CALIFORNIA TEACHERS ASSOCIATION et al., Plaintiffs and Respondents, v. THE STATE OF CALIFORNIA et al., Defendants and Appellants.
No. S067030
Supreme Court of California
May 10, 1999
20 Cal.4th 327 | 84 Cal. Rptr. 2d 425 | 975 P.2d 622
Daniel E. Lungren and Bill Lockyer, Attorneys General, Floyd D. Shimomura, Assistant Attorney General, Linda A. Cabatic, Michelle Gluck, Eileen Gray and Karen Leaf, Deputy Attorneys General, for Defendants and Appellants.
Susan E. Diedrich and John L. Bukey for the Education Legal Alliance as Amicus Curiae on behalf of Defendants and Appellants.
Tuttle & McCloskey, Ernest H. Tuttle III, Kay M. Tuttle and Daniel T. McCloskey for Plaintiffs and Respondents.
Catherine I. Hanson and Astrid G. Meghrigian for California Medical Association as Amicus Curiae on behalf of Plaintiffs and Respondents.
GEORGE, C. J.—
We agree with the trial court and Court of Appeal that this cost provision is unconstitutional. The imposition upon such a teacher of the open-ended cost of the adjudicator conflicts with the centuries-old common law tradition that the salaries of judges are to be borne by the state, and not by the litigants. By its terms, the cost provision at issue in the present case—which is not limited to frivolous hearing requests but applies whenever the teacher ultimately is suspended or dismissed, without regard to the reasonableness of the teacher‘s position—advances no legitimate governmental interest. Furthermore, the state interest that is claimed to be advanced by this cost provision does not justify the risk of error posed by the provision, because substitute procedures limiting the imposition of costs to teachers engaging in frivolous tactics would conserve public resources while safeguarding the substantial liberty and property interests at stake in these proceedings.
I
Plaintiff Gary Daloyan is a permanent teacher employed by a public school district in San Joaquin County. The district notified plaintiff of its intent to dismiss him for evident unfitness for service and immoral conduct. (
Hearings to determine whether permanent public school teachers should be dismissed or suspended are held before the Commission on Professional
Following a 13-day hearing, the Commission unanimously determined that the district had failed to prove its charge that plaintiff engaged in immoral conduct, but also concluded that the district had proved plaintiff evidently was unfit for service. Based on the latter charge, the Commission determined that plaintiff should be dismissed. Neither plaintiff nor the district sought judicial review of the Commission‘s decision. (
After his dismissal, the Department of General Services billed plaintiff for $7,747.97, representing half the cost of the administrative hearing, including the cost of the administrative law judge, as specified in
In a divided decision, the Court of Appeal affirmed. The majority opinion reasoned that the district affirmatively was attempting to strip plaintiff of his property interest, and that the hearing before the Commission was the only effective means of resolving the dispute. Unlike litigants who seek state-paid
Accordingly, the Court of Appeal held that the cost provision placed too great a burden upon the exercise of the right to due process. The court also concluded that the state has no legitimate interest in denying a teacher a meaningful opportunity to be heard before termination—no matter how meritless the teacher‘s defense may prove to be. The dissenting opinion emphasized that plaintiff did receive a hearing and that the record reveals nothing regarding his financial condition, and concluded that the hearing costs are neither arbitrary nor unlimited because they are directly related to the cost of the proceeding.
We granted the Controller‘s petition for review.
II
“As [the United States Supreme] Court has stated from its first due process cases, traditional practice provides a touchstone for constitutional analysis. [Citations.]” (Honda Motor Co. v. Oberg (1994) 512 U.S. 415, 430 [114 S.Ct. 2331, 2339, 129 L.Ed.2d 336].) Thus, in considering whether
The first state constitutions following the American Revolution abolished the fee system of the colonial courts and provided that judges instead should receive fixed salaries. (Pound, Organization of Courts (1940) pp. 156, 193.) As one federal appellate court recently stated with regard to the vindication of statutory rights: “[W]e are unaware of any situation in American jurisprudence in which a beneficiary of a federal statute has been required to pay for the services of the judge assigned to hear her or his case.” (Cole v. Burns Intern. Security Services (D.C. Cir. 1997) 105 F.3d 1465, 1484 [
Litigants may be required to pay fixed, incidental court fees that indirectly subsidize the cost of judges, such as filing fees. (E.g.,
The established tradition of the public funding of judicial compensation undoubtedly arises from the central role of our judicial system in society. “Perhaps no characteristic of an organized and cohesive society is more fundamental than its erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them to govern their affairs and definitively settle their differences in an orderly, predictable manner. Without such a ‘legal system,’ social organization and cohesion are virtually impossible; with the ability to seek regularized resolution of conflicts individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. . . . [¶] American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. It is to the courts, or other quasi-judicial official bodies, that we ultimately look for the implementation of a regularized, orderly process of dispute settlement. Within this framework, those who wrote our original Constitution, in the Fifth Amendment, and later those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due process in the operation of this system. Without this guarantee that one may not be deprived of his rights, neither liberty nor property, without due process of law, the State‘s monopoly over techniques for binding conflict resolution could hardly be said to be acceptable under our scheme of things. Only by providing that the social enforcement mechanism must function strictly within these bounds can we hope to maintain an ordered society that is also just.” (Boddie v. Connecticut (1971) 401 U.S. 371, 374-375 [91 S.Ct. 780, 784, 28 L.Ed.2d 113], italics added.)
In Boddie v. Connecticut, supra, 401 U.S. 371, the high court considered filing fees as applied to indigents seeking a divorce. Because the sole means of obtaining a divorce was through the courts, and the proceeding implicated fundamental interests related to marriage, the court held that refusing to allow indigents access was the equivalent of denying them an opportunity to be heard, in violation of the guarantee of due process, absent a sufficient countervailing justification for the state‘s action. (Id. at pp. 380-381 [91 S.Ct. at pp. 787-788].) Though finding a rational relationship between the use of court fees and the state‘s interests in discouraging frivolous litigation and allocating scarce resources, the court found those considerations to be insufficient to override the interest of the indigent individuals in having access to the only means for dissolving their marriage. (Cf. United States v. Kras (1973) 409 U.S. 434 [93 S.Ct. 631, 34 L.Ed.2d 626] [finding no constitutional right to a waiver of filing fees in bankruptcy proceedings, because the personal interest at stake is not fundamental and bankruptcy is not the only method available to protect that interest]; Ortwein v. Schwab (1973) 410 U.S. 656 [93 S.Ct. 1172, 35 L.Ed.2d 572] [same, with regard to proceedings for judicial review of administrative agency‘s welfare benefits determinations].)
In the present case, the state not only has monopolized the process of determining whether permanent public school teachers should be dismissed or suspended, but it also is the entity seeking to deprive teachers of their constitutionally protected liberty and property interests and, accordingly, is
The circumstance that the hearing pursuant to
The provision in
III
Because plaintiff does not challenge the cost provision in
In discussing the standard for evaluating a facial constitutional challenge to a statute, we stated in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069 [40 Cal.Rptr.2d 402, 892 P.2d 1145]: “A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] . . . ‘To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act‘s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’ [Citations.]” (Id. at p. 1084, original italics and ellipsis.)5
The imposition of a cost or risk upon the exercise of the right to a hearing is impermissible if it has ” ‘no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them’ [citation] . . . .” (Fuller v. Oregon (1974) 417 U.S. 40, 54 [94 S.Ct. 2116, 2124, 40 L.Ed.2d 642].) The statutory cost provision must have a real and substantial relation to a proper legislative goal. (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1125 [278 Cal.Rptr. 346, 805 P.2d 300].) Accordingly, if
The guarantee of procedural due process—a meaningful opportunity to be heard—is an aspect of the constitutional right of access to the
We have emphasized the importance of free access to the courts as an aspect of the First Amendment right of petition. Our unanimous decision in Pacific Gas & Electric Co. v. Bear Stearns & Co., supra, 50 Cal.3d at pages 1130-1137, noted a number of limitations upon civil liability for exercising this right. “We assure all participants in litigation . . . ‘the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions’ by extending a broad privilege for publications made in the course of litigation. [Citations.] The policy of encouraging free access to the courts is so important that the litigation privilege extends . . . [citation] . . . to any action except one for malicious prosecution. [Citations.]” (Id. at pp. 1132-1133, fns. omitted.) The bringing of a colorable claim is not actionable as malicious prosecution. (Id. at p. 1131.) Similarly, a litigant is not subject to antitrust liability for petitioning any branch of government unless the petition is a sham, brought without probable cause and for the purpose of harassment. State civil law cannot constitutionally impose liability unless the “defendant‘s pursuit of judicial and administrative relief was so clearly baseless as to amount to an abuse of process. [Citations.]” (Id. at p. 1134.) “Unless the complaints and lawsuit were a sham, in the sense that they involved baseless claims that were not genuinely aimed at securing the government action petitioned for, they were privileged. [Citations.]” (Id. at pp. 1134-1135.)
The state does not contend that the purpose of
Thus, the Legislature has determined, as a general matter, that litigants should not be penalized for pursuing an administrative hearing simply because their position ultimately does not prevail. Nevertheless, in the present case the state has identified its interest in
At the hearing in the trial court in the present case, the judge struggled to comprehend the interest asserted by the state as underlying
The same purpose is reflected in the brief of amicus curiae Education Legal Alliance, which has suggested that requiring ultimately unsuccessful
The state has no legitimate interest in discouraging a teacher from invoking the right to present, to an impartial adjudicator, evidence and nonfrivolous contentions that some or all of the district‘s charges are without merit, and that the teacher should not be dismissed or suspended. The administrative hearing mandated by
The Commission has broad discretion in determining what constitutes unfitness to teach and immoral conduct, and whether dismissal or suspension is the appropriate sanction. (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 220-222 [246 Cal.Rptr. 733, 753 P.2d 689].) “[A] disciplinary discharge often involves complex facts and may require a sensitive evaluation of the nature and seriousness of the misconduct and whether it
The state has a constitutional obligation to provide a hearing to decide whether dismissal or suspension is appropriate. A teacher also has a right to an opportunity to respond to the particular charges asserted by the district and to clear his or her name. An opportunity to challenge the state‘s factual determinations before an impartial and disinterested decision maker satisfies the ” ‘two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process.’ [Citations.]” (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at p. 1121.) Implicit in this right is the self-evident notion that the Commission may decide in some cases that the teacher should be dismissed or suspended, and in others that the teacher should not. Even in cases resulting in dismissal or suspension, the Commission may determine that the district has not proved all of the charges against the teacher, thus at least partially vindicating the teacher‘s interest in clearing his or her name. To discourage the exercise of the right to a hearing in a case in which the ultimate administrative or appellate decision may result in the dismissal or suspension of a teacher is to discourage the exercise of that right in every case.
The circumstances that the statute incidentally may deter some teachers whose positions happen to be frivolous, that the state might have written the law differently to advance only legitimate goals, or that the provision does not altogether preclude teachers from obtaining hearings, do not render the statute facially valid. The actual standard contained in the statute for imposing costs is unconstitutional. The United States Supreme Court has explained that procedural due process rules ” ‘are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.’ [Citation.] . . . Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.” (Santosky v. Kramer (1982) 455 U.S. 745, 757 [102 S.Ct. 1388, 1397, 71 L.Ed.2d 599], original italics, fn. omitted.) Thus, for example, a statute authorizing a criminal conviction under a clear and convincing standard of proof would be invalid on its face, even though there would be some cases, decided under that standard, in which the proof would satisfy the proper standard of proof beyond a reasonable doubt. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282 [113 S.Ct. 2078, 2082-2083, 124 L.Ed.2d 182] [instructional error permitting conviction under a deficient standard of proof is reversible per se].)
Similarly, because
In sum, unless the teacher‘s position is frivolous, there is no such thing as a “meritless contest” that legitimately warrants imposition of a significant cost intended to discourage hearing demands. Under the challenged statute, teachers possessing colorable arguments who exercise their right to a hearing are subjected to a penalty more severe than that typically imposed on defeated parties. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 648.) The legislative purpose of imposing the cost of the adjudicator upon teachers to deter them from requesting administrative hearings on nonfrivolous grounds is not a legitimate one.
Because the state‘s interest reflected in the actual language of
IV
Even if the state‘s goal of discouraging ultimately unsuccessful hearings were a legitimate one—or if we could ignore that goal altogether and focus instead upon the state‘s interest in conserving public resources or
The facial validity of the procedures for terminating public employees depends upon a balancing of the competing interests at stake. These include the private interest affected by the official action, the government‘s interest, and the risk of an erroneous deprivation of the private interest, including the probable value, if any, of additional or substitute procedural safeguards and the burdens such safeguards would entail. (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at pp. 542-543 [105 S.Ct. at pp. 1493-1494]; Mathews v. Eldridge (1976) 424 U.S. 319, 334-335 [96 S.Ct. 893, 902-903, 47 L.Ed.2d 18].)
Even when considering a facial challenge to a procedural scheme, a court must determine whether the procedures “provide sufficient protection against erroneous and unnecessary deprivations of liberty” and property. (Schall v. Martin (1984) 467 U.S. 253, 274 [104 S.Ct. 2403, 2415, 81 L.Ed.2d 207].) The balancing analysis set forth in cases such as Mathews v. Eldridge, supra, 424 U.S. 319, requires an examination of procedures to determine whether they assure a minimum overall standard of fairness in the particular context. “[P]rocedural due process rules are shaped by the risk of error inherent in the generality of cases, not the rare exceptions.” (Id. at p. 344 [96 S.Ct. at p. 907].) In considering facial challenges to procedural schemes, the United States Supreme Court balances the competing interests to ascertain whether the procedures meet due process requirements—not simply whether there are instances falling within the scheme in which a particular result would be constitutionally permissible. (E.g., Cleveland Board of Education v. Loudermill, supra, 470 U.S. at pp. 536-537, 542-546 [105 S.Ct. at pp. 1490-1491, 1493-1495].) Thus, although we may not invalidate a statute simply because in some future hypothetical situation constitutional problems may arise (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084), neither may we ignore the actual standards contained in a procedural scheme and uphold the law simply because in some hypothetical situation it might lead to a permissible result. For example, a procedure that mandated dismissal of a teacher whenever the principal of the school appeared at the hearing and accused the teacher of serious misconduct would result in some, and perhaps many, justified terminations. It does not follow, however, that this procedure would be facially valid simply because we may not assume principals’ accusations generally will be groundless.
With these principles in mind, we shall examine the relevant interests at stake.
“First, the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. [Citations.] While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job. [Citation.]” (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 543 [105 S.Ct. at p. 1494].) Indeed, teachers dismissed for immoral conduct suffer revocation of their teaching certificates. (
The second factor in this procedural due process analysis is the state‘s interest in the expeditious removal of unsatisfactory teachers and the avoidance of administrative burdens. The state does not appear to be concerned with delay occasioned by demands from teachers for hearings. If a teacher poses a risk of harm to students, such as where charges involve serious misconduct, the teacher may be suspended immediately. (
The third factor we consider is the risk of an erroneous termination under the procedures adopted by the state. Section 44944(e) poses a substantial risk of erroneous terminations, because it deters teachers with colorable claims from obtaining a hearing and vigorously presenting their side of the case. The possibility that a prevailing teacher might recover attorney fees does little to reduce the risk of error. The prospect of recovering attorney fees is difficult to view as a reward or an encouragement for demanding a hearing, because this provision simply leaves the teacher in the same financial condition in which he or she began. Assessing half the cost of the administrative law judge, on the other hand, imposes an indeterminate, substantial, additional debt upon the teacher at the very time he or she has been deprived of a job. Therefore, the risk that teachers will forgo hearings or limit their defense against the district‘s charges is significant.
In connection with the risk of erroneous results, we also must consider the “probable value, if any, of additional or substitute procedural safeguards” and the “fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v. Eldridge, supra, 424 U.S. at p. 335 [96 S.Ct. at p. 903].) The statute contains no procedures for assessing whether the teacher‘s position has potential merit or whether the costs of the hearing exceed the teacher‘s ability to pay. We may not assume on this facial challenge that teachers who are facing the loss of their jobs will be able to pay half the cost of the hearing, nor may we assume that the cost provision will not have a chilling effect upon teachers with colorable claims. The question is whether the procedural scheme provides adequate protections against erroneous terminations resulting from a teacher‘s failure to exercise his or her right to a meaningful hearing. It provides none.
The suggestion that any constitutional infirmities in section 44944(e) should be challenged on a case-by-case basis, as applied to particular teachers, ignores the requirements of Mathews v. Eldridge, supra, 424 U.S. 319, which requires that the procedural scheme itself be adequate to ensure a meaningful hearing. It would be illogical to expect or require a teacher to file an action alleging that he or she lacks the resources to pay the costs of the administrative hearing, because the teacher also would lack the resources to litigate the threshold matter in superior court. The availability of an as-applied challenge therefore is no safeguard against the chilling effect of the cost provision. Furthermore, one of the primary purposes of section 44944 was to remove the initial disciplinary hearing from the jurisdiction of the superior court, thereby reducing the burden and costs of litigating dismissal proceedings. (Legis. Counsel‘s Dig., Assem. Bill No. 293, 3 Stats. 1971 (Reg. Sess.) Summary Dig., p. 54.) It is difficult to imagine that the Legislature would have preferred multiple superior court actions to ascertain whether application of the cost provision is unconstitutional in each particular case. Finally, any action challenging section 44944(e), as applied to a particular teacher, also would require an assessment of the probable merit of the teacher‘s position. As mentioned previously, such an assessment is virtually impossible unless the teacher‘s position is frivolous, and existing procedures already authorize sanctions for frivolous tactics. A superior court
In considering the facial validity of a measure that burdened litigants’ access to the courts, the United States Supreme Court rejected arguments similar to those made by the state in the present case. In Lindsey v. Normet (1972) 405 U.S. 56 [92 S.Ct. 862, 31 L.Ed.2d 36], the court reviewed Oregon‘s statutory scheme for unlawful detainer actions. Under the statute, a landlord could evict a tenant after a summary judicial proceeding at which the sole issue was whether the tenant had failed to pay rent. The tenant could appeal such a ruling and obtain a full trial on the merits only by posting security in an amount equal to twice the rental value of the property from the commencement of the action to final judgment. In Lindsey, before statutory eviction proceedings began, a number of tenants filed a class action in federal district court, seeking a declaratory judgment that the statutory bond requirement was unconstitutional on its face. (Id. at pp. 58-64 [92 S.Ct. at pp. 866-869].) The high court held the statute unconstitutional. Without considering the particular financial circumstances of the tenants, the precise amount of the bond required, or the extent to which tenants chose not to appeal because of the bond requirement, the high court stated: “[T]he State has not sought to protect a damage award or property an appellee is rightfully entitled to because of a lower court judgment. Instead, it has automatically doubled the stakes when a tenant seeks to appeal an adverse judgment in an [unlawful detainer] action. The discrimination against the poor, who could pay their rent pending an appeal but cannot post the double bond, is particularly obvious. For them, as a practical matter, appeal is foreclosed, no matter how meritorious their case may be. The nonindigent [unlawful detainer] appellant also is confronted by a substantial barrier to appeal faced by no other civil litigant in Oregon.” (Id. at pp. 78-79 [92 S.Ct. at p. 877], fn. omitted, italics added.)
Similarly, in the present case, both indigent and nonindigent teachers are confronted with a substantial barrier to an administrative hearing faced by no other public employee—or litigant—in the state. The circumstance that the liability for and cost of the administrative law judge is not determined until the hearing is completed and all appeals exhausted only heightens the chilling effect of this barrier. As the Court of Appeal stated: “The amount of the obligation is open-ended. After requesting a hearing, an accused teacher has little or no control over the costs to be imposed. The teacher cannot limit the school district‘s prosecution of the charges and can limit his or her
In the analogous context of the state‘s recoupment of attorney fees paid on behalf of indigent criminal defendants, courts have held that the facial validity of such provisions requires a waiver of costs for those defendants unable to pay, so that a defendant will not be deterred from exercising the right to appointed counsel. (Fuller v. Oregon, supra, 417 U.S. at p. 53 [94 S.Ct. at p. 2124] [recoupment statute was “carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so“]; Alexander v. Johnson (4th Cir. 1984) 742 F.2d 117, 124 [statutory scheme may not require repayment as long as the defendant remains indigent]; Olson v. James (10th Cir. 1979) 603 F.2d 150, 155 [recoupment statute must contemplate proceedings to determine the financial condition of the accused and reasonableness of the fees].) A statutory scheme requiring payment for the cost of the adjudicator should be subject to even more stringent requirements, because the affected individual has no alternative (such as seeking low-fee or pro bono counsel, or self-representation) to an impartial decision maker. Section 44944(e) contains no provision requiring the Commission to consider the financial condition of the teacher before imposing costs, and we may not assume that teachers who have lost their jobs will have adequate financial resources when they are billed for half the cost of the administrative law judge.
Although neither Rankin v. Independent School Dist. No. I-3 (10th Cir. 1989) 876 F.2d 838 (Rankin), nor Winston v. City of New York (2d Cir. 1985) 759 F.2d 242 (Winston), is exactly on point, these decisions provide persuasive guidance. The court in Rankin considered an Oklahoma statute containing a cost provision similar to the one in this case, except that half the cost
Under the provisions at issue in Winston, supra, 759 F.2d 242, dismissed teachers forfeited their pension benefits but could retain them if they resigned before a hearing. The court found that the scheme unquestionably had a chilling effect on the right to challenge the district‘s charges. “A teacher‘s stakes on such a ‘bet’ are so high, that given these poor odds, the City has effectively eliminated that teacher‘s access to a forum to vindicate his or her innocence. [Citation.]” (Id. at p. 246.) Although the court apparently was considering an as-applied challenge to the statute, it held that the city was required to redraft the provision to eliminate the choice of resigning and retaining the pension, or to add a provision requiring a separate determination whether the reasons for discharge warranted forfeiture. (Id. at pp. 246-247.) Thus, its conclusion that the potential chilling effect of the provision rendered it invalid does not appear to have rested upon the particular amount of the pension benefit at stake.
Our research has disclosed only one reported decision in the nation that has upheld a provision requiring a losing litigant to pay the cost of the adjudicator. In Sears v. Romer (Colo.Ct.App. 1996) 928 P.2d 745, an individual challenged various provisions regulating “outfitters,” who were defined as persons providing equipment, supplies, or services in connection with hunting wildlife. One statute required an outfitter to pay the entire cost of any administrative proceeding resulting in the denial or revocation of
A concurring and dissenting opinion expressed the view that the cost of the administrative law judge should not be imposed upon registrants, because the statute did not provide expressly for payment of this cost. The minority opinion also observed: “I am unaware of any decisional law that has expanded the definition of costs to include the pro rata costs of maintaining the courthouse building, its staff, and the judge‘s salary. [Citation.] . . . [¶] This is because a smooth-running and accessible judicial system is an integral part of our society from which everyone benefits. Since everyone benefits from the rule of law, everyone contributes to its operation. This is the legislative intent behind the cost statute.” (Sears v. Romer, supra, 928 P.2d at pp. 752-753.) Expressing concerns similar to those noted by the Court of Appeal in the present case, the concurring and dissenting opinion further stated: “I also am concerned about the arbitrariness of assessing such items as costs. Here, the record reflects that the [administrative agency] has collected similar costs in two previous cases. In one case, the actual cost of the ALJ [administrative law judge] and legal assistant was $148. In the other, however, it was $2279.75. This wide disparity suggests that the complexity of the case and the existence of evidentiary issues govern the amount assessed, rather than the gravity of the offense. Ironically, blatant violators with clearcut violations likely would pay the least in costs, whereas those outfitters whose cases are close or complex could be assessed large bills for time and research by the judge and the judge‘s assistant or clerk. Imposing costs in such a manner thus seems arbitrary and capricious.” (Id. at p. 753.)
Because the majority opinion in the foregoing case did not discuss controlling authority or even consider the registrant‘s due process rights, it provides little if any support for the state‘s position in the present case. We find persuasive the reasoning of the concurring and dissenting opinion, which did evaluate the operation and effect of the cost provision upon those seeking to invoke the right to an administrative hearing.
The invalidity of a provision requiring dismissed public teachers to pay for the public cost of the administrative law judge is apparent when we
The court in Cole also distinguished the cost of the arbitrator from other costs routinely imposed upon litigants. “There is no doubt that parties appearing in federal court may be required to assume the cost of filing fees and other administrative expenses, so any reasonable costs of this sort that accompany arbitration are not problematic. However, if an employee . . . is required to pay arbitrators’ fees ranging from $500 to $1,000 per day or more [citation], in addition to administrative and attorney‘s fees, is it likely that he will be able to pursue his statutory claims? We think not. [Citation.] There is no indication in [the arbitration] rules that an arbitrator‘s fees may be reduced or waived in cases of financial hardship. These fees would be prohibitively expensive for an employee . . . especially after being fired from his job, and it is unacceptable to require [the employee] to pay arbitrators’ fees, because such fees are unlike anything that he would have to pay to pursue his statutory claims in court.” (Cole, supra, 105 F.3d at p. 1484, fns. omitted, original italics.) Accordingly, the court construed the arbitration rules as requiring the employer to bear the entire cost of the arbitrator. (Id. at p. 1485; see also Paladino v. Avnet Computer Technologies, Inc. (11th Cir. 1998) 134 F.3d 1054, 1062 [agreeing with Cole that requiring employees to pay half or more of the cost of the arbitrator would violate the congressional policy underlying the statute].)
Although the court‘s conclusion in Cole did not rest upon the requirements of procedural due process, the court was required to consider whether arbitration served as a reasonable substitute for a judicial forum. If employees in the private sector cannot be compelled to pay the cost of private arbitrators when seeking to vindicate statutory rights in the arbitral forum, then certainly public employees seeking to vindicate constitutionally based interests in an official quasi-judicial forum cannot be required to compensate the state for the cost of the administrative law judge. As in Cole, such fees would be unlike anything teachers would have to pay to protect their constitutional interests in court.
In summary, the competing interests we must balance are the teacher‘s constitutionally protected property and liberty interests, the state‘s desire to limit the cost of hearings resulting in dismissal or suspension, the risk of erroneous results, and the value and burdens of additional procedural safeguards. These factors weigh heavily against the validity of section 44944(e). A teacher‘s interests in avoiding dismissal, in clearing his or her name in the face of charges of incompetence or misconduct, and in invoking the discretion of an impartial decision maker are substantial. The state has little interest in avoiding the cost of providing a legal system with impartial adjudicators as a means for the peaceful resolution of disputes, and, indeed, in this context is constitutionally required to provide such adjudicators. The availability of and access to judicial and quasi-judicial bodies to decide controversies and to safeguard constitutionally protected interests against arbitrary or erroneous deprivations by the state are fundamental components of our society. “[T]he state also ‘shares the employee‘s interest in avoiding . . . erroneous decisions.’ [Citation.]” (Coleman v. Department of Personnel Administration, supra, 52 Cal.3d at p. 1122.) Unless the teacher‘s or the district‘s position is frivolous, it is difficult, if not impossible, for a teacher to determine in advance whether the Commission will vote for dismissal or suspension, or whether a favorable decision might be overturned on judicial review. In light of the state‘s own assertion that its express goal underlying section 44944(e) is to discourage all hearings that result in dismissal or suspension, and the actual language of the statute reflecting that goal, there can be little doubt that this provision generally chills the exercise of the right
We conclude that any legitimate interest the state may have in conserving resources or discouraging hearings that happen to result in an administrative or judicial decision against a teacher does not outweigh the teacher‘s strong interest in presenting his or her side of the case and in invoking the discretion of the adjudicator. Nor does this state interest outweigh the public‘s interest in preventing erroneous or arbitrary dismissals or suspensions of teachers in our public schools.
V
Section 44944(e)‘s requirement that dismissed or suspended teachers pay half the cost of the hearing, including the cost of the administrative law judge, necessarily and impermissibly deters teachers from exercising their due process right to a hearing. The state‘s asserted interest in discouraging ultimately unsuccessful hearings is not a legitimate one, and, in any event, that interest and the interest in recouping the costs of providing the adjudicator do not outweigh the competing interests at stake in this context. Therefore, the cost requirement presents a total and fatal conflict with controlling constitutional principles and is invalid on its face. (Tobe v. City of Santa Ana, supra, 9 Cal.4th 1069, 1084.)
The judgment of the Court of Appeal is affirmed.
Mosk, J., Kennard, J., and Baxter, J., concurred.
WERDEGAR, J.—I respectfully dissent. The state has given permanent teachers substantial protection, both substantive and procedural, against arbitrary dismissal. An unavoidable consequence is that school districts must incur significant costs—financial, in loss of morale, and in disruption of the educational process—in order to terminate incompetent or misbehaving teachers.
I
Before articulating my own analysis of the constitutional question, I will directly address the reasoning of the majority opinion. The majority opinion concludes
While section 44944(e) may represent a less than ideal approach to the allocation of costs in teacher disciplinary hearings, the majority opinion‘s next step is a non sequitur. That a statute is imperfect does not make it constitutionally invalid; otherwise, we might soon clear the state‘s legal codes of enforceable laws. The question before us is not whether section 44944(e) could be improved, but whether plaintiffs have demonstrated that the posthearing imposition of partial hearing costs on a losing teacher is such a high barrier to a hearing, and so unjustified by legitimate state interests, that it can be said to deprive teachers of “a meaningful opportunity to present their case.” (Mathews v. Eldridge (1976) 424 U.S. 319, 349 [96 S.Ct. 893, 909, 47 L.Ed.2d 18].)
To repeat, the individual plaintiff in this case demanded and received a full evidentiary hearing prior to his dismissal. He does not, and cannot, argue the potential for cost-sharing chilled his exercise of the right to a hearing. As the majority opinion acknowledges, therefore, plaintiffs can prevail on their facial challenge only by showing the statute “inevitably” and “total[ly]” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145]) deprives teachers of a meaningful opportunity to defend against dismissal. (Maj. opn., ante, at p. 338.) At the least, plaintiffs must
The majority opinion nonetheless avers that section 44944(e) ”invariably will chill the exercise of the right of teachers to a hearing. . . .” (Maj. opn., ante, at p. 338, italics added.) As a factual statement, this would be not merely unwarranted by the evidence, but demonstrably wrong, since we know at least one teacher, Mr. Daloyan, was not chilled—that is, deterred—in the exercise of his right to a hearing. As it turns out, however, the majority does not really mean to say that teachers will invariably forgo a hearing rather than face possible sharing of partial hearing costs, but merely that the cost provision “could cause teachers to limit their defense and forgo vigorous advocacy.” (Maj. opn., ante, at p. 346.) While anything “could” happen, I would assume, instead, that the possibility of bearing additional costs if one loses an administrative contest would spur one to make all reasonable efforts to win. As for unreasonable efforts—those calculated merely to lengthen the contest or delay the outcome, with little likelihood of success—deterring such efforts would be both desirable and constitutionally permissible. In short, I cannot agree with the majority that a procedural statute deprives disputants of due process simply because it creates an incentive to pursue only cost-effective strategies and tactics.
The majority‘s central argument, as I understand it, is that despite all the state‘s protestations to the contrary, the only interest served by section 44944(e) is to deter all hearing requests “in which the teacher happens not to prevail.” (Maj. opn., ante, at p. 341.) According to the state‘s brief, the purpose of section 44944(e) is not to discourage hearing demands in general, but only those the teacher should know are meritless. Moreover, according to the state, because the statute also provides for government payment of a winning teacher‘s attorney fees, it actually “encourages teachers with meritorious defenses to vigorously contest the charges.” As expressed by counsel at oral argument, the state‘s asserted purpose for section 44944(e) is “to promote accurate administrative outcomes without undue taxpayer expense.”
Because the statute is not limited to frivolous hearing demands, the majority rejects the state‘s asserted purpose out of hand and posits a different, obviously indefensible purpose: to deter all unsuccessful teacher requests, meritless or not. (Maj. opn., ante, at pp. 341-342.) Having set up this
The majority opinion may also be understood to claim that section 44944(e) is constitutionally illegitimate because it is “unique,” “radical” or “novel” (maj. opn., ante, at pp. 336-337), either in that the costs it imposes include part of the cost of the adjudicator (id. at pp. 334-336), or in that it imposes costs on the losing party without requiring the party‘s position to have been frivolous (id. at pp. 340-341). In neither respect, however, is the statute unique, radical, or even particularly novel.
As a general matter, the American legal tradition might be said to favor public payment of the costs of adjudication in a public forum. Section 44944(e), however, is not unique among California statutes in requiring an administrative contestant to bear part of the cost of adjudication. (See, e.g.,
panel, each party pays its own panel member‘s costs and “shall share equally the fee of the third panel member or hearing officer and all other costs incidental to the hearing“];
In other dispute resolution contexts, as well, disputants are sometimes required to bear part or all of the adjudicator‘s expenses. (See, e.g.,
I do not mean to suggest each of these provisions is in all respects indistinguishable from section 44944(e), or that each in all its applications necessarily meets due process standards. My point is merely that, notwithstanding our traditional expectation that the public will bear the cost of providing the adjudicator for a public forum, the California Legislature, like those elsewhere, has experimented with various exceptions to that tradition, especially in the area of administrative disciplinary proceedings. Analogously, although California follows the traditional “American rule” that each party to litigation pays its own attorney fees (7 Witkin, Cal. Procedure (4th ed. 1997) Judgments, § 145, p. 659), the Legislature there, too, has experimented with a variety of exceptions to that rule, shifting payment of attorney fees to the losing party in a large number of specified actions and circumstances. (See id., §§ 162, 190-201, pp. 683-684, 715-733.) Unless we are to draw a bright line requiring all public adjudicators’ fees and expenses to be borne by the public—a step even the majority opinion stops short of explicitly suggesting—we must examine the purpose and effect of each statute individually to determine if, on its face or as applied in a given instance, it deprives disputants of constitutionally due process.
Nor is section 44944(e) unique, radical or particularly novel in imposing costs on the losing party without requiring a finding the party‘s position was
Moreover, as already noted, California law provides for other circumstances, including some administrative proceedings, in which the losing party must pay part or all of the cost of the adjudicator regardless of whether the party‘s losing position had arguable merit. (See
That a law is not unique, of course, does not necessarily mean it is constitutionally valid, any more than a law‘s unusual characteristics necessarily amount to constitutional deficiencies. The question of section 44944(e)‘s constitutionality must be answered by application of established principles of procedural due process. Applying such principles, as explained below, I conclude plaintiffs have not met their persuasive burden of showing, in this facial attack, that section 44944(e) “inevitably” and “total[ly]” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084), or even “general[ly] and ordinar[ily]” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 347 [66 Cal.Rptr.2d 210, 940 P.2d 797] (plur. opn. of George, C. J.)), deprives teachers threatened with dismissal of a reasonable opportunity to contest the charges against them.
Neither this court nor the United States Supreme Court has addressed the validity of a procedure that financially burdens a permanent government employee‘s exercise of the constitutional right to a pretermination hearing. This court and the federal high court have, however, discussed more generally the chilling, through imposition of excessive risk, of a person‘s exercise of procedural rights. From an examination of these decisions I conclude that, while due process does not require that the exercise of a constitutionally mandated hearing right be free from all costs, attaching a financial burden or risk to exercise of a hearing right will be deemed impermissible when the cost or risk is so high as effectively to deny the hearing right itself, or when its imposition is unjustified by any substantial purpose other than chilling the exercise of the hearing right.
Not all laws imposing financial or other costs on the exercise of a procedural right are unconstitutional. “[N]ot every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.” (Corbitt v. New Jersey (1978) 439 U.S. 212, 218 [99 S.Ct. 492, 497, 58 L.Ed.2d 466], fn. omitted.) We have said, similarly, that “it is not required that no burden at all be placed on a defendant‘s constitutional rights; it is only an excessive burden that is impermissible . . . .” (People v. Amor (1974) 12 Cal.3d 20, 28 [114 Cal.Rptr. 765, 523 P.2d 1173]; see also In re Green (D.C. Cir. 1981) 669 F.2d 779, 786 [215 App.D.C. 393] [“a court may impose conditions upon a litigant—even onerous conditions—so long as . . . they are, taken together, not so burdensome as to deny the litigant meaningful access to the courts“].) The circumstances under which a burden upon the exercise of a procedural right will be deemed “excessive” or otherwise impermissible have not been fixed with great exactitude, but a few general guidelines can be drawn from the cases.
Confiscatory, ruinous or otherwise prohibitive financial penalties on the exercise of a procedural right are impermissible because they effectively deny the process that is due (Ex parte Young (1908) 209 U.S. 123, 146-147 [28 S.Ct. 441, 448-449, 52 L.Ed. 714]; Winston v. City of New York (2d Cir. 1985) 759 F.2d 242, 245-246;2 Brown & Williamson Tobacco Corp. v. Engman (2d Cir. 1975) 527 F.2d 1115, 1119), although even a prohibitive
barrier to access may perhaps be imposed if the state has “a sufficient countervailing justification” (Boddie v. Connecticut (1971) 401 U.S. 371, 380-381 [91 S.Ct. 780, 787, 28 L.Ed.2d 113]). The imposition of a cost or risk on the exercise of a procedural right is also impermissible if it has no purpose or effect other than to punish, deter or prevent exercise of the right. (Fuller v. Oregon (1974) 417 U.S. 40, 54 [94 S.Ct. 2116, 2125, 40 L.Ed.2d 642]; North Carolina v. Pearce (1969) 395 U.S. 711, 723-725 [89 S.Ct. 2072, 2079-2080, 23 L.Ed.2d 656]; United States v. Jackson (1968) 390 U.S. 570, 581 [88 S.Ct. 1209, 1216, 20 L.Ed.2d 138]; Rankin v. Independent School Dist. No. I-3 (10th Cir. 1989) 876 F.2d 838, 840;3 Winston v. City of New York, supra, 759 F.2d at p. 246.)
Does section 44944(e) impose prohibitive, ruinous or confiscatory costs on a teacher who loses at the hearing? Is the “penalty” imposed for an unsuccessful challenge to dismissal so great that the teacher, like the rail companies in Ex parte Young, supra, 209 U.S. at page 146 [28 S.Ct. at page 448], “could not be expected” to risk the cost? In the context of this facial challenge, I must answer negatively. The hearing costs shared under section 44944(e) may be substantial and, to some degree, uncertain in advance, but I cannot say they “inevitably” and “total[ly]” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084), or even “general[ly] and ordinar[ily]” (American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at p. 347), constitute a prohibitive risk for a teacher seeking to save his or her job. Even conceding the cost-sharing provision could have a chilling effect in some instances, the record and briefing in this case provide no basis for concluding that effect rises to the level of a generally preclusive barrier to maintenance of an administrative challenge. Again, plaintiffs have presented no evidence any teacher has been deterred by section 44944(e) from seeking a hearing.
Is section 44944(e) justified by a legitimate purpose, i.e., one other than simply chilling teachers’ demands for hearings? As already discussed, the
I agree with the Attorney General that the deterrence of likely meritless demands for hearing, and the corresponding encouragement of potentially meritorious challenges to termination, is a legitimate state goal. (See, e.g., Lindsey v. Normet (1972) 405 U.S. 56, 78 [92 S.Ct. 862, 877, 31 L.Ed.2d 36] [“We do not question here reasonable procedural provisions . . . to discourage patently insubstantial appeals, if these rules are reasonably tailored to achieve these ends and if they are uniformly and nondiscriminatorily applied“]; Roller v. Gunn (4th Cir. 1997) 107 F.3d 227, 229 [requirement of partial filing fee for prisoner suits is “legitimate exercise of Congress’ power to reduce frivolous lawsuits“].) The state‘s undeniable interest in obtaining the dismissal of teachers who have committed serious misconduct or are otherwise unfit to teach entitles it to take reasonable measures to prevent unnecessary delay and expense in such dismissals.
By differentially encouraging and discouraging teachers’ hearing demands depending on the strength of the teacher‘s defense, section 44944(e) serves the legitimate and important goals of improving public education and conserving public resources. At least on its face, then, section 44944(e) broadly serves a legitimate state purpose and does not impose a generally prohibitive barrier on access to administrative review. Under the precedents reviewed above, the statute therefore does not per se constitute an impermissible burden on the exercise of teachers’ hearing rights. In the next part of the analysis I discuss whether, under the general balancing analysis of Mathews v. Eldridge, supra, 424 U.S. 319 (Mathews), the statute nevertheless is so poorly tailored to its legitimate purpose that its public benefits are outweighed by the risk it creates of erroneous result.
III
Under the Mathews analysis for determining the process constitutionally due, three factors should be considered: “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and
I first consider, therefore, the private interest at stake, the teacher‘s interest in continuing employment. I agree with the majority this factor weighs in plaintiffs’ favor as a particularly strong economic interest. “[T]he significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. [Citations.] While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job.” (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 543 [105 S.Ct. at p. 1494].) In addition, teachers charged, as was Daloyan, with “immoral conduct” face the prospect of dismissal under circumstances that may deprive them of their liberty interest in pursuing a livelihood. (Board of Regents v. Roth (1972) 408 U.S. 564, 573-574 [92 S.Ct. 2701, 2707-2708, 33 L.Ed.2d 548].)
Evaluation of the second Mathews factor—the risk of erroneous results under the state‘s procedures and the benefit of additional or substitute procedural safeguards—depends here on the extent to which section 44944(e) actually tends to deter teachers with potentially meritorious defenses to termination from demanding hearings. The challenged procedure in this case, the conditional sharing of partial costs under section 44944(e), carries a risk of reaching an erroneous result only to the extent it actually deters the exercise of hearing rights by such teachers. On this facial challenge, I am unable to conclude that the possible sharing of partial hearing costs will inevitably, or even ordinarily, deter a hearing demand from teachers who believe they have a meritorious defense to the charges against them.
The assessment of the degree of likely “chilling” of meritorious hearing demands is complicated by the fact section 44944(e) contains other, countervailing, cost-allocation provisions, most notably the provision that, if the
I do not agree the hearing cost provision can be severed from the rest of section 44944(e) in the manner plaintiffs suggest. The statute contains no severance clause. Mechanically, the disputed provision cannot be simply removed, since removal would leave undetermined who (the state or the district) is to pay the hearing expenses. Most important, whether the remainder “‘is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute’ . . . .” (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 190 [185 Cal.Rptr. 260, 649 P.2d 902]) is doubtful. The statute as written contains a set of trade-offs and matched incentives, no one of which can be disposed of without disturbing the legislative balance. Would the Legislature, for example, have provided for payment of a winning teacher‘s attorney fees had it known it could not validly require a losing teacher to contribute to the cost of the administrative law judge? Would it have provided for the district or state to pay the expenses of the employee‘s member of the commission, win or lose? I can answer neither of these questions confidently in the affirmative. I agree with defendants that, in assessing the costs and benefits of the statutory scheme, we must consider that scheme as a whole, including its benefits to teachers successful in their challenges.
I have already observed that section 44944(e), by penalizing unsuccessful challenges and rewarding successful ones, does, to some extent, serve the legitimate purpose of discouraging meritless defenses and encouraging those with potential merit. It remains to be considered whether the statute fails constitutionally because it is not sufficiently tailored to this purpose, in that it applies, as the Court of Appeal noted, even if a teacher prevails in part, and “regardless of the teacher‘s good faith, the arguable merit of his or her position, or how reasonably he or she pursues the matter.”
Because section 44944(e) applies to all teachers dismissed after hearing, even those who had arguable defenses or were partially vindicated, some
The majority argues that in the Mathews analysis we should consider, as additional or substitute procedural safeguards, possible procedures “for assessing whether the teacher‘s position has potential merit or whether the costs of the hearing exceed the teacher‘s ability to pay.” (Maj. opn., ante, at p. 349.) Because such (unspecified) procedures would assertedly not be costly or burdensome to the state, and because they would help to protect the liberty and property interests at stake in a dismissal hearing, the majority argues, their absence renders section 44944(e) facially invalid.
This reasoning cannot be correct as a method of constitutional scrutiny. Under the majority‘s analysis, any procedural scheme that could be improved so as to increase its truthfinding efficiency while imposing relatively small costs on the state would be, simply for that reason, subject to complete invalidation. This court would sit as a legislative board of review over all procedural statutes, entertaining in each case any suggestions for improvement in the statutory scheme and finding the law invalid on its face if we believed the benefits of different or additional provisions would outweigh their cost.
But the question before us is not whether section 44944(e) could or should be improved; the question, rather, is whether, as enacted and on its face, the statute deprives teachers of a meaningful opportunity to present their case. The additional or substitute procedures we must consider are those the plaintiffs seek to have applied. Plaintiffs do not seek a holding that section 44944(e) may be constitutionally applied only when the teacher is able to pay the assessed cost, or only when the teacher‘s defense to dismissal had no
I turn, finally, to the third Mathews factor, the government interest in maintaining the existing procedural scheme. As discussed earlier, school districts have a substantial and legitimate interest in avoiding the expense and educational disruption of drawn-out dismissal proceedings lengthened by meritless hearing demands, an interest section 44944(e) directly serves by imposing a cost on demands for an ultimately unsuccessful hearing. Amicus curiae Education Legal Alliance (an association of public school districts and governing boards) elaborates usefully on this point: “Currently, teachers have a stake in the dismissal procedure. As a result, not every dismissal is appealed. Much of the time, teachers and school districts reach settlement agreements. These settlement agreements often save valuable resources (both for the district and the teacher‘s union), and minimize the disruption of the educational process for our students. [¶] . . . Invalidating
To weigh against the state‘s important and legitimate interest, plaintiffs produce, in essence, only a speculative assumption that the possibility of paying partial adjudicative costs will deter even a teacher with potentially meritorious defenses to the charges from demanding a hearing that might preserve his or her job. Plaintiffs, in my view, have failed to show a risk of error sufficient to outweigh the state‘s interest in the generality of cases. Permanent teachers are constitutionally entitled to a meaningful opportunity to contest the charges against them prior to dismissal, but they are not guaranteed a system in which any contest can be brought without cost. On balance, this record and briefing do not allow me to conclude the cost-sharing requirement denies teachers threatened with dismissal “a meaningful
CONCLUSION
Permanent teachers threatened with dismissal are statutorily and constitutionally entitled to contest the charges in a pretermination hearing. Section 44944(e), by requiring that teachers who unsuccessfully contest their termination and are dismissed after demanding a hearing pay half the cost of the administrative law judge, places a burden on the teachers’ exercise of their constitutional hearing right. But not all burdens on the exercise of a procedural right constitute a denial of due process. Plaintiffs here have failed to demonstrate that the burden imposed by section 44944(e) is constitutionally impermissible, either because, inevitably or in its ordinary application, the statute operates to block access to the mandated hearing, or because it fails to serve any legitimate purpose. Nor have they demonstrated that the statute, viewed as a whole, creates a risk of erroneous termination significant enough to outweigh the state‘s legitimate interest in discouraging meritless hearing demands while encouraging those with potential merit. Although individual instances may arise in which the statute would create an impermissible burden or deny a teacher a meaningful opportunity to be heard, plaintiffs’ facial attack on the statute should be rejected.
Chin, J., and Brown, J., concurred.
Notes
“If the Commission on Professional Competence determines that the employee should be dismissed or suspended, the governing board and the employee shall share equally the expenses of the hearing, including the cost of the administrative law judge. . . . The employee and the governing board shall pay their own attorney fees.
“If the Commission on Professional Competence determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing, including the cost of the administrative law judge, . . . and reasonable attorney fees incurred by the employee.”
Winston presented a clear case of an excessive burden on a teacher‘s exercise of hearing rights. Under a provision of the New York City Administrative Code, teachers dismissed for cause forfeited their rights to city-funded retirement benefits, while those who, upon the filing of charges, resigned rather than demanding a hearing retained their retirement benefits. (Winston v. City of New York, supra, 759 F.2d at pp. 243-244.) The appellate court found this provision unconstitutionally prevented the teachers’ exercise of their due process rights to aNone of these provisions invariably require a losing litigant to pay the cost of the adjudicator responsible for the initial decision to deprive that litigant of a constitutionally protected interest, in the only forum in which that decision may be made. Furthermore, there is no indication that any of the provisions that assess the cost of an official adjudicator at the initial due process hearing has been reviewed and upheld as constitutional by a court of record. Even if some or all of these provisions were considered the same as
“In the event that the decision of the commission is finally reversed or vacated by a court of competent jurisdiction, then either the state, having paid the commission members’ expenses, shall be entitled to reimbursement from the governing board for those expenses, or the governing board, having paid the expenses, shall be entitled to reimbursement from the state.
“Additionally, either the employee, having paid a portion of the expenses of the hearing, including the cost of the administrative law judge, shall be entitled to reimbursement from the governing board for the expenses, or the governing board, having paid its portion and the employee‘s portion of the expenses of the hearing, including the cost of the administrative law judge, shall be entitled to reimbursement from the employee for that portion of the expenses.” (Italics added.)
This decision illustrates the flaw in the dissenting opinion‘s repeated, unsupported assertion that a plaintiff must present evidence quantifying the deterrent effect of a procedural provision before a court may determine that the provision impermissibly chills the exercise of a constitutional right.
The issue whether section 44944(e)‘s attorney fee provision survives invalidation of its hearing cost provision is not properly before us. Neither party has briefed the issue, and the lower courts did not consider it. (See People v. Crittenden (1994) 9 Cal.4th 83, 153 [36 Cal.Rptr.2d 474, 885 P.2d 887] [“Generally, we do not consider contentions unsupported by argument or authority.“].) In any event, we reject the state‘s contention that elimination of the attorney fee provision, together with the cost provision, would increase the risk of erroneous results. A teacher has a greater degree of control over the amount of his or her attorney fees than the amount of hearing costs, and the teacher may avoid liability for attorney fees by seeking representation by an employee organization or pro bono counsel, or through self-representation.