 U.S. 395 (1993) .........19

Rizzo v. Goode, 423 U.S. 362 (1976) ...................... 22, 23

Scott v. Common Council, 44 Cal.App.4th 684

(1996) .......................................................................19

Smith v. Kansas City Title & Trust Co., 255 U.S.

180 (2021) ................................................................15

Syngenta Crop. Prot., Inc. v. Henson, 537 U.S. 28

(2002) ................................................................. 13, 14

Taylor v. Crane, 24 Cal.3d 442 (1979) ........................16

Tiedje v. Aluminum Taper Mill. Co., 46 Cal.2d

450 (1956) ................................................................20

United States v. ITT Continental Baking Co.,

420 U.S. 223 (1975) ....................................... 6, 20, 21

STATUTES AND RULES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1331 ............................................................2

viii

TABLE OF AUTHORITIES – Continued

Page

28 U.S.C. § 1441(a) ........................................................6

28 U.S.C. § 1651(a) ......................................................14

Cal. Civ. Code § 1441 .............................................. 6, 20

Cal. Code Civ. Proc. § 1085 ..................................... 6, 12

Cal. Code Civ. Proc. § 1060 ...........................................6

Oakland, Cal., Charter, amend. Measure LL

(2018) ............................................................... passim

Sup. Ct. R. 10(a) ..........................................................19

Sup. Ct. R. 10(c) .................................................... 19, 21

OTHER AUTHORITIES

Reason in Law, Lief H. Carter & Thomas F.

Burke, Ninth Ed., The University of Chicago

Press, 2016 ..............................................................10

CONSTITUTIONAL PROVISIONS

Cal. Const., art. XI, § 3(a) ....................................... 4, 17

1

PETITION FOR A WRIT OF CERTIORARI

Francisco Negrete, William Berger, Brandon Hraiz,

Craig Tanaka and Josef Phillips (“Petitioners” or “Officers”) petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at Negrete,

et al. v. City of Oakland, et al., 46 F.4th 811 (9th Cir.

2022) and reproduced at App. 1-24. The Ninth Circuit’s

denial of petitioners’ motion for rehearing en banc is

reproduced at App. 73. The District Court’s Order on

Cross-Motions for Judgment on the Pleadings is reproduced at App. 25-47.

---------------------------------♦---------------------------------

JURISDICTION

The Ninth Circuit entered judgment on August 19,

2022. App. 1. The Ninth Circuit denied a timely petition for rehearing en banc on September 27, 2022. App.

73. Accordingly, this Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

---------------------------------♦---------------------------------

2

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves interpretation and application

of the federal court’s subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

---------------------------------♦---------------------------------

INTRODUCTION AND

STATEMENT OF THE CASE

The underlying substantive issue presented in

this case impacts every local government entity in the

United States governed by charter: whether a local

government’s state-law mandated compliance with its

charter is excused by conflicting terms of a settlement

agreement between the local government entity and a

private litigant, when that agreement is entered as a

district court-ordered “consent decree.”

The Ninth Circuit panel majority vacated the District Court’s judgment for lack of subject matter jurisdiction, thereby refusing to resolve the important

underlying substantive legal issues, with instruction

to remand the case to state court to determine the legal

authority of existing federal district court orders imposing obligations on a local government entity in direct conflict with well-established state law. In so

doing, the Ninth Circuit failed to articulate the limits

on the federal judiciary’s reach into municipal matters

reserved to state and local governments in the absence

of an adjudicated violation of federal law.

3

The district court orders at issue in this case implemented a “consent decree” by way of settlement

agreement between two litigants, the City of Oakland

(“City”) and the plaintiffs of Delphine Allen, et al. v.

City of Oakland, et al., U.S.D.C. for the Northern District of California, Case No. 00-04599 (“Allen”).1 The

Allen plaintiffs’ allegations were never adjudicated.

There are no judicial findings of City liability, and the

City – to the present day – denies the Allen plaintiffs’

allegations of wrongdoing. App. 83 [“Nothing in this

agreement . . . shall be construed as an admission of

liability or evidence of liability under any federal, state

or local law”].

In late 2012, the City and Allen plaintiffs settled a

motion to place the City’s Police Department into federal receivership, by (in part) agreeing to the appointment of a “compliance director” to facilitate the City’s

compliance with its obligations under the consent decree. That settlement agreement was entered as an

order of the District Court on December 12, 2012 (“December 2012 Order”). App. 60-72. In pertinent part, the

December 2012 Order empowers the compliance director to direct disciplinary decisions by the Department.

App. 67-68.

Four years after the District Court’s December

2012 Order conferred disciplinary authority on the

Relevant portions of the consent decree – or “Negotiated Settlement Agreement” – are reproduced at App. 75-115. Its general

purpose is to facilitate the Police Department’s implementation

and maintenance of contemporary nationwide police practices.

App. 82-85.

1

4

compliance director, the City of Oakland’s voters overwhelmingly approved Measure LL with 83.19% in favor of the measure.2 Measure LL amended the City’s

Charter by setting forth a detailed procedure for the

investigation of alleged policy violations and disciplinary decision-making procedures for City police officers.3 As amended, the Charter expressly limits the

authority to make final disciplinary decisions to only

the Chief of Police or, in specified circumstances, the

City’s Police Commission. Thus, the Charter as amended

directly conflicts with the compliance director’s disciplinary authority as set forth in the consent decree’s

December 2012 Order; indeed, it supplants that authority.4

https://www.oaklandca.gov/resources/learn-more-aboutmeasure-ll.

3

Cal. Const. art. XI, § 3(a) [“For its own government, a

county or city may adopt a charter by majority vote of its electors

voting on the question . . . A charter may be amended, revised, or

repealed in the same manner. A charter, amendment, revision, or

repeal thereof shall be published in the official state statutes.

County charters adopted pursuant to this section shall supersede

any existing charter and all laws inconsistent therewith. The provisions of a charter are the law of the State and have the force

and effect of legislative enactments”].

4

For final disciplinary determinations, the City’s Charter (as

amended) establishes a bifurcated process. If the Police Commission’s investigative agency agrees with the Chief of Police’s investigatory findings and proposed discipline, the process is complete,

and the Chief of Police notifies the subject officer(s) of the disposition. But if the investigative agency disagrees with the Chief of

Police’s investigatory findings and/or proposed discipline, the final determination is made by a Discipline Committee comprised

of three Police Commission members. In this way, the Charter

places a “check” – so to speak – on the Chief of Police’s disciplinary

2

5

In March of 2018, Petitioners (hereinafter also referred to as “Officers”) were involved in an on-duty use

of force incident resulting in the death of a suspect. Six

separate investigations of the Officers’ conduct were

commenced, by three separate entities.5 All six unanimously concluded the Officers’ force was objectively

reasonable and lawful, and otherwise complied with

Department policy. Accordingly, under Measure LL’s

amendments to the Charter, the Chief of Police’s determination that no discipline was warranted was final.

However, a committee of the City’s Police Commission

moved to terminate the Officers’ employment, with reliance on the compliance director’s outlier finding that

the Officers used neither reasonable nor lawful force.

In direct contravention of the City’s Charter, the Commission’s committee asserted that the compliance director’s determination “stand[s] in the place of ” the

Chief of Police’s.

decision-making. The Charter provides no role for, nor mentions,

the consent decree’s compliance director. App. 11-12.

5

These investigations were conducted by the Department’s

criminal investigation division, internal affairs division, and “executive force review board,” the Department’s Chief of Police,

the Police Commission’s investigative agency (Community Police

Review Agency), and the Alameda County District Attorney’s

Office. Subsequently, in a separate state superior court action, the

City was compelled to abide by the determination of an administrative hearing officer to overturn the Officers’ terminations and

reinstate their employment – the seventh independent review to

conclude that the Officers’ force did not violate Department policy.

(Francisco Negrete, et al. v. City of Oakland, Alameda County Superior Court Case No. RG21099122, peremptory writ of mandamus dated April 13, 2022.)

6

The Officers sued in state superior court, by way

of a petition for writ of mandate pursuant to California

Code of Civil Procedure section 1085, and declaratory

relief pursuant to California Code of Civil Procedure

section 1060, seeking to compel the City’s compliance

with the Charter. The City removed the case to the District Court, 28 U.S.C. section 1441(a), asserting that

the Officers’ suit “seeks to attack or undermine an order of a federal district court.” The District Court

thereafter ruled that the case was related to the Allen

matter.

The parties filed cross-motions for judgment on

the pleadings. The Officers’ arguments were based on

this Court’s precedent. This Court has stated that the

legal force of a consent decree is founded upon a party’s

lawful ability to consent to its terms. Local No. 93, Intern. Ass’n of Firefighters, AFL-CIO C.L.C. v. City of

Cleveland, 478 U.S. 501, 522-523, 525 (1986). This follows from the principle that consent decrees are construed as contracts under the law of the situs state.

United States v. ITT Continental Baking Co., 420 U.S.

223, 237 (1975); Irving Trust Co. v. Day, 314 U.S. 556,

561 (1942); Collins v. Thompson, 679 F.2d 168, 170 (9th

Cir. 1982). And crucially, under California law, the City

cannot lawfully consent to terms which require it to

act in violation of its Charter. Harman v. City and

County of San Francisco, 7 Cal.3d 150 (1972); Cal. Civ.

Code § 1441.6 Because the terms of the consent decree

California Civil Code section 1441 [“A condition in a contract, the fulfillment of which is impossible or unlawful, within

the meaning of the article on the object of contracts, or which is

6

7

purporting to vest disciplinary authority in the compliance director contravene the Charter provision vesting

that authority in the Chief of Police, those terms of the

consent decree must yield to the controlling Charter

provisions.

The City claimed it was bound by the terms of the

consent decree (specifically the December 2012 Order)

such that it could not comply with its Charter, at risk

of being in contempt of the District Court’s December

12, 2012 Order.

The District Court issued an order on June 12,

2020 (“June 2020 Order”), granting the City’s motion

and denying the Officers’ cross-motion. App. 25-47. The

District Court’s order acknowledged the consent decree and December 2012 Order derive from contractual

agreements between the City and Allen plaintiffs, and

accepted the Officers’ interpretation of the plain language of the City’s Charter. App. 26-29, 31-32. However,

the District Court found the City properly “delegated”

the Chief of Police’s Charter-derived duties to the compliance director by way of the December 2012 Order –

thereby implicitly suspending operation of the voters’

amendments to the City’s Charter for the duration of

the consent decree. The Officers appealed to the Ninth

Circuit.

repugnant to the nature of the interest created by the contract, is

void”].

8

The Ninth Circuit panel’s majority declined to

reach the merits of the case7, leaving the fate of the

federal consent decree’s terms, including the continuing validity of the District Court’s December 2012 Order, to be decided by a state court instead of the federal

District Court that issued the order. The majority held

the court lacked subject matter jurisdiction under both

branches of federal question jurisdiction. App. 14-22.

First, the majority found it lacked subject matter jurisdiction under the federal cause of action branch because the Officers alleged only state law causes of

action. App. 14-17. Second, and most pertinent for this

Petition, the majority found there was no substantial

federal question giving rise to subject matter jurisdiction, because the Officers’ claims do not “necessarily”

raise a federal issue. App. 18-22; Grable & Sons Metal

Prods. v. Darue Eng’g & Mfg., 545 U.S. 308, 310 (2005)

(“Grable”).

The majority recognized that “the potential” federal issue involving the question of how to resolve the

conflict between the consent decree and City’s Charter

was “inevitable” to resolve the Officers’ claims. App. 19.

The majority determined that resolving this conflict

between the consent decree and state law was not

“necessarily raised” because it is not “an essential

Oral argument was held on May 10, 2021. On October 19,

2021, the Ninth Circuit directed the parties to file supplemental

briefing “addressing whether the court has subject matter jurisdiction over [the] case.” No party up to that point contended federal

subject matter jurisdiction was improper. In their supplemental

briefing, the parties agreed that the court had subject matter jurisdiction.

7

9

element” of the Officers’ claims. “At most,” the majority

stated, the conflict “is a federal issue that may arise as

a potential defense” to the City’s non-compliance with

its Charter. App. 19-20 [“Although this question would

inevitably arise in this case and may involve a federal

issue, it is not an issue that is necessarily raised within

the meaning of Grable”].

Judge Rakoff 8 dissented, finding the Officers’

claims “plainly” present a federal issue that is “essential” and “necessarily raised,” noting that “[i]n order to

prevail on their claims, the [O]fficers must establish

that the federal consent decree did not obligate the

City to adopt the procedure it did.” App. 23. Thus,

“[d]etermining the scope and meaning of the federal

consent decree is [ ] necessary to decide this case.” App.

24. The Officers’ petition for rehearing en banc was rejected. App. 73.

The dissent got it right. The federal courts have

subject matter jurisdiction over the Officers’ claims,

and the significant legal issues presented should be resolved in a federal court. Remanding the case to state

court to determine the continuing validity of the consent decree and related orders in light of this Court’s

precedent is not appropriate. It is a matter uniquely

appropriate for resolution in the federal courts.

Moreover, the District Court’s assertion of federal judicial interference in this case over the will of

the City’s electorate is unprecedented and must be

The Honorable Jed S. Rakoff, United States District Judge

for the Southern District of New York, sitting by designation.

8

10

definitively rejected by this Court. The District Court’s

judgment represents a de facto suspension of the City’s

Charter – a local constitution having the force and effect of a state legislative enactment – without an adjudicated finding of a violation of federal law. Not only

does this represent judicial overreach, it usurps the

State’s residents’ state constitutional right to order

their municipal affairs of a core local-government function without unjustified intrusion by the federal government. Doing so with no legal justification, or even

an acknowledgment that such intrusion has occurred,

erodes the public’s trust in the federal judiciary’s capacity to fairly and effectively resolve legal disputes.9

---------------------------------♦---------------------------------

“[S]ocial practices like judging either flourish or decay from

within. When judges treasure the craft of legal reasoning and celebrate those who do it excellently, the practice of judging is

strengthened, and other forms of ordering, based on partisanship

or favoritism, are displaced. When the craft of good legal reasoning is diminished, cynicism grows, morale suffers, and other

forms of ordering gain sway. These effects diffuse from the judges

to the lawyers who follow their cues, and from the lawyers to

members of the public who consult them.” Reason in Law, Lief H.

Carter & Thomas F. Burke, Ninth Ed., The University of Chicago

Press, 2016, p. 214.

9

11

REASONS FOR GRANTING THE PETITION

I.

Determining the Continuing Validity of a

Federal Consent Decree and Related Orders is a Matter Squarely Within the Purview of the Federal Courts.

“[F]ederal jurisdiction over a state law claim will

lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federalstate balance approved by Congress.” Gunn v. Minton,

568 U.S. 251, 258 (2013). “Where all four of these requirements are met . . . jurisdiction is proper because

there is a ‘serious federal interest in claiming the advantages thought to be inherent in a federal forum,’

which can be vindicated without disrupting Congress’s

intended division of labor between state and federal

courts.” Id.

Although the federal consent decree sits squarely

in the middle of Petitioners’ claims and the City’s defense, a majority of the Ninth Circuit panel determined

the Officers’ action “does not necessarily raise a federal

issue in the way” required by Grable, supra, because it

exclusively asserts state law claims, and the federal issues presented are not “essential elements” of those

claims. This misconstrues both the nature of the Officers’ claims, and this Court’s precedent subsequent to

Grable.

12

A. The Federal Issues Presented Constitute Essential Elements of the Officers’

Claims.

Demonstrating that the City’s compliance with

the Charter is mandated – in contravention of the December 2012 Order – is an “essential element” of the

Officers’ traditional mandamus claim.

To prevail on their mandamus claim, the Officers

must prove the City has a clear, present and ministerial duty to act in a particular manner under the Charter. See, Cal. Code Civ. Proc. § 1085; MacLeod v. Long,

110 Cal.App. 334, 339 (1930) (issuance of mandamus

“predicated upon the existence of a duty on the part of

defendants to perform an act concerning which they

have no right to refuse . . . The burden is, therefore,

upon the plaintiff to prove the existence of such right

rather than upon the defendants to disprove the

same”) (emphasis added). “The showing required to

be entitled to mandate is that the public agency has a

clear, present, and ministerial duty to afford the relief

sought, and that the petitioner has a clear, present,

and beneficial right to performance of that duty. [citations omitted]” Hudson v. County of Los Angeles, 232

Cal.App.4th 392, 408 (2014). An act is ministerial

when a public officer is required to perform it in a prescribed manner when a given state of facts exists.

Kavanaugh v. West Sonoma County Union High

School, 29 Cal.4th 911, 916 (2003).

In this case, the Officers must demonstrate that

the City has “no right to refuse” to comply with its

13

Charter. MacLeod, supra. As correctly noted by Judge

Rakoff ’s dissent, resolution of this issue is necessarily

raised by the Officers’ claims:

In order to prevail on their claims, the [O]fficers must establish that the federal consent decree did not obligate the City to adopt the

procedure it did. (citation omitted) Without

doing so, the officers are not entitled to relief

directing the City to comply with a given procedure under state law.

Determining the scope and meaning of the

federal consent decree is thus necessary to decide this case. App. 23-24.

This issue “is the central point of dispute” in the

case. Gunn, supra, 568 U.S. at 259. Both the panel majority and dissent acknowledge the issue is “inevitable.” If the issue is “inevitable,” it cannot “at most”

constitute a “potential defense.”

B. The Ninth Circuit Panel Overstates the

Limits of Grable.

The Panel majority dismisses the Fifth Circuit’s

decision in Baccus v. Parrish, 45 F.3d 958 (5th Cir.

1995) because it is not binding in this circuit and was

decided prior to Grable. The Panel majority also inferred that it conflicts with this Court’s decision in

Syngenta Crop. Prot., Inc. v. Henson, 537 U.S. 28 (2002)

(“Syngenta”). App. 16.

However, whether the bare holding of Baccus itself

“is still good law” (Energy Mgmt. Servs., LLC v. City

14

of Alexandria, 739 F.3d 255, 261 (5th Cir. 2014)) is irrelevant. No case has held that under circumstances

meeting Grable’s test, as clarified in Gunn (545 U.S. at

258), the import of a federal consent decree on a plaintiff ’s state law claims may never suffice for subject

matter jurisdiction under the substantial federal question branch.

Nor has Syngenta closed the door on such a scenario. In Syngenta this Court addressed whether the

All Writs Act, 28 U.S.C. section 1651(a), itself vests federal courts with authority to exercise removal jurisdiction where a party sought to prevent a state court

litigant from bringing an action the removal party

claimed was required to be dismissed pursuant to a

settlement agreement reached in a federal action. Syngenta, 537 U.S. at 31-33. Relevant here, this Court held

only that the All Writs Act was not sufficient, on its

own, for removal – it held the courts must have original

jurisdiction over an action for removal and that the All

Writs Act “is not a substitute for that requirement.” Id.

537 U.S. at 34.

Pre-dating Grable and its progeny, Syngenta did

not require this Court to address, nor does it appear

that this Court considered, whether the court otherwise would have had jurisdiction under the “substantial federal question” branch.

15

C. The Federal Issues Presented Are “Substantial” and Should Be Resolved in a

Federal Court.

Perhaps most importantly, the federal issues presented by this case meet the requirements that they

be “substantial” and “capable of resolution in federal

court without disrupting the federal-state balance approved by Congress.” Grable, supra, 545 U.S. at 313314. The “substantiality inquiry under Grable” is not

limited to the significance of the federal issue to the

particular parties. Rather it “looks instead to the importance of the issue to the federal system as a whole.”

Gunn, supra, 568 U.S. at 260.

In Grable, this Court focused on the broad significance of property seizure notices issued by the Internal Revenue Service, emphasizing the government’s

“ ‘strong interest’ ” in being able to recover delinquent

taxes through seizure and sale of property; it was the

government’s “direct interest in the availability of a

federal forum to vindicate its own administrative action” that made the federal question in that case one

that “ ‘sensibly belong[ed] in federal court.’ ” Gunn, supra, 568 at 260-261, quoting Grable, 545 U.S. at 315. In

Smith v. Kansas City Title & Trust Co., 255 U.S. 180

(2021), this Court found that the plaintiff ’s state claim

that a bank could not purchase certain federal bonds

arose under federal law because the decision turned

upon whether the government “securities were issued

under an unconstitutional law, and hence of no validity.” Smith, 255 U.S. at 201.

16

Similarly here, the federal issue is significant to

the government’s interest because it implicates the

continuing validity of a federal consent decree existing

in direct conflict with express provisions of a city charter duly constituted under state law. See, e.g., Taylor v.

Crane, 24 Cal.3d 442, 450 (1979). Surely the government interest in the effect and administration of a federal consent decree of a District Court makes the

federal question on which this litigation turns “an important issue of federal law that sensibly belong[s] in

a federal court.” Grable, 545 U.S. at 315. This would

appear essential to the “development of a uniform body

of ” law addressing the interplay of state and federal

law at issue here. Bonito Boats, Inc. v. Thunder Craft

Boats, Inc., 489 U.S. 141, 162 (1989).

And for the same reasons this case meets Grable’s

fourth requirement, concerned with the appropriate

“balance of federal and state judicial responsibilities.”

Grable, supra, 545 U.S. at 314. At bottom, this case does

not concern so much whether the City is complying

with the terms of its Charter – it is not – but whether

the “federal consent decree did [or did not] obligate the

City to adopt the procedure” to which the Officers object. App. 23.

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II.

The Ninth Circuit’s Erroneous Refusal to

Assert Jurisdiction Sanctioned the District Court’s Unprecedented Assertion of

Federal Power Over Local Municipal Affairs – Without an Adjudicated Finding of

a Violation of Federal Law.

The City’s residents have a state constitutional

right to self-governance of their municipal affairs by

enacting, and amending from time to time, the City’s

Charter. Cal. Const., art. XI, § 3(a). They exercised this

constitutional right by adopting Measure LL and

amending the City’s Charter.

The Charter is the City’s local constitution, its provisions comprising the “supreme organic law” of the

City. Creighton v. City of Santa Monica, 160 Cal.App.3d

1011, 1017 (1984). The Charter’s provisions also constitute state law, and may only be superseded by

conflicting provisions of the federal and state Constitutions and preemptive state law. Cal. Const., art. XI,

§ 3(a) [“The provisions of a charter are the law of the

State and have the force and effect of legislative enactments”]; Domar Electric, Inc. v. City of Los Angeles, 9

Cal.4th 161, 170 (1994).

Measure LL’s amendment to the City’s Charter

establishes public oversight of the Police Department, and specifically oversight of the Chief of Police’s

disciplinary determinations. One of the amendment’s

central public oversight mechanisms is the explicit

identification of the Chief of Police as the disciplinary decision-maker. The Chief of Police’s disciplinary

18

determinations, in turn, are subject to review by a separate and independent investigatory agency overseen

by a citizen body, the City’s Police Commission. If the

Chief of Police’s disciplinary determinations are confirmed – for lack of a better term – by that separate

and independent investigative inquiry, the public is

provided assurance that the Chief of Police made the

right decision, thereby encouraging the public’s confidence in the decisions of its Police Department’s most

visible public official.

In rejecting the Officers’ claims, the District Court

did not identify conflicting provisions of the federal or

state Constitutions or preemptive state law. Domar

Electric, Inc., supra. In fact, it did not even attempt to

do so. Instead, the District Court found that the City

properly “delegated” the Chief of Police’s Charter-derived duties to the compliance director by way of the

December 2012 Order.10 The District Court’s order is

problematic for three reasons relevant to this Petition.

“The City reasonably understood that its agreed-to delegation of the Chief of Police’s final decision-making authority in this

instance, to the Compliance Director acting in the shoes of the

Chief was not in conflict with [the Charter] during the duration

of this court’s supervision of OPD pursuant to the [consent decree]

and subsequent Orders.” App. 45.

10

19

A. The District Court’s Finding That the

Consent Decree and Associated Orders

Supersede the City’s Charter Conflicts

with Clearly Established California Supreme Court Precedent.

The District Court was bound to follow the decisions of the state’s highest court when construing the

legal authority of the Charter’s provisions. Poulos v.

New Hampshire, 345 U.S. 395, 402 (1993); Paulson v.

City of San Diego, 294 F.3d 1124, 1128 (9th Cir. 2002).

Its failure to identify conflicting provisions of the

federal or state Constitutions or preemptive state law

violates the California Supreme Court’s clearly established precedent on this issue. Domar Electric, Inc.,

supra.

Similarly, and in light of the supremacy of Charter

provisions established by state law, the District Court’s

finding that the City properly “delegated” the Chief

of Police’s Charter-derived authorities also violates

clearly established state law. Scott v. Common Council,

44 Cal.App.4th 684, 695 (1996) (“[T]he city council cannot relieve a charter officer of the city from the duties

devolving upon him by the charter . . . ”)

As such, the District Court’s finding that the consent decree and its associated orders supersede the

City’s Charter – by “delegation” or otherwise – decided

an important federal question in a way that conflicts

with a state court of last resort and relevant decisions

of this Court. Sup. Ct. R. 10(a), (c).

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B. The District Court’s Finding That the

Consent Decree and Associated Orders

Supersede the City’s Charter Decided

an Important Federal Question in a

Way That Conflicts with This Court’s

Precedent.

The District Court’s order refused to acknowledge,

let alone apply, this Court’s precedent concerning the

construction of federal consent decrees. This Court has

stated that the legal force of a consent decree is

founded upon a party’s lawful ability to consent to its

terms. Local No. 93, Intern. Ass’n of Firefighters, AFLCIO C.L.C. v. City of Cleveland, 478 U.S. 501, 522-523,

525 (1986) [For a consent decree, “it is the parties’

agreement that serves as the source of the court’s authority to enter any judgment at all”]. This follows

from the principle that consent decrees are construed

as contracts under the law of the situs state. United

States v. ITT Continental Baking Co., 420 U.S. 223, 237

(1975) (“a consent decree or order is to be construed for

enforcement purposes basically as a contract”).

As applied to the Officers’ claims, this means that

the consent decree and its associated orders – including the December 2012 Order – cannot supersede the

City’s Charter, because the City does not have the lawful authority to agree to terms which require it to act

in violation of its Charter. Cal. Civ. Code § 1441 (“A

condition in a contract, the fulfillment of which is

impossible or unlawful [ ] or which is repugnant to the

nature of the interest created by the contract, is void”);

Tiedje v. Aluminum Taper Mill. Co., 46 Cal.2d 450,

21

453-454 (1956) (contractual agreements made “against

the express mandate of a statute may not serve as the

foundation of any action, either in law or equity”).

Stated another way, the City cannot agree to violate its “local constitution.” Creighton, supra, 160

Cal.App.3d 1011, 1017 [a charter is “the equivalent of

a local constitution”]. And, any act taken by the City in

violation of its Charter is void. Domar Electric, supra,

9 Cal.4th at 171 (“[a]ny act that is violative of or not in

compliance with the charter is void”).

The District Court’s ruling, in effect, elevates the

consent decree above conflicting terms of the City’s

Charter. The District Court arrived at this conclusion

by failing to adhere to this Court’s precedent that consent decrees must be construed as contracts.

Accordingly, the District Court decided an important question of federal law – the continuing validity of the consent decree’s terms subsequent to the

City’s voters’ amendment of their Charter – in a manner that conflicts with this Court’s decisions in Local

No. 93, supra, and ITT Continental Baking Co., supra.

Sup. Ct. R. 10(c).

C. The District Court’s Ruling Represents

an Unprecedented Intrusion Into Local

Government.

In finding that the consent decree supersedes the

City’s Charter “during the duration of ” the District

Court’s “supervision of [the Department] pursuant to

22

the [consent decree] and subsequent [o]rders,” the District Court implicitly suspended operation of the voters’ amendments to their Charter to a date to be

determined by the District Court itself. This represents

an unprecedented and unwarranted federal judicial intrusion into local government affairs, thereby denying

the City’s residents their state constitutional right to

order their municipal affairs, with no lawful justification to do so.

The consent decree is founded upon the City’s

agreement to settle the Allen plaintiffs’ allegations.

Those allegations were never adjudicated, and the City

maintains its denial that any violation of federal law

occurred. App. 83. As such, in enforcing the parties’ settlement agreement the District Court is not exercising

its inherent remedial powers. Milliken v. Bradley, 418

U.S. 717, 738 (1974) (remedial power “may be exercised

‘only on the basis of a constitutional violation’ ”). Rather, the District Court is merely administering a

settlement agreement between two parties. In this

context, suspending the City’s Charter impermissibly

intrudes into local governance, thereby frustrating the

delicate balance between federal courts and state

governance. Rizzo v. Goode, 423 U.S. 362, 379-380

(1976).

Suspending the City’s Charter in this manner also

completely discards the City’s voters’ chosen method of

law enforcement oversight. Measure LL identified the

Chief of Police as the public official accountable to the

public for the operation of the Department. The consent decree’s compliance director is not accountable to

23

the City’s residents, because the compliance director

is not the public official tasked by the Charter with

providing leadership to the Department, or instilling

confidence in the public.

In fact, allowing the compliance director’s findings

in this case to displace the Chief of Police’s findings,

contrary to the Charter’s oversight process, has the

exact opposite of Measure LL’s intended effect by discouraging confidence in the Chief of Police’s decisionmaking. Casting aside the unanimous determinations

of the Chief of Police, Community Police Review Agency,

District Attorney’s Office, and the Department’s Executive Force Review Board, Internal Affairs Division,

and Criminal Investigation Division serves only to undermine the public’s confidence – and not merely in the

Chief of Police, but every other of the five separate investigative entities which unanimously determined

that the Chief of Police was right to find that the Officers in this case used reasonable and lawful force.

Put simply, the Charter’s procedure worked as designed, and the City has no lawful ability to disturb

that process with reliance on an agreement it reached

with private plaintiffs in an unrelated case. Neither

does the District Court. Rizzo, supra.

---------------------------------♦---------------------------------

24

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that this Court grant the petition for a writ of

certiorari.

Respectfully submitted,

HARRY S. STERN

MICHAEL A. MORGUESS

ZACHERY A. LOPES*

RAINS LUCIA STERN

ST. PHALLE & SILVER, PC

220 Montgomery Street, 15th Floor

San Francisco, CA 94104

Tel: 415.341.9341

HStern@RLSlawyers.com

MMorguess@RLSlawyers.com

ZLopes@RLSlawyers.com

*Counsel of Record

Attorneys for Petitioners

Francisco Negrete, William Berger,

Brandon Hraiz, Craig Tanaka

and Josef Phillips