| Jo Ann Henrie Foreman |
 COUNTY OF MENDOCINO Grand Jury |
Telephone: (707) 463-4320 |
GRAND JURY |
Complaint Against the District Attorney Despite a specific exemption from the trespass statute for union representatives engaged in activities protected by Penal Code 602(n), union representatives were prosecuted by the DA for trespass. The prosecution was unsuccessful. REASON FOR INVESTIGATION The Grand Jury investigated the arrest and prosecution of union representatives as the result of a citizen's complaint alleging "unlawful arrests and prosecution. METHODS OF INVESTIGATION The Grand Jury reviewed the following documents: police reports, various California Penal Code sections, case law, and depositions. Principals were interviewed. FINDINGS 1 Penal Code 602 makes it a misdemeanor for a person to trespass on private property 2. Penal Code 602(n) has a specific exemption of trespass law for people who are engaged in "lawful union activity." 3. This exemption from trespass has been tested and upheld by the California Supreme Court. In re Catalano 29 Cal.3d 1(1981). 4. The National Labor Relations Board has declared that a union representative need not "state the specific nature of his business at a site." Villa Avila 1O5LRRM 1500-01 (1980). 5. The contractor at two job sites in Ukiah placed union representatives under citizens arrest on three occasions (May 19, May 31, and September 11, 1995). 6. The union representatives stated that they were visiting the job sites "conducting lawful union business." 7 When the Ukiah Police Department submitted the complaint request to the DA's office, the Assistant DA and the Deputy DA initially declined to prosecute for reasons as follows: a. Rejected for the May 19, 1995, arrest: "The criminal justice system is not the proper forum to settle union vs. labor problems -- if he wants to keep union reps off the job site his attorney should obtain the necessary restraining order." b. Rejected for the May 31, 1995, arrest: "I have spoken with complainant in this matter, they are seeking a restraining order so we can handle as 166-4" (Violation of a Court Order). c. Rejected for the September 11, 1995, arrest: "Better to be handled civilly because unions go on private property under certain circumstances." 8. After the contractor who made the citizens arrest visited the DA's office and conversed with the DA, the DA reviewed the September II, 1995. arrest sheet. changed the Deputy DA's recommendation, and ordered prosecution of the union representatives. 9. The DA had the power to prosecute this case. 1 0. The reasons given for prosecuting the union representatives were as follows: a. The officer who responded to the call on September II, 1995, observed ". when I arrived I saw two white male subjects standing in a doorway... They were blocking the doorway and I saw several workers moving materials through the doorway. around the two subjects." b. Further, the officer who responded to the call on September 11, 1995, wrote that the union representative "said that he was at the construction site to conduct 'lawful union business,"' but refused to state what that union business was. c. The pattern of three arrests. 11. The DA did not consult with either the Assistant DA or the Deputy DA who initially reviewed the complaint to ascertain their reasons not to prosecute. 12. Under oath neither the Assistant DA nor the Deputy DA could remember ever having previously been countermanded by the DA on a misdemeanor filing. 13. Under oath the DA stated that at the time of directive to prosecute she was aware of Penal Code 602(n), the exemption for lawful union business, but did not read In re Catalano, Ibid. 14. Prosecution of the case was assigned to a newly-hired Deputy DA whose background was in civil law. This Deputy DA did not consult with the original and senior Deputy DA who declined to prosecute; nor did he familiarize himself with In re Catalano, Ibid. 15. The first notation on the DA's internal record titled "Chronology of Court Proceeding" states "NO DEALS." This encircled statement takes up a half page. and the DA acknowledges having written the statement. The Deputy DA handling the prosecution took this to mean that there would be no deals with the defense and no plea bargains. 16. The prosecution was unsuccessful and the defendants were acquitted by the jury. 17. As a result of this unsuccessful prosecution. the a Civil Rights Complaint was filed against the County, a school district, and the DA. RECOMMENDATION The DA and subordinates should become familiar with the 'Rules of Professional Conduct of the State Bar of California" Chapter 5. Rule 5-1 10: "A member in government service shall not institute or cause to be instituted criminal charge when the member knows or should know that the charges are not supported by probable cause. If, after the institution of criminal charges, the member in government service having the responsibility for prosecuting the charges becomes aware that those charges are not supported by probable cause, the member shall promptly so advise the court in which the criminal matter is pending." COMMENTS 1. In re Catalano, Ibid. is the operative law in California upon which the defense based their case. The prosecuting attorney should have researched the law. Lack of research in preparation for the case appears to have led to a questionable decision to proceed with prosecution. 3. It is difficult to understand why there was such poor communication between the DA and staff on this case. 4 The cost to the County, if the civil rights lawsuit is successful, is unknown. RESPONSE REQUIRED District Attorney (Recommendation).C
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