APPELLATE PRACTICE

Nielsen Merksamer's attorneys regularly handle high profile appeals at all appellate levels in California and in the federal courts. We believe that effectively representing litigants before state and federal appellate courts requires specialized expertise. Nielsen Merksamer attorneys have unparalleled experience in appellate advocacy. Our lawyers have gained that expertise by working directly for Justices in the California Supreme Court and Courts of Appeal, by representing numerous clients before appellate courts on a wide variety of issues, and by continuing to work with appellate judges on ongoing projects of concern to their courts.

The firm represents a wide spectrum of clients including Fortune 500 companies, small businesses, political and trade associations, individuals and government agencies. We are knowledgeable in a wide range of subject areas that we have litigated in the appellate courts. We have represented clients in appeals involving business, insurance, real estate, constitutional law, elections, tax, government, land use, rent control, and discrimination matters, among others. The firm also is often retained to prepare amicus curiae briefs in critical appeals presenting cutting-edge issues and fundamental public policy questions.

Our Commitment to Client Service

Nielsen Merksamer believes that its success in appellate litigation results from the firm's commitment to client service as well as the extensive experience of its attorneys.

• We provide the client with the immediate attention of a senior attorney who has expert knowledge of appellate procedures, issues and strategies, as well as of the subject matter of the case.

• We view the client's claim in its full context, including how the case was litigated at trial and how the appellate courts, including the judges on that particular court, have treated such cases.

• We provide the client with an initial early response as to the firm's conclusions concerning the best appellate court approach and the likelihood of success.

• We evaluate the desirability of amicus curiae support and provide assistance in obtaining such support where appropriate and beneficial.

Information about the firm's appellate attorneys is found in the Biographies and the list of Representative Cases which follows.

Biographies

JOHN MUELLER has 30 years of experience in the appellate courts. Immediately upon graduation he became a research attorney for Justice Robert Thompson of the California Court of Appeal and then for Chief Justice Donald Wright of the California Supreme Court. Thereafter, he was a senior attorney for the National Center for State Courts, specializing in appellate courts. In that capacity he personally managed and conducted appellate court studies in all of the Western states, including the most comprehensive analysis ever made of the California Courts of Appeal. He has published numerous reports on appellate courts located throughout the United States.

For over twenty-five years, John has been a litigation partner in the firm. He has successfully handled a wide variety of cases both at trial and on appeal. He has successfully represented clients in high profile and multi-million dollar cases on appeal in the California Supreme Court and all California appellate courts as well as the Ninth Circuit Court of Appeals. He also regularly prepares amicus curiae briefs in cases presenting substantial public policy questions in the United States and California Supreme Courts.

John is one of two attorneys, along with several appellate judges from throughout the country, on the prestigious National Appellate Court Performance Standards Commission which has published the widely disseminated "Appellate Court Performance Standards." John was selected by California Chief Justice Ronald George as the only attorney member of the "Task Force on Appellate Mediation" to evaluate the potential use of mediation in California's Courts of Appeal. John is a trained appellate court mediator.

JIM PARRINELLO is the head of our Litigation Section. He has extensive appellate experience having successfully litigated major constitutional cases before the United States Supreme Court and the California Supreme Court. For more than 25 years, he has represented clients in regulatory
and government law and complex litigation. He has argued cases successfully before the United States and California Supreme Courts and Courts of Appeal. He is an expert on the legality of governmental regulations; state and local initiatives; alcoholic beverage regulations; voting rights and reapportionment; rent control and property rights. Representative cases include Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) (successfully argued that ordinance limiting contributions to ballot measure campaigns violates the First Amendment), Chemical Specialties Manufacturers Association v. Deukmejian, 227 Cal.App.3d 663 (1991) (successfully argued Proposition 105, the so-called Public's Right to Know Act, violated the California Constitution); Pala Band of Mission Indians v. Board of Supervisors, 54 Cal.App.4th 565 (1997) [successfully defended legality of San Diego County initiative establishing zoning and general plan amendments for sanitary waste facility] and San Francisco 49ers v. Nishioka, 75 Cal.App.4th 435 (1999) [successfully invalidated initiative for false representations to prospective signers]. He was an appointee to the California Commission on Ballot Initiatives, and has served on the faculty of the Hastings College of Trial and Appellate Advocacy. He is a graduate of the University of San Francisco and the University of San Francisco School of Law where he was the class valedictorian.

RICHARD D. MARTLAND has had a long and distinguished career. Prior to joining the firm as of counsel, he represented the State of California as an attorney for 29 years. He served for eight years as Chief Assistant Attorney General in charge of the Civil Division and was the Attorney General's principal legal advisor to three Governors. He has handled numerous appeals throughout his career. His areas of responsibility included general state government, business and tax, professional and vocational licensing, health and welfare, and tort and condemnation. He has also served as an Assistant Attorney General in charge of the Government Section. He is a graduate of Stanford University and received his legal degree from the University of California, Boalt Hall School of Law.

Recent appellate victories include:

• Obtaining reversal of a trial court decision in a landmark published opinion that applied the Takings Clause to a local ordinance that restricted the right of property owners to evict tenants so that they could occupy their own residential property.

• Obtaining affirmation of a trial court dismissal of Ross Perot's claim for several million dollars and that federal election law is unconstitutional in a published decision by the Ninth Circuit Court of Appeals.

• Obtaining affirmation of a summary judgment for several defendants in a sexual harassment and employment discrimination case including an award of attorneys' fees for the defendants in a published opinion by the California Court of Appeal.

• Obtaining a reversal of a trial court decision in a published Court of Appeal opinion that held that our client's fee collection practices do not violate the statutory prohibition on "percentage" gambling games in California.

• Obtaining affirmance of a trial court decision in favor of the San Francisco Forty-Niners upholding the San Francisco election for a new football stadium.

• Obtaining affirmance of a federal district court order enjoining California Proposition 208 that heavily regulated political campaigns and restricted campaign contributions and expenditures.

Representative Cases:

Cwynar v. City and County of San Francisco, 90 Cal.App.4th 637 (2001). We obtained reversal of a trial court decision in a landmark decision applying the Takings Clause to a San Francisco ordinance.

Hotel Employees & Restaurant Employees Int'l Union v. Davis, 21 Cal.4th 585 (1999). The California Supreme Court invalidated the Indian Gaming Initiative, the position we advocated in our Amicus Curiae brief.

San Francisco Forty-Niners v. Nishioka, 75 Cal.App.4th 637 (1999). We obtained an affirmance of a judgment rendered in favor of the San Francisco Forty-Niners that invalidated an initiative challenging their proposed new stadium.

Sutters Place v. George Kennedy, 71 Cal.App.4th 674 (1999). We obtained reversal of a judgment allowing our client to continue its card club collection procedures.

National Reform Party et al v. Democratic National Committee et al, 168 F.3d 360 (9th Cir. 1999). We obtained affirmance of dismissal of Ross Perot's multi-million dollar claim for alleged federal election law violations.

Comstock v. Nishioka (California Court of Appeal, December, 1998, unpublished opinion) We successfully represented the San Francisco Forty-Niners in obtaining affirmance of dismissal of an election contest challenging the vote on an initiative to build a new stadium.

Guthrey v. State of California, 63 Cal.App.4th 1108 (1998) We obtained affirmance of dismissal of numerous employment and discrimination claims and of an award of attorneys' fees of $64,000 to defendants.

County of San Bernardino, et al. v. City of San Bernardino, et al (1997) 15 Cal.4th 909 We represented the City of San Bernardino in this appeal involving emergency medical care issues.

Steisberg v. State of California, 80 F.3d 352 (9th Cir. 1996). The Court affirmed the dismissal of civil rights and due process claims against our client, the head of the CHP.

Rossi, et al. v. Brown, 9 Cal. 4th 688 (1995). The Supreme Court ruled that the initiative can be used to repeal or reduce taxes, the position we supported in an amicus curiae brief.

Colgate-Palmolive, Co. v. Franchise Tax Board, 512 U.S. 298, 129 L.Ed. 244, 114 S.Ct. 2268 (1994). The Supreme Court upheld the constitutionality of California's compulsory worldwide reporting system for allocating income of domestic-based multinational corporations, the position we supported in an amicus curiae brief filed on behalf of the Times Mirror Company and Litton Industries, Inc.

Digital Biometrics, Inc. v. Anthony, 13 Cal.App.4th 1145 (1993). In a multi-million dollar government procurement matter, the firm successfully represented the successful bidder who had been awarded a contract by the State of California.

Wilson v. Eu, 1 Cal.4th 707 (1992). The firm successfully represented the State Board of Equalization in this reapportionment case.

Yee, et al. v. City of Escondido, 503 U.S. 519, 118 L.Ed.2d 153 (1992). As counsel for the California Association of Realtors and National Association of Realtors, we filed an amicus curiae brief in the United States Supreme Court. The case involved issues concerning governmental taking of private property.

Title Insurance Company of Minnesota, et al. v. State Board of Equalization, 4 Cal.4th 715 (1992). We filed an amicus curiae brief in the California Supreme Court on behalf of the California Taxpayers Association in support of the title insurers in this tax case. The Court ruled in the title insurers' favor adopting much of the reasoning of the amicus brief.

Burns v. Wilson: In a two-week federal court jury trial, we successfully represented Governor Wilson's campaign committees against civil rights and constitutional law claims; affirmed unanimously by the Ninth Circuit in unpublished decision.

Chemical Specialties Manufacturers Assn., et al. v. Deukmejian, 227 Cal.App.3d 663 (1991). The firm was counsel for plaintiffs in this successful challenge to a statewide initiative, Proposition 105, which was held to violate the single-subject rule of the California Constitution.

Stangvik v. Shiley, Inc., 54 Cal.3d 744 (1991). As counsel for the California Taxpayers Association we filed an amicus curiae brief in the California Supreme Court in support of Shiley, Inc. The Court ruled unanimously in Shiley's favor in a landmark decision establishing standards for resolving forum non conveniens motions.

Lubin, et al. v. Wilson, et al., 232 Cal.App.3d 1422 (1991). We filed an amicus curiae brief on behalf of individual California voters and taxpayers and the California Republican Party. The case involved interpretation of constitutional and statutory provisions governing qualifications for holding public office. The Court of Appeal ruled unanimously in our favor.

Taxpayers Against Campaign Spending v. Fair Political Practices Commission, 51 Cal.3d 744 (1990). As counsel for amicus curiae, the firm successfully argued that Propositions 68 and 73, both dealing with campaign contribution reform were in conflict and that Proposition 73 prevailed under the California Constitution.

Mandicino v. Maggard, 210 Cal.App.3d 1413 (1989). As appellate counsel for a defendant against whom attorneys' fees had been awarded by the trial court the firm argued that the award was contrary to the First Amendment. The appellate court unanimously reversed the attorneys' fees award.

Steinkamp v. Teglia, 210 Cal.App.3d 402 (1989). As counsel to the Mayor of South San Francisco, the firm successfully challenged a general law city ordinance which limited city council members to two consecutive terms.

City of Gilroy v. State Board of Equalization, 212 Cal.App.3d 589 (1989). The firm represented the manufacturer of lottery tickets before the State Board of Equalization and in the trial and appellate courts.

California Trial Lawyers Assn. v. Eu, 200 Cal.App.3d 351 (1988). As counsel to initiative proponents in this original writ proceeding, the firm defended against a pre-election challenge to a proposed "no-fault" insurance statewide initiative which was held to violate the single-subject rule.

Kuhs v. Superior Court, 201 Cal.App.3d 966 (1988). After the trial court's issuance of a preliminary injunction which restrained processing of a referendum petition, the firm obtained issuance from the Court of Appeal of a writ of mandate construing an ambiguous Elections Code provision and holding that the referendum petition was timely filed.

Lungren v. Deukmejian, 45 Cal.3d 727 (1988). This case involved an original petition for writ of mandate to the California Supreme Court concerning the validity of the confirmation of the Governor's nominee for Treasurer. The court held that the California Constitution requires confirmation by both houses of the Legislature.

Jarvis, et al. v. Regan, et al., 833 F.2d 149 (9th Cir. 1987). As counsel for defendant Legal Services Corporation, the firm successfully filed a motion to dismiss a complaint which alleged violations of RICO, the First Amendment and the Legal Services Corporation Act. The firm obtained a unanimous affirmance in the U.S. Court of Appeals for the Ninth Circuit.

Davis v. Bandemer, 478 U.S. 109 (1986). Plaintiffs in this case alleged that a reapportionment plan for state legislative districts violated the rights of members of a political party to equal protection. As counsel for various amicus curiae, the firm advocated that claims of partisan gerrymandering are justiciable and the Supreme Court so held in a landmark decision on this issue.

Citizens Against Rent Control v. Berkeley, 181 Cal.App.3d 213 (1986). After successfully litigating the underlying case of Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) attorneys' fees were sought and awarded by the trial court. The Court of Appeal affirmed the award under California's "private attorney general" statute.

Fisher v. Berkeley, 37 Cal.3d 644 (1984); 475 U.S. 260 (1986). The firm represented a landlord challenging a local rent control measure on due process and equal protection grounds. The decision of the California Supreme Court established the important principle that rent control laws which indefinitely freeze landlord's profits will cause confiscatory results prohibited by the Constitution.

AFL-CIO v. Eu, 36 Cal.3d 687 (1984). In this case of the first impression, the court held that an initiative proposing an amendment to the United States Constitution to require a balanced federal government budget did not conform to the United States Constitution and exceeded the scope of the initiative power under the California Constitution.

Assembly v. Deukmejian, 30 Cal.3d 638 (1982). In this original mandamus proceeding, the firm successfully defended the right to include referenda on the statewide ballot which challenged the 1981 Congressional, Senate and Assembly reapportionment statutes. The court also held that the filing of the referenda suspended the effective date of the statutes.

Brosnahan v. Eu, 31 Cal.3d 1 (1982). Representing proponents of the Victims Bill of Rights initiative, the firm defended a pre-election petition for writ of mandate which sought to remove the initiative from the statewide ballot. The firm obtained a ruling from the Supreme Court denying the writ and allowing the initiative to appear on the ballot.

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981). As counsel for plaintiff in this First Amendment challenge to a local ordinance which limited contributions to ballot measure campaigns, the firm litigated the matter through the California trial and appellate courts and ultimately prevailed, 8 to 1, in the United States Supreme Court. The Court held that contribution limits in ballot measure elections violated the First Amendment. The Supreme Court's opinion has been cited repeatedly in subsequent First Amendment decisions.