Metropolitan News-Enterprise


Friday, November 29, 2002


Page 1


High Court Limits Right to Recover Money Damages For Violations of California Constitution


By KENNETH OFGANG, Staff Writer/Appellate Courts


Violations of the state Constitution do not necessarily create a right to money damages, the state Supreme Court ruled yesterday in a pair of cases.

Citing Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, Chief Justice Ronald M. George said a “constitutional tort” remedy will lie only in limited circumstances.

In order to determine whether to allow such a recovery, he explained, the court must consider the history of the constitutional provision, the intent of those who enacted it, the existence or non-existence of a common law history of granting such a remedy, the availability of alternative relief, and public policy considerations such as cost and deference to legislative judgment.

Employing those criteria, the justices unanimously upheld Court of Appeal rulings tossing out two suits. One was by a professor who claimed that the University of California denied him due process by removing him as chairman of his department based on unproven allegations, the other by a former Glendora councilwoman who accused her ex-colleagues of violating her free-speech rights by denying her access to materials and freezing her out of the legislative process because they disagreed with her views.

In the first suit, UC Richard Katzberg, former chairman of the radiology department at UC Davis Medical Center, challenged the circumstances of his 1996 dismissal from that post. The university’s action followed an investigation into the department’s alleged retention of rebates from medical equipment vendors that should have been transferred to the medical center’s general funds.

Katzberg, who remained a tenured faculty member and a staff doctor at the medical center, acknowledged that the chair was an at-will position, so he had no property interest in the job. But he argued that being terminated for alleged financial improprieties stigmatized him, thus depriving him of “liberty” without due process in violation of Art. I, Sec. 7 of the state Constitution.

Lower courts ruled that the university’s offer of a “name-clearing” hearing, made more than three years after Katzberg was terminated as chair, satisfied due process and that Katzberg lacked a claim for damages.

George agreed.

Prior to 1974, the chief justice explained, California had no explicit constitutional right to due process other than in criminal cases. Nothing in the ballot materials from the 1974 vote in which the present language of Art. I, Sec. 7(a) was added indicates that voters intended to allow damages as a remedy, George said, nor can such an intent be inferred from the text of the clause itself.

George distinguished cases in other states allowing damages for violation of state search-and-seizure provisions. Those rulings have generally been based on English and state common-law history, the chief justice explained, adding that no state has apparently allowed damages for violation of its due process clause.

Katzberg, the chief justice added, had an adequate remedy in the form of a mandate action under Code of Civil Procedure Sec. 1085. If such an action had been brought, George noted, Katzberg could have quickly obtained a “name-clearing” hearing and might have been able to obtain damages under Sec. 1095.

He also could have sued for defamation, the chief justice reasoned.

In the Glendora case, ex-Councilwoman Christine Degrassi alleged that a three-member council majority, the city manager, and the city’s law firm—Burke, Williams & Sorensen excluded her from council meetings, deprived her of notice of meetings, denied her access to information, and generally discouraged, obstructed, and interfered with her participation as a council member.

 These actions, she alleged, were in “violation of her rights to Free Expression under Article I, Section 2 of the California Constitution.” Los Angeles Superior Court Judge Karl Jaeger ruled, as did the Court of Appeal, that the allegations did not support a claim for damages.

George concurred. As in Katzberg’s case, he said, the history of the constitutional provision contains nothing to indicate that voters intended to allow suits for damages.

The chief justice rejected an argument by Pomona attorney, Robert L. Kern, who represented Degrassi, that the voters who enacted the provision must have had a reasonable expectation that it could be enforced through a suit for damages. Unless such a right is recognized, Kern contended, “the courts must at least in part accept responsibility for the continuing problems of [legislative] minorities and corruption in local governments.”

George dismissed the submission as “rhetoric,” saying it could not substitute for evidence of legislative intent to permit an action for damages.

Even in the absence of such intent, the chief justice explained, public policy might recognize a right to monetary compensation for violation of the state’s free-speech clause. But such a finding ought not be made in the context of a city council, he said, given the alternatives available.

Degrassi, he reasoned, could have sued under Sec. 1085 or the Brown Act, or simply relied on the public visibility and political prerogatives that her council seat gave her.

Justices Joyce L. Kennard, Kathryn M. Werdegar, Ming Chin, and Carlos Moreno joined in both opinions.

Justice Janice Rogers Brown, joined by Justice Marvin Baxter, wrote separately. Brown concurred in both results, but said it was improper and unnecessary for the high court to give up its “analytical independence” by importing Bivens into the state’s jurisprudence when all it needed to do was affirm the decisions based on the voters’ lack of intent to permit damage actions for violations of the two provisions at issue.

Attorneys who argued before the high court in Katzberg v. Regents of the University of California, 02 S.O.S. 5786 were Dan Siegel of Oakland for the plaintiff and Paul D. Fogel of San Francisco for the university.

Degrassi v. Cook, 02 S.O.S. 5799, was argued by Kern for the plaintiff; Terry Francke of Sacramento for the plaintiff’s amicus, the California First Amendment Coalition; Richard R. Terzian of the Los Angeles firm of Bannan, Green, Frank & Terzian for the city officials, and Daniel P. Barer of Century City’s Pollak, Vida & Fisher for Burke, Williams, & Sorensen.

The case is Katzberg v. Regents of the University of California, 88 Cal.App.4th 147.


Copyright 2002, Metropolitan News Company