10 Practical Lessons for Cities Facing Bankruptcy – From a New Ninth Circuit Ruling

Pointing the way

By: Donald L. Swanson

The Ninth Circuit Court of Appeals, in a new ruling, helps point-the-way for cities facing the complexities of Chapter 9 bankruptcy.

The Facts

On March 28, 2003, three citizens of Vallejo, California, have a violent encounter with two of Vallejo’s police officers.  A lawsuit ensues.

Then, the City of Vallejo files Chapter 9 bankruptcy and achieves a confirmed bankruptcy plan.

Then, the lawsuit results in a judgement for one of the plaintiffs.

The New Ninth Circuit Ruling

Legal wranglings about the judgment result in a September 8, 2016, ruling by the Ninth Circuit Court of Appeals in a case captioned Deocampo v. Potts (Case No. 14-16192).

The Ninth Circuit’s Deocampo v. Potts ruling addresses a narrow issue.  Yet, practical lessons for cities facing Chapter 9 bankruptcy can be gleaned from it.

10 Practical Lessons

Here are ten of such practical lessons.

Lesson # 1.  Mediation is an essential tool for resolving Chapter 9 cases.  As in other Chapter 9 cases, mediation plays a central role in achieving a confirmed plan in the City of Vallejo’s bankruptcy.

Lesson # 2.  There is no such thing as an “involuntary” Chapter 9 bankruptcy.  A Chapter 9 case can begin only by the municipality filing a voluntarily Chapter 9 petition, with authorization from the state and with a desire “to effect a plan to adjust” its debts (11 U.S.C. §§ 109(c)(4), 301 & 921).

Lesson # 3.  A city in bankruptcy, unlike a business debtor, cannot resolve its financial problems by liquidating its assets and terminating operations.  A city must continue operating and meeting the needs of its citizens.

Lesson # 4.  A city in bankruptcy can confirm it’s Chapter 9 plan without the consent of its creditors (11 U.S.C. §§ 109(c)(5) & 943).

Lesson # 5.  The primary plan confirmation standard in Chapter 9 is this: the plan must be, (i) “in the best interests of creditors,” and (ii) “feasible” (11 U.S.C. § 943(b)(7)).  This standard provides neither precision nor clarity.   The Ninth Circuit explains such imprecision and lack of clarity like this in Deocampo v. Potts:

“Our case law construing Chapter 9 is scant, and this appeal confronts us with a novel legal issue, of the kind that often surfaces when changing social and economic conditions awaken dormant statutes. But Chapter 9 has awakened, and we do not presume further disputes over its interpretive and practical complexities will remain long at rest.”

Lesson # 6.  When a Chapter 9 plan is confirmed, the City is discharged from debts that aren’t “excepted from discharge”  by the confirmed plan (11 U.S.C. § 944(b), (c)(1)).

Lesson # 7.  At least two large municipalities, Detroit and San Bernardino, have expressly discharged  the claims of citizens against their police officers for misconduct.

Lesson # 8.  If a city wants to make an attempt at discharging its police officers from misconduct liability, the city must make explicit provision for such a discharge in its Chapter 9 plan.

Lesson# 9.  An ambiguity in a bankruptcy plan drafted by the city is construed against the city.

Lesson # 10.  A city’s commitment, made after confirmation of its Chapter 9 plan, to defend and indemnify a police officer is unimpaired by the terms of its confirmed plan.


Thanks to the Ninth Circuit for pointing-the-way on various complexities of the newly-awakened Chapter 9 statutes.

Links to prior articles on this Chapter 9 city-bankruptcy subject are:

Part 1:  Police Abuse Claims and Municipal Bankruptcy — A New Report

Part 2:  Will Police Misconduct Liability Allow a City to File Bankruptcy? — “Insolvent” Eligibility Standard

Part 3:  Can a City File Bankruptcy to Deal With Police Misconduct Liability? — “Good Faith” Requirement


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