Court of Appeal says gang database appeals should not be limited to superior court

An appellate court in San Diego has decided to review a petition seeking to remove an individual's name from California's gang member database, paving the way for similar petitions to be heard by higher courts should they be denied by trial judges.

Morrison & Foerster LLP litigator Suzanne P. Marinkovich and San Diego attorney Danielle R. Iredale celebrated a procedural victory last week after the 4th District Court of Appeal agreed to review their client's reclassified AB 2298 petition, a mechanism for individuals hoping to get off the CalGang list.

Such petitions, which are filed after a request made to a police department for removal is denied, have been routinely classified as limited, meaning any appeal would stay within the bounds of the superior court. However, in September, Justice Joan K. Irion ordered San Diego Superior Court Judge Laura H. Parsky to reclassify one of these petitions as unlimited or show cause as to why she had denied the petitioner's request to do so.

The judge opted for the former approach, simultaneously reclassifying another petition before her as unlimited. The petitioner in the second case is being represented by the American Civil Liberties Union.

MARINKOVICH

"All these petitions in California have been classified as limited, but we found the statute didn't have key language to say they need to be classified as limited," Marinkovich said. "We paused and challenged this because having the first appeal gives us the opportunity to create precedent for everyone else."

AB 2298 took effect Jan. 1, 2017 and, according to data collected by the state justice department, there were 16 requests for removal made that year. One was granted.

Marinkovich said at the trial level the government offered evidence against her client, Tyrone Simmons, in chambers. She said he is still unaware of why his petition for removal was denied.

The San Diego city attorney's office did not respond to requests for comment, but court documents show Simmons had, at some point, admitted to being in a gang and was seen "affiliating with documented gang members."

The city attorney did not oppose Simmons' request for reclassification, but Parsky questioned her ability as a superior court judge to adjudicate the issue. With new marching orders, however, she was quick to reclassify a second petition pending before her.

"We're pleased that the superior court reclassified the case to allow for review at the Court of Appeal, which both parties agreed is the appropriate venue for reviewing superior court decisions on CalGang petitions," the second petitioner's attorney, Jonathan P. Markovitz of the ACLU, wrote in an email. "Because this is a new process, it's important to identify and correctly resolve these procedural questions early on, so that cases that follow have a clearer path forward."

IREDALE

Marinkovich said the immediate precedential effect will only be felt in the 4th District, but she and her team are alerting colleagues statewide, hoping more writs are made to appellate divisions outside San Diego. "Hopefully we can create a wave that way," she said.

According to the justice department, there were 103,813 names on CalGang in December 2017. In her brief, Marinkovich reminded the court of its possible impact on that significant population: "Proceeding in an inappropriate forum may ultimately deprive this court from setting precedent on a matter of statewide public importance -- the right to clear one's name from a gang database, removing not only the stigma that stains his reputation but also the perpetual negative consequences that follow."