Wehrli v. County of Orange, P.3d, 1999 D.A.R.1879 (9th Cir. April 28, 1999)

* court: federal (Ninth Circuit)

* public agency: Orange County

* plaintiff's job class: deputy marshal

* plaintiff's attorney: Michael Stone

* trial court's decision: in favor of County

* Ninth Circuit's decision: in favor of employee

* issue area: collateral estoppel in section 1983 actions

Wehrli Facts

* Wehrli was a deputy marshal at the county courthouse.

* Wehrli suffered an epileptic seizure and was restricted by the county physician to light duty for five years.

* The county did not have any light duty positions and instead offered Wehrli a clerical position, provided Wehrli waived his rights to re-employment as a deputy marshal.

* Wehrli refused to waive his rights.

* The county then fired Wehrli.

* Wehrli filed a section 1983 action.

* Orange County filed for bankruptcy, and Wehrli's section 1983 action was automatically stayed.

* The personnel rules of the Marshal's Court permitted Wehrli to present his claims to a hearing officer, with that hearing not recorded and not subject to judicial review.

* Wehrli voluntarily opted for such a hearing.

* At the hearing Wehrli was represented by an attorney who presented evidence and cross-examined witnesses.

* The hearing officer, based on updated medical evidence, ruled that Wehrli should be reinstated but without back pay

* Orange County emerged from bankruptcy, and Wehrli tried to restart his section 1983 suit.

* The district court dismissed Wehrli's action on the ground of collateral estoppel, i.e., that he had had an administrative hearing and that that hearing was all to which he was entitled.

Analysis of the Ninth Circuit's Wehrli Decision

* Two of the three Ninth Circuit judges decided in favor of Wehrli.

* Wehrli argued that an administrative hearing which was not subject to judicial review did not block, i.e., did not collaterally estop, his section 1983 action.

* The two-judge majority based their decision upon the several federal cases holding that administrative hearings which were subject to judicial review, even if the plaintiff did not seek judicial review, did block, i.e., did collaterally estop, subsequent section 1983 actions filed by the same individual.

* The dissent argued that, since Wehrli voluntarily chose the administrative hearing, he waived his right to complain about the lack of judicial review of that hearing.

* The dissent also argued that Wehrli's claim fell under the Americans With

Conclusion

As the Fund moves into states with more significant amounts of Indian land, our participants may well encounter civil or criminal exposure in Indian tribal courts. As this case illustrates, the rules of law applicable to those courts is remarkably undeveloped. The Fund may have to play a significant role in the development of these rules.