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Office of the County Counsel

County Counsels’ Association of California Dwight Herr Perpetual Award for Outstanding Appellate Practice

In 2000, the County Counsels’ Association of California Board of Directors created the “Dwight Herr Perpetual Award for Outstanding Appellate Practice” to recognize the Assistant or Deputy County Counsel who handled the most significant appellate court decision of the year.  The award is named after Dwight Herr, a former Santa Cruz County Counsel. 

 

Melissa Kiniyalocts recognized for work in DiCampli-Mintz v. County of Santa Clara 

In 2013, Lead Deputy County Counsel Melissa Kiniyalocts received the Dwight Herr Award in recognition of her work in DiCampli-Mintz v. County of Santa Clara, 289 P.3d 884 (Cal. 2012).   

In DiCampli, the plaintiff alleged that she delivered her government claim to a county risk management department and that a claims adjuster had actually received the claim.  The trial court granted the County’s motion for summary judgment, ruling that the plaintiff had not complied with the express claim presentation requirements of the Government Claims Act, which required delivery to the “clerk, secretary or auditor” of the county, or to the county’s governing body, or actual receipt by a statutorily designated person.   

The Sixth District Court of Appeal reversed the decision, holding that the plaintiff had “substantially complied” with the Act’s claim presentation requirements and could proceed with her lawsuit.   

Ms. Kiniyalocts successfully petitioned the California Supreme Court for review, coordinated amicus brief assistance through the California State Association of Counties and the League of Cities, and skillfully handled oral argument.   

Ms. Kiniyalocts’ efforts resulted in the Supreme Court unanimously ruling in agreement with the County’s arguments that, to protect local governments’ sovereign immunity and ensure they have adequate notice of allegations against them, any plaintiff suing a public entity in state court must strictly comply with the procedural claim presentation requirements of the California Government Claims Act statute.    

 

Lori Pegg and Marcy Berkman recognized for work in Spielbauer v. County of Santa Clara 

In 2009, former County Counsel Lori E. Pegg and former Deputy County Counsel Marcy Berkman received the Dwight Herr Award in recognition of their work in Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704.   

In Spielbauer, a deputy public defender was dismissed from his employment with the county for engaging in conduct unbecoming a county employee by making deceptive statements to a judge and committing insubordination by refusing to answer questions about the incident during the County’s employment investigation on grounds that his answers might incriminate him.  He sought a writ of mandate to set aside the County’s decision.   

The California Supreme Court agreed with the County’s position, and held that a public employee may be compelled, by threat of job discipline, to answer questions about the employee’s job performance, so long as the employee is not required, on pain of dismissal, to waive the constitutional protection against criminal use of those answers.   

The California Supreme Court’s decision was based in large part on the outstanding briefing prepared by Ms. Berkman and Ms. Pegg, and Ms. Berkman’s efforts at oral argument.  In addition, Ms. Berkman and Ms. Pegg organized and coordinated an impressive amicus effort, including briefs from the Attorney General, the California State Association of Counties and League of California Cities, the California Police Chiefs and Sheriffs Associations, the California Public Employers Labor Relations Association, the Peace Officers’ Research Association, and the School Boards Association.