The Social Justice and Impact Litigation Section litigates high-impact cases, drafts innovative local ordinances, and develops new policies and programs to advance the County’s goal of achieving social and economic justice for all its residents. The Section also defends the County in select cases with the potential to significantly affect the County’s ability to provide critical safety net services to vulnerable residents. The Section is part of a growing movement to use the power and unique perspective of local government to better serve the community and to drive long-lasting change at the local, state, and national levels.
To accomplish its mission, the Section regularly collaborates with the Board of Supervisors and County departments; with other sections in the Office; with community-based organizations and foundations; and with cities, counties, the state, and the federal government. We also have a partnership with Stanford Law School in which we work closely with law school professors and students to develop innovative policy initiatives for the County.
Since 2008, the Section has sponsored a Fellowship Program
that trains talented new lawyers to become local government litigators and advisors with the skills necessary to advance justice in the County and beyond.
County Obtains Preliminary Injunction Preventing Trump Administration from Withholding Funds from "Sanctuary Jurisdictions" (link to County press release
County of Santa Clara Partners with Cities and Counties Nationwide in Legal Action Against President Trump's Travel Ban
(link to County press release
County of Santa Clara Launches California's First "Pay for Success" Project (see project summary below)
CURRENT CASES AND PROJECTS
Launching “Pay for Success” Projects to Better Serve Chronically Homeless and Severely Mentally Ill County Residents
The Section, in collaboration with the County Executive, the Behavioral Health Services Department, and researchers at UCSF and Stanford Medical School, has been at the forefront of national efforts to change the way government entities provide services to their most vulnerable residents. Through its two Pay for Success projects, the County aims to improve the quality, coordination, efficiency, and cost-effectiveness of the care and services it provides to chronically homeless and severely mentally ill County residents. Unlike a traditional fee-for-service government program, where a service provider is paid by the government based on the number of hours or units of service it provides to clients regardless of the outcomes it produces, the service provider in a Pay for Success project is paid only if and when it achieves clearly defined and measurable improvements in clients’ health and well-being, which are assessed by an independent project evaluator. This ensures that scarce government resources are expended only for successful programs.
Press regarding the projects:
Protecting the Rights of Immigrants
The Section has long played a central role in advising the Board of Supervisors and other County officials regarding the County’s policies limiting local involvement in federal immigration enforcement – policies to which the Board of Supervisors has recently reaffirmed its commitment. The Section is now closely involved in the County’s efforts to affirmatively protect the rights of immigrant County residents by allocating more than $3 million to fund immigration-related legal, educational, and community outreach services over the next year.
Improving Pretrial Justice
The Section worked with the County’s Bail and Release Work Group to develop a research report and comprehensive set of policy reform recommendations focused on bail and pretrial release. The Section researched local practices, national reform efforts, and best practices relating to pretrial justice, and assisted the Bail and Release Work Group in developing nearly twenty ambitious reform proposals aimed at reducing reliance on money bail and the for-profit bail bonds industry, and ensuring that individuals who can be safely released during the pretrial period are able to obtain release promptly and without undue financial consequences. The Board of Supervisors approved almost all of the proposed recommendations for further study and/or immediate implementation, and the Section is assisting County officials in refining and implementing the recommended reforms.
Advancing Pay Equity
In collaboration with the Board of Supervisors and the County Executive, the Section and the Labor & Employment Section are analyzing employee data and reviewing, revising and creating policies and practices to advance pay equity for the County’s own workforce. The County employs approximately 18,000 individuals and is the largest employer within Santa Clara County. In addition to advancing pay equity for the County’s own workforce, the Section is working on policies to ensure that County contractors comply with pay equity laws.
Holding Drug Manufacturers Responsible for Disposal of Unwanted Drugs and Sharps
The Section is working with the County’s Consumer and Environmental Protection Agency to implement the County’s 2015 Safe Drug Disposal Ordinance. This ordinance requires that drug manufacturers develop and administer a drug takeback program so that County residents may safely and conveniently dispose of their unwanted and expired pharmaceuticals. The Section is also preparing a similar ordinance to require sharps manufacturers to develop and administer a sharps takeback program for County residents.
Increasing Access to Criminal Record Expungement
The Section is collaborating with Stanford’s Community Law Clinic, the County’s Probation Department, and other stakeholders to develop policies and practices to increase access to criminal record expungement. The Section worked with the Community Law Clinic to research expungement policies and practices in other counties and to develop recommendations for best practices in the County of Santa Clara. This work includes elimination of expungement application fees, creation of a comprehensive information packet for prospective applicants, and other policy changes aimed at facilitating expungement for eligible applicants.
Improving the Efficiency and Efficacy of Services Provided to Homeless County Residents through Data Analysis and Legislation
The Section is collaborating with various County departments to improve the provision of services to the chronically homeless and to increase housing access for low-income individuals. County departments including the Health and Hospital System, the Social Services Agency, and the Low Income Health Program frequently provide services to the same individuals. But those departments’ ability to aggregate their data and analyze the efficacy of their services is limited. Through several initiatives, the Section is facilitating the development of means to analyze existing data and gather new data to improve services provided to the chronically homeless and to ensure that County resources are used as efficiently as possible. The Section is also developing possible solutions to address the housing crisis in the County, with particular attention to supporting Section 8 voucher recipients.
Protecting Victims of Human Trafficking
The Section is working with County departments and community groups to develop protocols to protect minors who are victims of human trafficking within Santa Clara County. The goal is to provide trafficking victims with a safe environment and access to services tailored to meet their needs and to reduce human trafficking within the County. The Section also worked with County departments and national stakeholders to develop regulations to prevent massage establishments from operating as fronts for commercial sexual exploitation or human trafficking.
On October 10, 2017, the County of Santa Clara and Service Employees International Union (SEIU) Local 521 filed a lawsuit in federal court against the Trump Administration to overturn its unlawful rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. The lawsuit is the first in the nation to be brought jointly by an employer and affected workers in response to the Trump Administration’s cancellation of the DACA program. The County lawfully employs DACA recipients in important roles, and many of these employees provide critical services to County residents.
- Court filings and press regarding the case: click here
Challenging President Trump’s Executive Order Defunding Sanctuary Jurisdictions
(County of Santa Clara v. Trump, et al.
On February 3, 2017, the County filed a federal lawsuit against President Donald Trump and members of his administration challenging his January 25, 2017 Executive Order through which he intends to deny all federal funding to any state or local government that he deems fails to comply with his aggressive immigration enforcement plan. The lawsuit challenges the President’s authority to unilaterally impose conditions on federal funds—a power the Constitution places exclusively in the hands of Congress—as well as the blanket denial of all federal funds, the vast majority of which have no connection to immigration or law enforcement.
- Court filings and press regarding the case: click here
Amicus Participation in Litigation Challenging Harmful Federal Policies
In the past year, the Section has authored, contributed to, and signed onto numerous amicus briefs in litigation challenging harmful federal policies and practices. In June 2017, the Section co-authored an amicus brief
before the Federal Circuit Court of Appeals on behalf of 24 cities, counties, and companies challenging the VA’s discriminatory regulation categorically banning surgical care for transgender veterans. In March and April 2017, the County joined four amicus briefs
supporting the State of Hawaii and the International Refugee Assistance Project’s lawsuits challenging the President’s Muslim travel ban. In February 2017, the Section authored an amicus brief
filed with the United States Supreme Court on behalf of 20 cities and counties, challenging the federal government’s practice of imposing mandatory detention on certain immigrants in removal proceedings without providing an opportunity for a bond hearing. And in late 2016, the Section authored an amicus brief
before the District of Columbia Circuit Court of Appeals supporting the FCC’s order setting rate caps for Inmate Calling Services in order to ensure that inmates have access to telecommunications services.
Holding Opioid Painkiller Manufacturers Accountable for Deceptive Marketing and for Creating an Epidemic of Opioid Abuse and Addiction
(People of the State of California v. Purdue Pharma, et al.)
In May 2014, the Section, along with the Orange County District Attorney’s Office, filed a lawsuit on behalf of the People of the State of California against five manufacturers of prescription opioid painkillers like OxyContin and Percocet. The People allege that the manufacturers engaged in unfair competition and deceptively marketed their prescription painkillers as safe and effective for use in treating chronic pain, leading to an epidemic of painkiller abuse and addiction. The lawsuit seeks injunctive relief preventing the manufacturers from continuing their deceptive conduct, civil penalties, restitution for consumers of these drugs, and abatement of the public nuisance created by the skyrocketing rates of abuse and addiction. In November 2014, we successfully defeated the drug companies’ attempt to keep the lawsuit out of the state trial court. We have sought leave to file a Third Amended Complaint that contains updated allegations regarding the defendants’ past and ongoing misconduct and reveals the continuing nature of the opioid crisis throughout California.
Press regarding the case:
- Counties Sue Narcotics Makers, Alleging ‘Campaign of Deception’
Los Angeles Times, May 21, 2014
- Santa Clara County Sues Drug Makers for Hyping Painkillers
San Jose Mercury News, May 22, 2014
- Chicago and a Pair of Counties Bring Lawsuit Against OxyContin Makers
National Public Radio, July 2, 2014
- Chicago and 2 California Counties Sue Over Marketing of Painkillers
New York Times, August 24, 2014
- The Pharmaceutical Drug Epidemic
The Daily Show, September 16, 2014
Holding Lead Paint Manufacturers Accountable for Selling and Marketing a Product that Poisons Thousands of California Children Each Year: Social Justice Team Obtains $1.1 Billion Remedy on Behalf of California Children
(County of Santa Clara, et al. v. Atlantic Richfield, et al.)
After a thirteen-year battle that broke new legal ground, the County of Santa Clara and nine other California cities and counties won a $1.15 billion judgment from the Santa Clara County Superior Court in December 2013 in their long-running lawsuit against the former manufacturers of lead paint. The public nuisance lawsuit was filed in 2000 by then-Santa Clara County Counsel Ann Ravel on behalf of the People of the State of California (People). The County of Santa Clara served as the lead public entity in the case as other cities and counties joined the litigation. The Superior Court’s judgment holds former lead paint manufacturers responsible for marketing lead paint as a safe product despite knowing that the product was highly toxic, especially to children. Although lead paint was banned for residential use in 1978, it remains present in millions of homes in California and continues to poison tens of thousands of California children each year. Prior to this judgment, we also prevailed in two appeals challenging our ability to pursue this case. First, the Court of Appeal held that the People could allege a claim for public nuisance against the lead paint manufacturers. Second, the California Supreme Court held that the People could retain contingency fee counsel to assist in the prosecution of the action. The former lead paint manufacturers are currently challenging the superior court’s judgment in the Sixth District Court of Appeal.
For their efforts in obtaining this landmark judgment, Assistant County Counsel Danny Chou, Lead Deputy County Counsel Greta Hansen, and Deputy County Counsel Jenny Lam were named the 2014 Trial Lawyer of the Year by Public Justice and received the 2014 Recognition Award from the County Counsels’ Association of California.
Press regarding the case:
Challenging a Pharmaceutical Company’s False and Deceptive Marketing of Avandia, a Diabetes Drug
(County of Santa Clara v. GlaxoSmithKline)
In February 2010, the Office of the County Counsel filed a lawsuit on behalf of the People against GlaxoSmithKline (“GSK”) for false and deceptive advertising of its diabetes drug Avandia. The People allege that GSK violated California’s False Advertising Law by conducting a decade-long campaign to promote Avandia as safe and effective while suppressing evidence that the drug significantly increases the risk of heart attack and other life-threatening cardiovascular problems. Similar claims were pursued by the Attorneys General of 37 states, including California, and in November 2012 they settled their claims regarding Avandia with GSK. The California settlement allowed our lawsuit to proceed. We have completed discovery in the case and are awaiting resolution of several motions and the setting of a trial date.
Representing Unaccompanied Children
In November 2014, the Section created a pro bono program to train and support volunteer attorneys in the Office who provide pro bono legal representation to children in the County who fled to the United States without a guardian, and whose best interests do not support removal back to their native countries. Without legal representation, these children are likely to be removed from the United States in adversarial immigration proceedings – even when they have bona fide claims for protection or relief. Attorneys in the office have succeeded in legal proceedings on behalf of several children and are continuing to receive case referrals as more unaccompanied immigrant children enter the County in need of representation.
Crafting Policies to Promote Healthy Beverage Consumption and Public Health
In 2017, the Section worked with the Public Health Department to develop an ordinance that requires restaurants in the unincorporated areas of Santa Clara County to only include milk or water in children’s meals. The ordinance also prohibits such restaurants from providing any incentive item linked to the purchase of a beverage other than milk or water. The ordinance preserves restaurants’ right to offer, and consumers’ right to purchase, any beverage purchased separate from a children’s meal or incentive item. In addition, the Section worked with the Public Health Department on a policy for the County’s health and hospital system to limit the distribution of sugar-sweetened beverages and other unhealthy beverages at County health facilities. These policy changes help to promote healthy meal options for children and families and to discourage the consumption of unhealthy beverages, including sugar-sweetened beverages that contribute to obesity, type 2 diabetes, and tooth decay.
Protecting Public Health by Increasing the Minimum Age to Purchase Tobacco Products, Regulating Electronic Smoking Devices, and Limiting the Sales of Flavored Tobacco Products and Electronic Smoking Devices
Over the last few years, the Section has worked at the forefront of public health initiatives to prevent and reduce use of tobacco products and electronic smoking devices. In 2014, the County adopted ordinances to regulate the sale and use of electronic smoking devices in the same manner as tobacco products. In 2015, the County became the first county in the State to raise the minimum age of purchase for these products to 21; this was followed by similar legislation by the State in 2016. And in 2016, the County limited the sale of menthol and other flavored tobacco products to adult-only tobacco retailers. The Section worked closely with the Public Health Department and Department of Environmental Health in developing each of these ordinances.
Protecting the Rights of Immigrants and Advancing Public Safety
(Secure Communities and Civil Detainer Task Force)
Since 2010, the County has been a leader in protecting the rights of immigrants while advancing public safety. The Section has worked closely with County law enforcement to analyze the County’s practices regarding cooperation with federal immigration enforcement. Based on this work, the County adopted a Resolution Affirming the Separation between County Services and the Enforcement of Federal Civil Immigration Law
. The County has also taken steps to ensure that enforcement of civil immigration law—a role properly reserved for the federal government—does not jeopardize the relationship between local officials and immigrant communities. For example, in September 2010, the Board of Supervisors unanimously voted not to participate in the federal "Secure Communities" program
. And in October 2011, the Board adopted a Civil Detainer Policy
under which the County will honor civil detainer requests issued by Immigration and Customs Enforcement (ICE) only for certain criminal offenses, and only if ICE reimburses the County for the cost of honoring the detainer. The County's work on this issue helped spur the enactment of California's TRUST Act, which establishes a similar policy for the entire state.
Challenging Office Depot’s Overcharging of Public Entities
(State of California, et al., ex rel. Sherwin v. Office Depot)
In December 2012, the County intervened in a whistleblower action brought under the California False Claims Act against Office Depot. The County and the other plaintiffs allege that Office Depot engaged in numerous fraudulent business practices over an extended period of time, resulting in substantial overcharges to counties and cities throughout California. In 2015, the Section settled the County’s dispute with Office Depot for $3 million, ensuring the County recovered the funds it wrongly spent under its contract with Office Depot and allowing it to continue providing critical services to County residents.
Participating in the Fight for Marriage Equality
After the passage of Proposition 8 in 2008, the County, together with the City and County of San Francisco and the City of Los Angeles, challenged Proposition 8 in the California Supreme Court. Although the California Supreme Court upheld Proposition 8, it also confirmed the validity of the 18,000 same-sex marriages that were performed in California before Proposition 8’s effective date. When Proposition 8 was later challenged in federal court, the County filed an amicus curiae brief on behalf of multiple local jurisdictions arguing that the Proposition 8 proponents did not have standing to defend the constitutionality of the initiative. The U.S. Supreme Court ultimately agreed. The Supreme Court’s ruling restored the district court’s injunction against the enforcement of Proposition 8 and allows same-sex couples in California to marry.
Prohibiting Predatory Lending Practices
In 2012, the Section prepared a comprehensive analysis of the pernicious practices of the payday lending industry and drafted an ordinance amending the County’s Zoning Ordinance to prohibit the establishment, relocation, or expansion of payday lending and check-cashing businesses in the unincorporated areas of the County. The Board of Supervisors passed the ordinance unanimously. Though other jurisdictions had adopted payday lending ordinances in the past, the County was the first governmental entity in California to ban new payday lending and check-cashing businesses.
Challenging Arizona’s Anti-Immigrant Law
(United States of America v. State of Arizona; Friendly House, et al. v. Whiting, et al.)
In 2012, the County led an effort by a broad coalition of major cities and counties across the United States to challenge the constitutionality of Arizona’s anti-immigrant law, SB 1070. The Section drafted amicus curiae briefs filed in the U.S. District Court for the District of Arizona, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. Supreme Court explaining that SB 1070 would compel local law enforcement agencies to perform acts that are unconstitutional, impractical, and costly, and that deeply undermine trust between law enforcement and immigrant communities. The most troubling provisions of Arizona’s law were ultimately struck down by the U.S. Supreme Court.
Ensuring Equal Treatment In the Juvenile Justice System
Beginning in 2011, the Section participated in a County initiative to reduce the disproportionate representation of young people of color in the County’s juvenile justice system. The Section worked with representatives of the County’s juvenile justice agencies and the non-profit community to analyze current practices, identify best practices, and create policies and procedures to reduce racial disparities.
Protecting the County’s Ability to Provide Critical Mental Health Services to Children
(County of Santa Clara v. Commission on State Mandates, et al.)
In 2009, the County challenged the State Controller’s denial of $8.6 million in reimbursements to the County Mental Health Department for providing state-mandated mental health services to children with disabilities. Litigated by the Section, the lawsuit sought to ensure that children would continue receiving critical mental health services and to protect the County’s ability to provide other mental health services to indigent County residents. After filing an administrative claim challenging the denial of reimbursement, the County filed a separate lawsuit challenging the constitutionality of the backlogged administrative claim process where the County’s claim would have languished for decades. The State entered into a settlement with the County and agreed to hear the County’s administrative challenge immediately. In the administrative proceeding, the County prevailed, restoring the $8.6 million in reimbursements and establishing a precedent ensuring that counties statewide would receive additional tens of millions of dollars for childhood mental health services.
Defending New York City’s Point-of-Sale Warnings Regarding Tobacco
(23-34 94th St. Grocery Corp. v. New York City Board of Health)
Along with other public entities across the country, the County filed an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit supporting New York City’s point-of-sale warnings regarding the negative health effects of tobacco use. We took the lead in drafting the public entities’ brief, which argued that the regulations were neither preempted by federal law nor in violation of the First Amendment. The court ultimately found that the requirements in New York’s Health Code were preempted by the Federal Cigarette Labeling and Advertising Act.
Challenging the Denial of Medi-Cal Coverage to Children in the Juvenile Justice System
(City and County of San Francisco and County of Santa Clara v. California Department of Health Care Services)
The County partnered with San Francisco to challenge the State’s practice of terminating a child’s Medi-Cal eligibility upon detention by the juvenile justice system. In doing so, the State improperly denied Medi-Cal reimbursement for psychiatric hospital care for these children, and failed to reinstate their Medi-Cal eligibility in a timely manner upon their release from custody. The lawsuit prompted a new state law, adopted in 2008, requiring the State to suspend rather than terminate a child’s Medi-Cal enrollment while he or she is in custody. In 2010, the Section also obtained a judgment requiring the State to pay for inpatient psychiatric hospital care for detained youth up to age 21. This ensured that vulnerable youth would receive necessary psychiatric care.
Challenging Pharmaceutical Manufacturers’ Violations of a Federal Program Requiring Provision of Discounted Drugs to Public Hospitals and Clinics
(County of Santa Clara v. Astra, et al.)
Drug manufacturers that participate in the federal 340B Program must provide outpatient drugs to qualified covered entities – including the Santa Clara Valley Health & Hospital System – at reduced prices. After federal agencies identified extensive violations of this program by drug manufacturers, the County sued those manufacturers seeking to recover the discounts the manufacturers unlawfully withheld. The defendants challenged the County’s standing to enforce the requirements of the program, and the district court dismissed the County’s lawsuit on that basis. The County appealed and the Ninth Circuit reversed, holding that the County, as a beneficiary of the program, had standing to sue. The defendants appealed to the U.S. Supreme Court and the Court granted certiorari. The case was argued in January 2011, and in March of that year the Court ruled that only the federal government had authority to enforce the requirements of the program.
Reducing Tobacco Usage and Protecting the Public from Second-Hand Smoke
The Section worked closely with the Board of Supervisors, the Public Health Department, the Department of Environmental Health, and other County departments to improve the health of County residents by limiting tobacco sales and usage within the County. The Section assisted in the development of ordinances adopted by the Board in November 2010 that (1) require retailers to abide by certain requirements in order to obtain and maintain permits to sell tobacco products, and (2) prohibit smoking at the County Fairgrounds, County parks and trails, and many other unincorporated areas of the County including multi-unit residences, outdoor shopping malls, and within 30 feet of dining facilities, ATM lines, and bus stops.
Curtailing the Marketing of Fast Food to Children
The Section worked with the Public Health Department and Supervisor Ken Yeager’s office to develop an ordinance restricting the restaurant industry’s use of toys and other incentives to sell unhealthy meals to children. The ordinance was adopted by the Board of Supervisors in 2010, and inspired a similar law in San Francisco as well as voluntary changes by the fast food industry to improve the quality of menu options for children.
Ensuring Adequate Notice of a Settlement with the Social Security Administration
(Martinez, et al. v. Astrue)
In September 2009, the County objected to inadequate notice provisions in a proposed class action settlement agreement between individual plaintiffs and the federal Social Security Administration (“SSA”). SSA had wrongfully denied or terminated federal benefits to scores of individuals with outstanding felony warrants. In response to the County’s concerns, SSA was ordered to use more effective notice procedures. The County estimates that the improved notice procedures ensured that at least 5,000 additional class members received notice of their rights under the settlement agreement. If these class members avail themselves of these rights, approximately $50 million more in benefits will distributed to persons who should have received those benefits.
Improving Consumers’ Ability to Choose Healthier Menu Options
In 2008, the Board of Supervisors passed an ordinance requiring chain restaurants to provide consumers with basic nutritional information on menus, including calorie counts. The ordinance, drafted by the Section, sought to address the County’s rising obesity epidemic by improving the ability of consumers to make healthier food decisions. The California Restaurant Association sued the County to enjoin the ordinance, but ultimately compromised by supporting statewide menu labeling legislation, which took effect in July 2009.
Challenging the Artificial Inflation of Natural Gas Prices
(County of Santa Clara v. Sempra Energy, et al.)
With the assistance of the Section, the County participated in a class action lawsuit by public entities against several natural gas suppliers, alleging that they falsely reported natural gas price information and engaged in “wash trades” to artificially inflate the price of natural gas in California. In 2009, after initial discovery and a favorable preemption decision in the Ninth Circuit Court of Appeals, all of the defendants agreed to settle the lawsuit for approximately $124 million.
Improving Legal Representation for Immigrants
County Counsel secured a small grant from the American Bar Association to train lawyers in October 2008 to represent victims of fraud by unscrupulous non-attorney immigration consultants. In collaboration with the Immigrant Legal Resource Center, the Immigrants’ Rights Clinic at Stanford Law School, and Catholic Charities, our October 2008 program trained 19 lawyers to represent victims of immigrant consultant fraud.
Challenging Insurance Broker’s Failure to Disclose Conflict of Interest
(County of Santa Clara v. Driver Alliant)
With the assistance of the Section, the County filed a class action lawsuit on behalf of itself and other similarly situated public entities against insurance broker Driver Alliant, challenging its failure to disclose contingent commissions it received from large insurance companies in exchange for steering business contracts with the County and other class members to those insurers. In November 2008, Alliant settled the case by paying the County and other class members $3.2 million, plus $2.5 million in legal fees.
Reducing Children’s Access to Sweetened Alcoholic Beverages While Increasing State Tax Revenue
(County of Santa Clara v. State Board of Equalization)
In 2006, the County sued the State Board of Equalization challenging the improper classification of sweetened alcoholic beverages known as “alcopops.” Alcopops had been taxed at $0.20 per gallon (the rate for beer) instead of $3.30 per gallon (the rate for drinks with distilled spirits). As a result of their improper classification, alcopops were more easily obtainable by underage drinkers. The County’s lawsuit prompted the Board of Equalization to reclassify alcopops as distilled spirits, making them less accessible to minors and increasing state tax revenue by approximately $40 million per year.