Daly v. San Bernardino Cnty. Bd. of Supers., No. S260209 (Cal. Aug. 9, 2021)
If you been following the debate over the SCOTUS shadow docket over the past couple years, you might know that, in federal court, judgments on appeal are not automatically stayed. Whether a stay will issue is a matter of discretion left up to the deciding court in the first instance, and then the court reviewing on appeal, with the party seeking the say bearing the burden of persuasion. See Fed. R. Civ. P. 62(c); Fed. R. App. P. 8(a); see generally Nken v. Holder, 556 U.S. 418, 426 (2009) (four-factor test, similar to Winter test applicable to injunction); Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
But in California, it’s the other way around. Filing a notice of appeal presumptively stays enforcement of a judgment. Code. Civ. Proc. § 916. That rule is then subject to statutory exceptions—“as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810.” Id. The most commonly invoked of those is when the appellant of a money judgment fails to post an appellate bond. See § 917.1. Appellate courts also have discretion to grant writs of supersedeas to stay cases that are not otherwise within the ambit of § 916. But there’s no statutory authority to afford relief from a stay if a case falls within one of the statutory exceptions.
And then there is the rule for injunctions. Except for very specific kinds of injunctions, see Slip Op. 9 n.4, the statutes on stays don’t really address those at all. Which puts us into the realm of the preeminent canon of construction that applies to California procedural law—procedunt omnia statuta nisi non.* Everything in procedure is statutory, except when it isn’t. Back in 1857—notwithstanding an 1851 statute substantively equivalent to § 916—the Supreme Court held that only a mandatory injunction is stayed on appeal. An ordinary prohibitory injunction is not. That has remained the basic rule throughout the history of the state. The rub, however, is telling the difference between the two. Which gets us to this case.
A member of the San Bernardino Board of Supervisors quit to join the state assembly. The county charter says, in the event that occurs, the remaining supes get to appoint a replacement. But if that doesn’t happen within thirty days, appointment goes to the governor. Here, the members of the board culled a large list of potential appointees through an email nominations process before having an open meeting to debate the nominees and vote on the appointment. The meeting occurred and a new supervisor was seated. Plaintiff’s mandamus petition contended that the email culling was a form of non-public seriatim voting that violated the open meeting rules in the Brown Act. The trial court agreed. It held that the appointment was invalid, so the new supervisor needed to be unseated. And since thirty days had passed, it was the governor’s choice to pick the replacement. The County appealed.
So the question then, is whether that order is a mandatory injunction (stay applies) or a prohibitory one (with no stay)? After an extensive review of the pertinent case law (beginning with that aforementioned 1857 case) the Court, in a unanimous opinion by Justice Kruger, says the injunction was mandatory and thus should have been stayed.
The difference between mandatory and prohibitory injunctions is based on the concern with preserving the status quo pending appeal. A change to it is mandatory, while a sustenance of it is a prohibition. But it’s not really that simple. As the court notes, “[l]ike many distinctions in the law, the distinction between a mandatory and a prohibitory injunction sometimes proves easier to state than to apply.”
So, in one old case, San Francisco was ordered to stop storing so much water in a reservoir. Even though it reads like a prohibition, because the status quo was that it could store the water, the injunction was deemed mandatory and thus stayed pending appeal. See Byington v. Superior Court, 14 Cal. 2d 68, 70 (1939). Or an order unseating a director of a corporation in favor of someone else was viewed as mandatory, even though phrased in terms of enjoining the service of the ousted director, because the status quo permitted him to serve. Foster v. Superior Court, 115 Cal. 279, 282 (1896). Same thing for a contested officer of a hotel. Clute v. Superior Court, 155 Cal. 15, 18 (1908). Or an order requiring a company to discontinue the employment of an individual who was expelled from its labor union. Feinberg v. One Doe Co., 14 Cal.2d 24, 27 (1939).
But then there’s a case where San Francisco was ordered to stop operating a Muni line. United Railroads v. Superior Court, 172 Cal. 80, 82 (1916). The status quo was that it was operating the line, so under the above rule, that would seem to make the injunction mandatory. But the court held that it wasn’t because San Francisco wasn’t improperly operating the line at “the last actual peaceable, uncontested status which preceded the pending controversy.”
This is a hard distinction to draw. Wasn’t the “the last actual peaceable, uncontested status which preceded the pending controversy” in Byington San Francisco not storing extra water? Or in Foster, Clute, and Feinberg, the defendants’ not having an objectionable director, officer, or employee?
But Justice Kruger—quite cleverly—sees a different through-line here. It turns on whether the order “aims not to prevent injury from future conduct but instead offers a remedy for a past violation[.]” Something that enjoins acts that could cause harm in the future—stopping the misuse of the tracks in United Railroads—is a prohibition. On the other hand, something that requires an affirmative act to remedy a past violation—like draining the reservoir in Byington or ending relationships with directors, officers, or employees in Foster, Clute, and Feinberg—counts as mandatory. I haven’t sat down and seen if that rule would do Judge Hercules' job of more coherently explaining the distinctions over the 170-ish years of case law. But it certainly feels less arbitrary and it has some logical appeal.
So applied here, the order—that the county terminate a supervisor appointed by the other supes and let the governor make the pick—was clearly mandatory. It was a compelled act to remedy the prior Brown Act violation.
The opinion goes on to explain that, while settled law says the injunction was mandatory and thus should have been stayed, the distinction is kind of artificial and “also appears imperfectly aligned with the equitable considerations relevant to the question of staying an order pending appeal.” The rule does not necessarily produce the most just result in all cases. The Court further notes that both the federal courts and the courts of many states apply a more discretionary approach that leaves room for a more individualized consideration of whether a stay is justified. So while this matter beyond the scope of the appeal, the Court notes that the Legislature could always choose to revisit the issue and “decide whether the law would be better served by an approach that permits courts to take account of a wider array of equitable considerations than does present law.”
Court of Appeal reversed.
* Ok, I just made that up with Google translate. It’s probably not even grammatical Latin. But it’s no less true of a canon than anything on Karl Llewellyn’s list.
