33 Cal.4th 335, S113359, Nolan v. City of Anaheim

Docket Nº:S113359
Citation:33 Cal.4th 335, 14 Cal.Rptr.3d 857
Party Name:Nolan v. City of Anaheim
Case Date:July 01, 2004
Court:Supreme Court of California
 
FREE EXCERPT

Page 335

33 Cal.4th 335

14 Cal.Rptr.3d 857

STEVEN W. NOLAN, Plaintiff and Respondent,

v.

CITY OF ANAHEIM, Defendant and Appellant.

S113359

Supreme Court of California

July 1, 2004

Superior Court, Orange County, Super. Ct. No. 00CC03056, Ct.App. 4/3 G028272 Judge: William F. McDonald.

Page 336

[Copyrighted Material Omitted]

Page 337

[Copyrighted Material Omitted]

Page 338

COUNSEL

Grancell, Lebovitz, Stander, Marx and Barnes, Grancell, Lebovitz, Barnes and Reubens, Norin T. Grancell and Lawrence Kirk for Defendant and Appellant.

Lemarie, Faunce, Pingel & Singer, Law Office of Steven R. Pingel, Steven R. Pingel; Faunce, Singer & Oatman, Edward L. Faunce and Larry J. Roberts for Plaintiff and Respondent.

Peter H. Mixon, Carol McConnell and Richard B. Maness for California Public Employees Retirement Association as Amicus Curiae on behalf of Plaintiff and Respondent.

OPINION

BROWN, J.

Plaintiff Steven W. Nolan was a police officer for the City of Anaheim (Anaheim); his last assignment was as a patrol officer. Pursuant to Government Code section 21156,1 Mr. Nolan has applied for permanent disability retirement benefits on the ground that threats and harassment by other Anaheim officers have rendered him “incapacitated physically or mentally for the performance of his . . . duties in the state service.” (Italics added.) The question presented is what, for the purposes of section 21156, is meant by “state service”?

“State service,” Mr. Nolan contends, refers to the applicant’s last employer. Therefore, Mr. Nolan argues, in order to qualify for disability retirement, he need only show he is incapable of continuing to perform his duties as a patrol officer for Anaheim. We disagree. We conclude that in order to qualify for disability retirement under section 21156, Mr. Nolan will have to show not only that he is incapacitated from performing his usual duties for Anaheim, but also that he is incapacitated from performing the usual duties of a patrol officer for other California law enforcement agencies. Assuming Mr. Nolan makes such a prima facie showing, the burden will then shift to Anaheim to show not only that Mr. Nolan is capable of performing the usual duties of a patrol officer for other California law enforcement agencies, but also to show that similar positions with other California law enforcement agencies are available to Mr. Nolan. By similar positions, we mean patrol officer positions with reasonably comparable pay, benefits, and promotional opportunities.

Page 339

I. Factual and Procedural Background

Mr. Nolan began work as a police officer with Anaheim in 1984. He was number one in his sheriff’s academy class and received outstanding ratings early in his career. In 1991, upon transferring to the gang unit, Mr. Nolan reported what he believed to be excessive use of force by fellow officers. As an apparent consequence, Mr. Nolan experienced strained relations with other members of the gang unit, and he voluntarily returned to patrol duty in 1992.

Five months later, after an internal affairs investigation failed to substantiate any misconduct on the part of the other officers, disciplinary charges were brought against Mr. Nolan for violation of department rules. The charges included unbecoming conduct, unsatisfactory performance, misuse of sick time, and improper handling of evidence. Mr. Nolan was fired, and he took the case to arbitration. The arbitrator ordered him reinstated, but suspended for five days.

Shortly after the arbitration, Mr. Nolan received two threatening telephone calls and numerous telephone hang-ups. He believed the calls were placed by Anaheim police officers. One caller warned him to always wear his vest, an apparent allusion to being shot at, and the other said, “Welcome back, you’re fucking dead.” As a consequence, Mr. Nolan filed for disability retirement; he also filed a civil “whistleblower” suit seeking damages for wrongful termination.

In the whistleblower suit, the jury awarded Mr. Nolan $223,000 for the wrongful termination, but reduced the award by $63,000 on the ground he could have found comparable employment. In addition, the jury awarded Mr. Nolan $180,000 for emotional stress.

In this disability matter, the administrative law judge found that Mr. Nolan suffered no mental incapacity and recommended denial of his request. Anaheim adopted the decision, and Mr. Nolan filed this action, seeking a writ of mandamus to compel the city to grant him disability retirement.

The superior court found that Mr. Nolan was permanently incapacitated for the performance of his duties as a police officer for Anaheim. The court based its finding on the testimony of a psychologist retained by Mr. Nolan, concurred in by a psychiatrist retained by the city’s insurance carrier, that he was not emotionally and mentally able to work as a police officer due to his fear for his personal safety and the retaliation he had already experienced.2

Page 340

The court further found that Mr. Nolan’s fear of retaliation was based, in part, on the likelihood that he could not count on fellow officers for backup in time of need. The court noted that his posttermination arbitration proceeding and his civil whistleblower suit had established that the police department did not have sufficient reason to terminate him and that the termination was in retaliation for his informing on fellow officers he believed used illegal force on suspects. The court further noted that even the psychiatrist retained by the city stated that Mr. Nolan’s fears were reasonable.

The Court of Appeal reversed and remanded the cause for reconsideration of the administrative record under what it held to be the appropriate standard, i.e., “whether Mr. Nolan is mentally incapacitated for state service, i.e., perform police services throughout the state . . . .”

We affirm the judgment of the Court of Appeal, which reversed the judgment of the trial court, and we remand the matter for further proceedings consistent with this opinion.

II. Discussion

The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. (People v. Trevino (2001) 26 Cal.4th 237, 240 [109 Cal.Rptr.2d 567]; People v. Gardeley (1996) 14 Cal.4th 605, 621 [59 Cal.Rptr.2d 356].) To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. (Trevino, at p. 241; Trope v. Katz (1995) 11 Cal.4th 274, 280 [45 Cal.Rptr.2d 241].) When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 [38 Cal.Rptr.2d 650]; People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656].)

The statutory context of this case was recently summarized in Pearl, supra, 26 Cal.4th 189. “The Legislature enacted the Public Employees’ Retirement Law (Gov. Code § 20000 et seq.), ‘to effect economy and efficiency in the public service by providing a means whereby employees who become

Page 341

superannuated or otherwise incapacitated may, without hardship or prejudice, be replaced by more capable employees, and to that end provide a retirement system consisting of retirement compensation and death benefits.’ (Id. § 20001.) Under its provisions, certain persons, including police officers, are eligible for special disability retirement benefits if they are ‘incapacitated for the performance of duty as the result of an industrial disability.’ (Id. § 21151, italics added.) Thus, upon retirement for such a disability, a peace officer ‘shall receive a disability allowance of 50 percent of his or her final compensation plus an annuity purchased with his or her accumulated additional contributions, if any, or, if qualified for service retirement, the member shall receive his or her service retirement allowance if the allowance, after deducting the annuity, is greater.’ (Id. § 21407.) These benefits are free from federal income taxes. (26 U.S.C. § 104(a)(1).)” (Pearl, at pp. 193-194.)

The provision of the Public Employees’ Retirement Law (PERL) at issue here is section 21156, which provides for disability retirement for a member who is incapacitated physically or mentally for the performance of his or her duties in the state service. Section 21156 provides in pertinent part: “If the medical examination and other available information show to the satisfaction of the board, or in case of a local safety member, other than a school safety member, the governing body of the contracting agency employing the member, that the member is incapacitated physically or mentally for the performance of his or her duties in the state service and is eligible to retire for disability, the board shall immediately retire him or her for disability, unless the member is qualified to be retired for service and applies therefor prior to the effective date of his or her retirement for disability or within 30 days after the member is notified of his or her eligibility for retirement on account of disability, in which event the board shall retire the member for service.”

Again, the question presented is what, for the purposes of section 21156, is meant by “state service”?

Mr. Nolan contends that for a police officer, i.e.,a local safety member, to demonstrate he or she isincapacitated physically or...

To continue reading

FREE SIGN UP