922 F. 2d 844 - Au Hoon v. City and County of Honolulu a F

MEMORANDUM*

Ann K. Au Hoon appeals the district court's grant of summary judgment in favor of the City and County of Honolulu on her civil rights claims under 42 U.S.C. Sec. 1983. The district court also denied Au Hoon's motion for summary judgment, granted summary judgment to Defendant Marsland on absolute immunity grounds, and remanded Au Hoon's pendent state claims to state court.

We reverse the summary judgment in favor of defendant City and County of Honolulu.

Au Hoon was indicted for first degree assault. Before Au Hoon's trial commenced, the Deputy Prosecuting Attorney, Douglas Crosier, learned that the victim had lied to the police and the grand jury about how she was injured. Mr. Crosier neither notified Au Hoon's counsel of the perjury prior to the trial nor requested a dismissal of the case so that a new indictment could be obtained. Instead, during his opening argument at trial, he alerted the court and Au Hoon's counsel to the victim's lies, and the court determined that the case should still proceed. Au Hoon was found guilty after a court trial. The court sentenced her to five years in prison and ordered her to pay restitution. The day prior to Au Hoon's sentencing, First Deputy Prosecuting Attorney Paul Toyozaki received and signed a case evaluation form which described the outcome of the case, including a statement that the victim had lied to the investigating officer and to the grand jury which indicted Au Hoon.

After spending thirteen months in prison, Au Hoon was released when the Hawaii Supreme Court reversed her conviction. That court held that Deputy Crosier's disclosure of the perjury at trial did not satisfy the requirements of either the federal or state constitutions. Citing United States v. Basurto, 497 F.2d 781, 787 (9th Cir.1974), the court determined that it is improper to allow a defendant to stand trial on an indictment which the government knows is based on perjury.

After Au Hoon's conviction was reversed, the prosecutor's office obtained her reindictment for first degree assault. During the indictment proceedings, the grand jury was told of the victim's earlier perjury. Prior to Au Hoon's scheduled retrial, her motion to dismiss the charge was granted on double jeopardy grounds. After this dismissal, another case evaluation form was submitted to First Deputy Toyozaki with a description of the outcome of the case and a recommendation that the judgment be appealed. He approved the recommendation to appeal, but the appeal was never pursued.

Au Hoon then brought this action under 42 U.S.C. Sec. 1983 in state court against Deputy Crosier, City Prosecutor Marsland, and the City and County of Honolulu ("Honolulu"). Defendants removed the action to the district court. By stipulation, Deputy Crosier was dismissed from the action with prejudice. The parties filed cross-motions for summary judgment. After hearings on both motions, the district court granted Defendants' motion and denied Plaintiff's motion.

The court granted summary judgment on the section 1983 claims in favor of City Prosecutor Marsland on the basis of prosecutorial immunity. Summary judgment in favor of Honolulu was based on the district court's conclusion that the challenged actions were not the result of a policy of the district attorney's office, were not made by persons with authority to make final policy for Honolulu, and were not ratified by Honolulu's authorized policymakers. The court remanded all state claims to state court. Au Hoon filed a timely appeal as to the judgment in favor of Honolulu.1

The district court had jurisdiction pursuant to 28 U.S.C. Secs. 1343 and 1441(b). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

"We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party to determine if there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir.1989) (citation omitted). We review questions of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

We review the district court's remand of tort claims to the state court for abuse of discretion. Remand is usually proper. See Les Shockley Racing, Inc. v. National Hot Rod Ass'n, 884 F.2d 504, 509 (9th Cir.1989).

A. Municipal Liability.

A municipality may be held liable under section 1983 where unconstitutional conduct resulting in injury to plaintiff was caused by "execution of a government's policy or custom...." Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Only officials with final policymaking authority in the subject area at issue may make decisions which subject a municipality to section 1983 liability. City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988) (plurality opinion). If final policymakers approve a subordinate's decision and its basis, "their ratification would be chargeable to the municipality because their decision is final." Id. at 127, 108 S.Ct. at 926.

The question of who has final policymaking authority is one of state law. Jett v. Dallas Indep. School Dist., --- U.S. ----, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989). Once the court has made this determination, the jury must decide whether a decision of those with final policymaking power has caused the deprivation of plaintiff's rights "by policies which affirmatively command that [the deprivation] occur ... or by acquiescence in a longstanding practice or custom which constitutes the 'standard operating procedure' of the local governmental entity." Id.

(1) Official policy or custom.

The district court concluded that there was no policy, custom or usage to use perjured testimony in prosecutions or to reindict those to whom jeopardy has already attached. The court's conclusion with respect to the existence of a formal policy is correct since Au Hoon offered no evidence of any formal policy affirmatively commanding the deprivations at issue, with respect to Au Hoon or criminal defendants in general.

Au Hoon claims that there was a custom in the prosecuting attorney's office of prosecuting criminal defendants "without regard to whether their civil rights are violated." Whether we look for evidence of a custom as defined by the district court or by Au Hoon, there was not enough evidence of the existence of a custom to create a material issue of fact requiring jury determination.2

Au Hoon attached documents to her opposition to the defendants' motion for summary judgment pertaining to other cases which alleged malicious prosecution and violations of the plaintiffs' constitutional rights by the prosecutor's office and Honolulu. Even if accepted, evidence that the district attorney's office may have acted improperly in two other cases is not sufficient to show that this type of conduct was so widespread as to constitute a "permanent and well-settled" custom or usage. Even competent evidence of prosecutorial disregard of defendants' civil rights in those cases, combined with the evidence of violation of Au Hoon's civil rights, is not enough to warrant a reasonable jury finding that such a custom existed in the prosecutor's office. Thus, the district court did not err in granting summary judgment on this issue. Cf. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir.1989) (proof of random acts or isolated events insufficient to establish custom).

(2) The final policymakers.

The district court properly treated the determination of who the final policymakers were as a question of law to be determined by reference to state and local law. The Revised Charter of The City and County of Honolulu makes clear that the Prosecuting Attorney and the First Deputy are the authorized policymakers of the department of the prosecuting attorney for Honolulu. That is undisputed.

The court concluded that none of the deputy prosecutors involved in the decisionmaking in Au Hoon's criminal case were final policymakers. The district court's conclusion with respect to Deputy Crosier was correct. There was no evidence offered to show that Deputy Crosier was given any policymaking authority, though he was given decisionmaking authority in the cases he prosecuted, including the Au Hoon case.

Mr. Marsland and Mr. Toyozaki were permitted by the relevant state law to delegate both their decisionmaking and policymaking authority to deputy prosecutors. Au Hoon did offer evidence that the division heads exercised certain policymaking authority, so that at least some policymaking authority was in fact lodged with them. Nevertheless, Mr. Toyozaki retained the authority to make all final policy decisions.

Moreover, we do not look for de facto policymakers, Praprotnik, 485 U.S. at 131, 108 S.Ct. at 928, and the identity of the final policymaker is a question of state, not federal, law. Therefore, only the City Prosecutor and the First Deputy were final policymakers in this case. See Jett, 109 S.Ct. 2722-24; Praprotnik, 485 U.S. at 124-27, 108 S.Ct. at 924-25; Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889-90 (9th Cir.1990). The district court did not err when it determined that based on the provisions of the law of Hawaii and the final policymakers' refusal to delegate final authority to others--a refusal that even reached to a sign-off by the First Deputy on every case--the people below the level of First Deputy were not final policymakers for Honolulu.

(3) Ratification.3

The district court held that there was no evidence of "actual participation" by either Mr. Marsland or Mr. Toyozaki in the challenged decisions, and, implicitly, that Mr. Toyozaki's review of case evaluation forms shows only that he retained authority to review past decisions, not that he ratified those decisions. A review of the transcript of proceedings below makes apparent that the district court believed that "ratification" could not apply to actions that had already been taken at a lower level. That was error.

In Hammond v. County of Madera, 859 F.2d 797 (9th Cir.1988), we held the defendant county liable for accepting and approving illegal deeds across plaintiffs' land. Those deeds were procured by an agent. Because the agent received notice of the proper procedure for obtaining the rights-of-way, and because the Board was deemed to have constructive notice of the proper procedure, it ratified the agent's misconduct by accepting the deeds. That made the county liable for the section 1983 violation. Id. at 802-03.

Like the defendants in the case at bar, the county also argued that its agent followed an incorrect procedure, and that the Board's approval of the deeds was a "mere formality." However, we held that since the Board had constructive notice of the proper procedures to be followed, and was charged with knowing the law governing the functions within the scope of its responsibility, its approval of the improper deeds without inquiry into their validity constituted reckless disregard of the plaintiffs' constitutional rights. Id. at 803.

Other cases also suggest that ratification of subordinate decisions may occur after the allegedly unconstitutional action has already occurred. See Leach v. Shelby County Sheriff, 891 F.2d 1241, 1248 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990); Marchese v. Lucas, 758 F.2d 181, 188-89 (6th Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987).

Thus, it is not correct to say that only actions approved in advance are "ratified" for purposes of imposing liability on a municipality under section 1983. To do so confuses decisionmaking authority with policymaking authority, and further ignores the fact that ratification demonstrates that the act was consonant with the policy of the entity.

It is undisputed that Mr. Toyozaki received a case evaluation form at the conclusion of each case. That evaluation contained a description of the case, its outcome, and the deputy prosecuting attorney's recommendations. Mr. Toyozaki then signed the case evaluation forms. If no further action was to be taken, the file would be placed in a closed file.

Mr. Toyozaki testified that he basically "rubber stamped" the decisions of the deputy prosecutors, and that the significance of his signature on the case evaluation forms was "[m]ainly to make sure that case eval forms were being submitted." Mr. Carlisle testified that when Mr. Toyozaki "sign[ed] off on the case eval[uation,]" that indicated the case was finished. He further testified that Mr. Toyozaki might simply sign the evaluation, he might add comments, or "[i]f he has things that he wants changed, then he writes them down." The forms in this case show that Mr. Toyozaki did more than sign off--on one of them he circled and initialled a recommendation.

While there is no dispute as to what Mr. Toyozaki actually did, or when he did it, the parties clearly dispute the meaning of those actions. Au Hoon contends that Mr. Toyozaki's actions amount to ratification of his subordinates' decisions. Honolulu asserts, on the other hand, that Mr. Toyozaki's actions were a rubber stamping which amounted to a "review" rather than "ratification" of subordinates' conduct. Contradictory inferences may be drawn from the undisputed facts, and thus summary judgment on this issue was inappropriate. Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir.1985).

Moreover, when the first evaluation was done, it was not too late to stop the court proceedings. If the policymaker (Mr. Toyozaki) did not agree that a prosecution should go forward when the indictment might be based, in part, on perjured testimony, that could have been argued to the trial court before the sentencing took place, or could even have been confessed to the appellate court. All of that could have deflected the harm suffered by the plaintiff, who, instead, languished in prison for thirteen months.

Thus, we reverse the district court's summary judgment on the issue of ratification.

B. The Violation Issue.

In the proceedings before the district court, and here, the parties appear to have assumed, at least for summary judgment purposes, that the actions of the prosecutor could have been a violation of Au Hoon's constitutional rights. On that basis we have focused on the ratification issue, and now reverse the district court's decision on that issue.

We do so without intending to express an opinion on the issue of whether, under the facts of this case as they are ultimately developed, the mere adoption and implementation by the prosecutors of particular litigating postures regarding grand jury testimony and reindictment could be considered to be violations of Au Hoon's constitutional rights. Thus, we do not intend to preclude the parties or the district court from focusing upon and ventilating that issue during the remaining course of this litigation.

C. Collateral Estoppel and Res Judicata.

In their cross-motions for summary judgment and in their appellate briefs, both parties discussed the issue of the res judicata effect, if any, of the state proceedings, but the district court did not issue any ruling on the question. Thus, there is nothing for this court to review. Since we reverse the district court's summary judgment, it is appropriate to allow the district court to decide this issue on remand. See Sacramento Regional County Sanitation Dist. v. Reilly, 905 F.2d 1262, 1271 (9th Cir.1990) (remand appropriate for issue not decided below where decision on other ground reversed).

D. Remand of Pendent State Law Claims.

Because we reverse the grant of summary judgment, we must also reverse the district court's order remanding the state law claims to state court, since its reason for the remand has fallen, and it should reconsider the matter in light of that fact.

E. Attorneys' Fees and Costs.

Since the case has not been decided on the merits at this point, it would be premature to award attorneys' fees and costs. See Hewitt v. Helms, 482 U.S. 755, 759-60, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987).

Because issues of fact remain regarding the actions of First Deputy Toyozaki, who is a policymaker for Honolulu, we reverse the summary judgment in favor of Honolulu. Moreover, because the judgment regarding all federal claims may have been the reason for the district court's order remanding the state tort claims, we reverse that order also, without, in any way, expressing an opinion on whether those claims should be retained. We also express no opinion on the issues of whether the prosecutors' litigating positions violated Au Hoon's constitutional rights or whether res judicata or collateral estoppel apply, since those issues were never reached below.

REVERSED in part and remanded for further proceedings not inconsistent with this decision.