Pro Per Persuades C.A. Action Was Wrongfully Scrapped

Friday, December 9, 2016

Page 1

Pro Per Persuades C.A. Action Was Wrongfully Scrapped

Presiding Justice O’Leary Says Challenge to Student’s Suspension Must Be Reinstated, Contention That Private Group May Not Have ‘Monopoly’ on Locker Room Is Valid

By a MetNews Staff Writer

A pro per appellant has scored a double win in the Court of Appeal, gaining a pronouncement that what the record shows so far is that his two-year suspension from Golden West College in Huntington Beach appears to be in defiance of his right to procedural due process, and that he’s correct that the college breached a statute in restricting access to the men’s locker room to members of a private swimming club.

The opinion, handed down late Tuesday afternoon, reverses a judgment of dismissal of John Merzweiler’s action against the college and the Coast Community College District. It affirms the dismissal, however, of causes of action against individuals who carried out the policies, saying that the plaintiff’s quarrel is not really with them.

The case was remanded for further proceedings.

Merzweiler has been a student at Golden West, off and on, since 1972. It was in 2013 that his ire was raised by the school barring students from using the locker room, renting it to www.GWCswim.com, a private group, for its exclusive use.

The plaintiff was accustomed to showering there and otherwise utilizing its facilities. He was currently enrolled in a tap dance class which, the appeals court observed, can result in perspiration.

To no avail, Merzweiler pressed the point that Education Code §82537, while permits a community college to rent out facilities, provides that “[n]o use shall be granted in a manner that constitutes a monopoly for the benefit of any person or organization.” He appeared before the governing board of the college district and read the provision aloud.

On Aug. 27, 2013, the student, who is a real estate broker, submitted a claim against the district, based on §82537. His claim was rejected.

Suspension Imposed

One week later, Janet Houlihan, the dean of students, sent Merzweiler a letter saying she had learned of two instances of disruptive behavior on his part and had been unable to contact him, and that he failed to show up for a scheduled meeting with her. She said he was under suspension “until you meet with me to discuss the incidents.”

The next day, Houlihan dispatched another letter, telling Merzweiler that based “on numerous concerns expressed regarding your behavior on campus, and after multiple discussions with you in my office where you displayed anger and disruptive behavior,” he was immediately suspended. He was told to secure a clearance letter from a mental health professional, which he did.

However, a letter of Oct. 4 from the president of the college, Wes Bryan, said the certification was inadequate, warning Merzweiler that he could be arrested for a misdemeanor if he came on the campus.

While this was going on, the district sought a restraining order against him in Orange Superior Court, which was denied. The judge found that the only cognizable basis for the petition was a tiff Merzweiler had with a coach over having brought his bicycle into the locker room, with the judge finding the coach equally at fault for the contretemps.

On Oct. 21, Houlihan sent Merzweiler another letter, this one saying she intended to suspend him for two years, specifying charges, and giving him until 9 a.m. on Oct. 25 to provide a response. He did not reply, but brought an action in mandate on April 7, 2014.

Procedural Due Process

Presiding Justice Kathleen E. O’Leary of the Fourth District’s Div. Three wrote the opinion reversing the judgment of dismissal.

She said:

“A student’s right to procedural due process is supported by the United States Constitution and the Constitution of the State of California, as well as statutory and case law. Both the federal and state Constitutions compel the government to afford persons due process before depriving them of any property interest.”

Due process was lacking in connection with the initial suspension, she declared, pointing to the lack of adequate notice of the charges. O’Leary noted that the three letters preceding the one on Oct. 21 contained no “articulation of the factual basis for Merzweiler’s alleged misconduct.”

The Oct. 4 letter from Bryan—who was not mentioned by name in the opinion—“only makes reference to vague intimations of ‘disruption’ without giving the factual basis for its conclusions,” in violation of dictates of a 1973 California Supreme Court opinion, O’Leary said.

Houlihan’s Oct. 21 letter does list 18 “grounds” for suspending Merzweiler, she acknowledged, but said the recitation “bears a strong resemblance to list of student code of violations held to be insufficient” in a Court of Appeal decision earlier this year.

Hearing Not Afforded

O’Leary also faulted the college for its denial of due process by providing Merzweiler with no hearing on the charges, remarking:

“The most he was given was an opportunity to meet and confer with Houlihan.”

Under Education Code §66017, a public institution of higher learning may discipline a student “who, after a prompt hearing by a campus body, has been found to have willfully disrupted the orderly operation of the campus.” O’Leary observed:

“We need not decide whether a ‘campus body’ must necessarily consist of more than one person, or whether a college might delegate the authority to consider a suspension to a given administrator acting as a one-person ‘campus body.’…Regardless of whether one person can be a ‘campus body’ under section 66017, it is clear that to comport with due process that ‘body’ must be unbiased….The body making the decision on student discipline must make a fair and unbiased attempt to determine what happened and what, if anything, is an appropriate consequence. The body cannot consist of a single individual who has evidenced that he or she has pre-determined the facts and the consequence. This record demonstrates Houlihan clearly had her mind made up on the facts and the appropriate consequence from the beginning.”

Exhaustion of Remedies

The district argued, in its brief, that Merzweiler failed to exhaust administrative remedies, saying:

“Appellant has not made the necessary allegations to support the conclusion that appellant had not received all process which was due.

“…[A]ppellant was invited to discuss the contemplated suspension, but appellant has not alleged doing so. Thus, it appears that appellant has failed to exhaust the available administrative remedies. Appellant cannot positively state what DISTRICT would have decided had appellant timely responded.”

O’Leary responded that the initial letter from Houlihan telling Merzweiler he was under suspension until he met with her did not create an administrative remedy, explaining:

“[B]eing invited to come in for a chat with an administrator when a long suspension or expulsion is contemplated for misconduct cannot be reasonably characterized as any sort of administrative remedy.”

Houlihan’s letter, mailed on Oct. 21, inviting a response by mid-morning on Oct. 25, “was similarly deficient,” the presiding justice declared, setting forth:

“The letter expressly gave Merzweiler only one day, or possibly two, to prepare a written rebuttal to [the] lengthy list of student code violations. Such a short time period for rebuttal cannot be remotely construed as fair play.”

Futility Exception

She continued:

“Second, this case fits the relatively rare ‘futility’ exception to the doctrine of administrative remedies. On this record it is clear [Golden West]’s administration already had its mind made up before imposing the two-year suspension on Merzweiler on October 21….

O’Leary said that “[p]erhaps the most telling fact in regard to futility” was Bryan’s Oct. 4 letter rejecting “the psychologist’s evaluation of Merzweiler without stating any reason.”

A final reason for finding futility, the jurist said, is that, “on this record, we actually cannot say Merzweiler had any administrative remedies to exhaust.” She elaborated that “we do not see where” the college “ever asked the trial court to take judicial notice of a set of administrative rules that, for sake of argument, might have made an informal meet-and-confer with the accusing administrator a prerequisite to the statutorily guaranteed hearing in front of a neutral ‘body’ under section 66017.”

Aside from reinstating Merzweiler’s action in administrative mandamus challenging his suspension, the opinion reinstates his challenge to the college barring students, other than members of a private swimming club, from the locker room. O’Leary said with respect to Merzweiler complaint that the leasing agreement “violates section 82537, which expressly precludes giving a monopoly over community college facilities to a private group” that:

“He is right.”

The case is Merzweiler v. Houlihan, G052806.