A court of appeal recently directed a trial court to vacate its order which appointed two employees of the Department of Regional Planning of the County of Los Angeles to serve as confidential expert witnesses for registered sex offenders who challenged a provision of the penal code that limits where registered sex offenders may reside. (County of Los Angeles Department of Regional Planning v. Superior Court of Los Angeles County (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., August 28, 2012).
Penal Code section 3003.5, subdivision (b), provides that it is unlawful for a person who is required to register as a sex offender “to reside within 2000 feet of any public or private school, or park where children regularly gather.” Quoc Thai Pham, Harold R. Brown, Arthur Lee Neal, Sr. and Bernard Harper (collectively, “real parties”) filed an application for a temporary stay of enforcement of section 3003.5, subdivision (b), as to all registered sex offenders on active parole in Los Angeles County. The real parties alleged that there was no housing in the county that complied with the law and therefore enforcement of the law would result in an unconstitutional banishment. The trial court granted the real parties’ application. The Secretary of the California Department of Corrections and Rehabilitation appealed the trial court’s decision. The court of appeal concluded the trial court erred in finding that the real parties were likely to prevail on the merits of their claim and reversed the trial court’s order.
A public defender representing Harold R. Brown filed an ex parte application in which it asked the trial court to appoint two employees of the Department of Regional Planning of the County of Los Angeles (“Department”), Nick Franchino (“Franchino”) and Todd Zagurski (“Zagurski”), to serve as confidential experts for the real parties. There is no evidence that the public defender or anyone else served the application on the Department. The trial court signed an order under seal that appointed Franchino and Zagurski “to confidentially consult with and assist” the real parties.
The County of Los Angeles (“County”), by and through the Department, filed a motion asking the trial court to vacate the appointment of Franchino and Zagurski as experts and to require the real parties to return all documents and information provided to them by the experts. County alleged that in 2008, when it was preparing to enact an ordinance to enforce the mandate of section 3003.5, subdivision (b), it prepared a mapping study to determine whether parolees would be able to find housing that complied with the law in the unincorporated areas of Los Angeles County. The same public defender that later sought the appointment of the Department employees as experts, sent a letter to Franchino in 2010 that stated it was “her understanding that it would be possible to remove the layers of the map that would allow the location of schools, parks, and residential housing to remain.” She asked the Department to help her in duplicating the amended maps. County counsel advised Department that it would not be a problem for Department to comply with the request.
Department later became aware that the trial court had appointed Franchino and Zagurski as experts and that the real parties were using them to add additional data to Department’s 2008 map to assist the real parties in their quest to have section 3003.5, subdivision (b), declared unconstitutional. County asserted that had it been aware that the real parties were going to use Franchino and Zagurski to create a new map, County would have objected to the real parties’ request to appoint them as experts. County additionally asserted that there would be a conflict of interest to have employees of the Department working with a party who sought to have section 3003.5, subdivision (b), and in effect, the County ordinance addressing the issue, invalidated. Real parties asserted there was no conflict of interest because County was not a party to the litigation and there was no confidential attorney-client information involved because the map created by the experts utilized the Department’s 2008 map, which is a public record.
The trial court denied County’s motion to vacate the appointment of Franchino and Zagurski as experts. County filed a petition for writ of mandate seeking an order directing the trial court to vacate its order appointing Franchino and Zagurski as experts.
The court of appeal concluded the trial court lacked the authority to appoint Department employees as experts for the real parties over the objection of the Department. The appellate court noted, “There is little question that, in general, a public entity has the right to direct the tasks undertaken by its employees.” If a court appoints a public employee to perform work for a private party over the objection of the employer, the court interferes with the right of the public entity to direct the tasks of its employees.
As Department employees, Franchino and Zagurski had “a duty to devote their full time and attention to the needs of their employers.” Also, “Department has the right to assign its employees as it sees fit without interference by private parties or the court through the use of the court’s power to appoint experts.” The court of appeal opined that that trial court should have required the real parties to show that Department knew of the appointment request and had no objection to the appointment of the employees as experts. Although an indigent defendant has a right to have an expert appointed to assist in his or her defense, “he or she has no right to demand the appointment of a specific expert as opposed to any other qualified individual.” The real parties did not suggest that Franchino and Zagurski are the only individuals who are qualified to assist them. Furthermore, even if Franchino and Zagurski are willing to provide their services, they are employees of Department and “it is Department’s prerogative to determine whether its employees are available to act as experts.”
Also, the trial court should not have signed the appointment order because the order creates a conflict of interest as a matter of law. Los Angeles County Code, section 5.44.100, subdivision (A), provides that no employee or officer of Los Angeles County may accept employment or receive remuneration in addition to the compensation from the County for services as an expert witness in any matter in which the County is a party or in which any party in the proceeding, in relation to the subject matter of the proceeding, is subject to the jurisdiction or regulation of the county, or a county board, commission, or agency.
Although County is not a party in this case, the real parties are subject to County’s regulation in relation to the subject matter of this proceeding. As a result of section 3003.5, subdivision (b), County enacted an ordinance to restrict the residency of registered sex offenders. Because the real parties are subject to that ordinance, the employees of Department are barred from accepting employment as their expert witnesses. Also, if section 3003.5 is declared unconstitutional, County’s ordinance would also come under attack. County would be unable to use its employees to defend the ordinance because they would be beholden to the real parties’ interest.
The court of appeal directed the trial court to vacate its order appointing Department employees as experts. The court also ordered the real parties to turn over to the County all information provided to them by the experts.
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Bruce A. Scheidt, Laura Izon Powell, David W. Tyra or Jeffrey L. Massey | 916.321.4500