*1 Nov. S094248. 2002.] [No. DEGRASSI, Plaintiff and Appellant,
CHRISTINE etc., al., COOK, et Defendants as City Manager, ARTHUR Respondents.
Counsel
Robert L. Kern E. and Scott Wheeler for Plaintiff and Appellant. Curiae Amendment as Amicus Coalition First Francke for California
Terry on behalf Plaintiff Appellant. Corda; Barman, Green, Frank MacRae, Lamb, Sharon C.
Leboeuf, Greene & Arthur and Respondents Terzian for Defendants & and Richard R. Terzian Mouw. Butler, and Marshall Bauer, Albert Fishman Cook, Sue Paul *3 Defendant and P. Barer for Poliak, Fisher, J. Vida and Daniel Vida & Scott Burke, and Williams Sorensen. Respondent
Opinion University
GEORGE,
Regents
As in
Katzberg
C. J.
California
of
of
in this
482,
(Katzberg),
58 P.3d
I. City as member of the Glendora Christine served Degrassi2 Plaintiff suit in present Council from until March 1999. She commenced In place while related in federal court. order her pending context, litigation. the federal matter in we first describe briefly present Katzberg: propriety of such those explained do not here consider the actions 1 As in “We actions fоr grounds principles—for example, law upon established under common based arrest, policy, wrongful upon public imprisonment, termination based violation of false false actions, may duty public policy be established like. In or violation of a breach damages properly be provision, and by demonstrating a violation of a constitutional only an action for is available remedy the consider here whether awarded to tort. We statutory common law or remedy tiеd to an established violation is not fn. (Katzberg, supra, 29 Cal.4th action.” briefs, “Degrassi” moving papers, her and Court of in last name written 2 Plaintiff’s defendants, contrast, in the Circuit’s By and Ninth Appeal the briefs of opinion below. The former- conforms with below), last is written “DeGrassi.” (discussed name decision hence this appeal, in the record on and signature on her contained plaintiffs declaration below. opinion and use version out in briefs opinion we set defendants, In 1997 sued three groups alleging they violаted, among defendants, other her free The things, speech rights. who are also the defendants in the were three present litigation, (i) members council, the chief of city Arthur police, Cook—the manager, lead defendant in the present litigation (the City the law defendants), (ii) Burke, Sorensen, firm of Williams for the of Glendale attorneys City law firm (the defendants), (iii) family three members of a that resided in Glendora (the Andrews suit was defendants).3 removed federal court. aIn amended for, subsequently claims complаint, pressed among other things, under 42 United States Code section 1983 (section asserted free claim), violations under the First Amendment to the federal Constitution. Plaintiff also prayed an asserted violation of speech rights under California Constitution. The federal court district ruled against claim, on her federal civil but to rule on declined the state *4 claim. On appeal, the Ninth Circuit Court of Appeals described plaintiff’s claims as follows:
“She from alleges , the time of her election . the . . . defendants . . subjected her to a of harassment and campaign they intimidation because her views. opposed She claims that barred political defendants her from business, Council her participating from prevented with communicating staff, City and threatened her both litigation with should she physically disclose the wrongdoing any employee. Much conduct com City as a plained occurred result of at a Council [plaintiff’s] objection City meeting 1996 to of landmark status granting building to a in Glendora owner, claimed, she prior whose a child was molester. The owners of the building, Andrews family, filed action (the Andrews [defamation] action) against based on her comments [plaintiff] City at the Council meet ing. action, claims this dismissed, which was was filed eventually [Plaintiff] in retaliation for her political views. to have City sought [Plaintiff] [][] her a defense provide against the Andrews action. several On occasions during October Council held closed City sessions consider demand. was excluded [plaintiff’s] from these She meеtings. [Plaintiff] contends this conduct to interfere part continuing with campaign her First Amendment and to her destroy and career political reputation . . . .” (DeGrassi v. City (9th Glendora Cir. 207 F.3d 2000) (DeGrassi I).)
The Ninth affirmed Circuit the dismissal of First Amendment plaintiff’s claims, and section on that some of the grounds underlying claims were time-barred 207 F.3d and that the (DeGrassi 644-645), supra, opinion groups collectively 3Sometimes our refers to these three as defendants. facts allege claims of defendants failed the three remaining against grоups 645-647.) (Id., First violation. make Amendment sufficient to out commenced present pending, plaintiff the federal action was While filed in In an amended complaint Court. action in the Los Angeles Superior tracked and supplemented which here), operative complaint April (the groups that all three alleged in the federal allegations complaint, plaintiff her free under speech rights defendants violated Plain- Constitution, asserted violation. sought damages the state her to viоlate conspiracy a claim of things, also other alleged, among tiff claims, plaintiff alleged of these In rights. state her of notice of meetings, council deprived excluded her from defendants information, and interfered with her otherwise denied her access to meetings, asserted among as a council member. city Specifically, participation other things: threats, intimidation, retaliation by subjected She was ongoing
(1) council in the time she was elected April defendants from “threatened end of term in March Defendants through her 1999. [her] she be of civil lawsuits or subject more than one occasion that would or discuss- acting unless she refrained from unpleasant’ ‘other consequences relating City.” (3) City matters of interest ing public operations defendants in and the law firm defendants assisted the Andrews defendants in mind of goal a defamation lawsuit “with filing against plaintiff, *5 on matters of public and of chilling plaintiff preventing speech law defendants concern.” The defendants and thе firm City suppressed (4) votes for and the by plaintiff information in retaliation the views expressed to force a the ultimate city goal being she made as council member—“with (5) “regularly subjected public Plaintiff was plaintiff resign.” of the public humiliation the statements of the defendants and members by actions, a of aware of the facts . . . .” As result these who were not true and to meetings of her to attend council deprived rights city plaintiff constituents, all in out a her council member representing speаk I, under section rights 2(a). free article violation plaintiffs I, does section not 2(a) Defendants demurred on the article ground and, a cause of a for damages consequently, cause action support private also does not lie. to violate this constitutional provision action conspiracy dis- leave to amend and trial court the demurrers without The sustained affirmed, review, holding the Court of the action. On Appeal missed damages, does not a cause of supрort section 2(a) a for conspiracy predi- cannot state cause action therefore claim. cated that underlying
As in at 29 Cal.4th shall Katzberg, supra, page we assume for that the purposes alleged facts a analysis conclusion that defend ants’ conduct violated under article section 2(a).4
II.
We begin by stressing, as in Katzberg,
29 Cal.4th
that the
supra,
here does
question
not turn
whether
presented
upon
2(a)
Indeed,
the free
“self-executing.”
clause of article
“is
. . .
self-executing, and
even without any effectuating legislation, all
branches of
are
government
Furthermore,
with its terms.
required
comply
that,
it also is clear
like
other constitutional
this
many
provisions,
action,
supports
brought
aby
defendant,
a
private
against proper
or for
declaratory relief
injunction.”
(Katzberg, supra,
at p.
issue
only
whether,
that we need resolve in
case is
this
assuming that the
facts
alleged
demonstrate a violation of plaintiffs free
has
speech rights,
stated an aсtion for
relief in damages.
Our
federal,
opinion Katzberg
state,
traces the
development
sister
law,
and California case
addressing the
availability money damages in an
action
brought to
violation
remedy
of constitutional provision (Katzberg,
supra, 29 Cal.4th at
then
sets out an
307-317),
approach
analyzing
that issue. (Id., at
pp. 317-329.)
proceed
We
to follow
apply
set out in
approach
First, we shall
Katzberg.
whether
inquire
there is
infer,
evidence from which we
find or
within the
constitutional provi
sion
issue,
at
an affirmative intent either to
authorize
to withhold a
Second,
violation.
if no such affirmative intent
either to
or to
found,
authorize
withhold a damages
can be
shall
undertake the
analysis adopted by Bivens Six Unknown
Fed. Narcotics
Agents (1971)
U.S.
S.Ct.
A. As we in observed the of Katzberg, language most constitutional provi sions does not or manifest intent to speak any include a for a violation of the 29 Cal.4th at provision. (Katzberg, supra, pp. 317-318.) I, The free of clause falls within 2(a), general The clause grouping provisions. states: “Every person may freely speak, write and his or her on all publish being sentiments for subjects, responsible 4Indeed, allegations there is reason to doubt in the fact state violations speech rights. or abridge liberty restrain or A not abuse of this law right. the press.” (Ibid.) through Propo- to the Constitution I, was added state
Article section 2(a) 5, Gen. Elec. (Nov. (Ballot Pamp., ballot. 7 on the November 1974 sition 1974, had, long in The state Constitution text of p. 1974) Prop. clause, set out in former identical substantively contained a 9.5 the for “being language, responsible
Plaintiff asserts that the provision’s recognizes propriety right” 2(a)), implicitly abuse (art. § that “if the argues provision for Plaintiff suit defamation. for for are appropriate as that actions recognizing to be interpreted stated,” provision then we also should construe an abuse of the as right.” “a ... for with such (Italics as cause of action allowing interference reenacted in because the enacted added.) Merely provision, existence of revised in continued implicitly contemplated and defamation, however, not does common law long-established create new of action it also was intended to cause suggest imply a violation of the free speech right. to remedy “do disclose explicitly of the not We conclude that words provision as a for violation either to authorize or to withhold damages intent to discern further in our attempt of the must look provision. Accordingly, a damages remedy.” was intended to include whether 2(a)] [article at p. 318.) (Katzberg, supra,
1. of the constitutional We first consider available drafting history they when adopted materials that were before voters provision measure. debates that preceded the relevant of the We have reviewed passages Browne, of Debates Rep. and 1879 Constitutions. (See adoption 30-31, 41 of State Const. (1850) pp. in Convention Cal. on Formation “To debate], the free without 474-475 languаge [adopting [Address & California,” Constitution]; Willis introducing proposed People 1878-1879, Stockton, Proceedings Cal. Const. Convention Debates and write, publish his “Every may freely speak, citizen 5Former article section 9 stated: right; no law shall be being responsible of that subjects, sentiments on all abuse *7 .” Nov. liberty press. (Repealed the . . passed abridge speech the or of restrain suits], 1188-1189, 1425-1426, issues defamation [debating concerning 1491, 1509 the free [adopting speech language debate], without 1521-1524 the California,” “To of the State People introducing pro [Address cited, discovered, have not nor posed Constitution].) parties have we in any indication this material that the drafters addressed the question I, whether article section would in 2(a) provide violation of the free clause. Nor have we discovered any evidence that drafters of the 1974 that suggesting revision considered issue. (See Com., Cal. Const. Revision Art. I (Declaration Background Study Rights) 16-24 (Oct. revision of 1969) pp. [concerning propоsed former article 9]; Com., section Cal. Const. Revision Art. I III (Declaration of Rights) Rep. 4-5 (Jan. 1970) [concerning revision of proposed former 9]; Com., Cal. Const. Revision 1971) Revision Proposed (pt. p. [noting that commission “recommends retention of these with important rights Com., out substantive see change”]; generally Cal. Const. Revision Rep. Materials Relating Provisions in Const. Cal. Recommended or Endorsed Com. by (Dec. 1974) pp. 74-82.)
We also have examined the ballot materials that were before voters when lаst provision was amended in 1974. (Ballot Pamp., Gen. Elec. (Nov. We find in these 1974).) nothing materials the voters suggest considered, foreclose, much less intended either to create or to a damages remedy with to article respect clause. 2(a)’s Plaintiff asserts “a do large portion voters not read the [ballot] but instead pamphlets, many other rely upon sources”—including “lifetime . . . experience, education on a expectations”—in how vote deciding matter. Without further on this elsеwhere at- elaborating point, plaintiff to bolster her that refusal to tempts position by asserting permit be viewed as a refusal to “may execute will sovereign also Plaintiff one people.” speculates, had canvassed voters who “[i]f enacted, entered the when the were it polling places provisions seems reasonable to assume voters would be amazed find that there as to any question to have such enforced provisions by court an action for dаmages].” asserts that if a Finally, plaintiff [in case, is not recognized for asserted free in this violations “the courts must least part accept continuing responsibility [legislative] problems minorities and local corruption governments.” None of rhetoric this substitutes for evidence from which we infer might an intent that itself permits remedy a violation of that provision.
341 2. even to which the constitutional provision, We consider extent next neverthe- of a to damages, an indication right forth setting explicit without mechanisms, a damages from which less contains guidelines, procedures rejected addressed and be for the argument inferred. might Except remedy to seek ante, of a recognition right the implied concerning page to action, anything does not way point of a defamation damages by an I, intended to permit an that article section 2(a) inference supporting of that damages action for to a violation remedy provision.
3. history law from any We next considеr whether there exists common an infer, an intent to provide which we within article section might 2(a), noted in As action for to a violation remedy provision. 322-324, history regarding such exists 29 Cal.4th Katzberg, supra, But we are jurisdictions. constitutional search and seizure in some provisions a common-law- any finding unaware of decision from other any jurisdiction rights, based an of free speech seek asserted violation right and we common in California that would any history are unaware law 2(a) a conclusiоn that article was intended support provide an of that to seek asserted violation remedy provision.6 for dam- In itself asserting provides clause, relies the free ages upon a violation of Co. v. Rain Foundation 131 Laguna (1982) Cal.App.3d Golden Publishing case, In that Cal.Rptr. Publishing). publishers (Laguna [182 813] commu- sued the owners retirement gated giveaway newspaper private nity, claiming that the violated state community newspaper’s enforced and free under article when owners rights 2(a), press within the commu- a rule distribution of unsolicited free barring newspapers did allow an sure, Laguna be nity. majority opinion Publishing To and free the asserted free press action for Publishing the court in Laguna violation. But we observed in Katzberg, to include not was intended did consider whether constitutional provision instead to have remedy, recognized such a appears assertion, is no there Contrary damages. that those who adopted Laguna Publishing opinion proposition otherwise, Cal.Apр. by analogy upon Melvin v. Reid arguing 6In relies rejected this Katzberg, supra, In footnote P. 91]. reading proposed of Melvin Reid. *9 I, section article considered the matter and intended to an action provide for to violation damages a of the free clause.7 remedy
We conclude is no that there indication in the language section nor the 2(a), any evidence in of that history from which we provision, find, within that an provision, to seek for a violation implied right damages of the free set out therein. speech right
B. we As observed in the Katzberg, determination that article 2(a), section itself, in does not a right damages afford to seek for a violation of does not end our “Just have provision inquiry. as we not discovered any basis for that a concluding damages remedy was contemplated reasonably be inferred within for might violation of 2(a)] that provi- [article sion, we also have not discovered any basis for that a concluding damages remedy circumstances, intended to be foreclosed. In we, such the like United States and the Court courts of numerous other Supreme jurisdictions that have faced circumstances, similar to shall consider whether a proceed constitutional tort for the action to asserted remedy constitutional violation should be 29 Cal.4th at recognized.” (Katzberg, supra, p. the in Applying factors set out at to Katzberg (id., we decline pp. 324-329), recognize tort action for to remedy asserted violation of article in case before 2(a), alleged us. first two factors set out in against militate Katzberg recognition First, constitutional tort action. had rem- meaningful alternative edies. She could sought have mandate or an chal- injunction against conduct lenged under either Code of Civil Procedure section or under Code, M. Act; Brown Act Ralph Gov. 54950 et she (Brown Had seq.).8 § done so—and injunction was warranted assuming facts—much Katzberg, supra, page disapproved methodology 7In at we footnote Foundatiоn, employed by majority Laguna Publishing in Co. v. Rain 131 supra, Golden Cal.App.3d by Community in Fenton v. the court Groveland Services Dist. 758], Cal.App.3d [185.Cal.Rptr. apparently permitted which action constitutional tort Constitution, of the in violations vote set out California II, noted, Katzberg expressed section 2. As on the no view correctness results reached in those two cases. concedes, 8As extent to the she claims that defendants held or facilitated absence, holding meetings in her she had under remedies available 54960.1 Act, provides following Brown which injunction an action mandamus or violation And, observed, as original act. the Court of below “could have Appeal filed an petition for writ of mandate pursuant compel Code of Civil Procedure section 1085 to comply statutory defendants to she with duties so that could exercise her lawful [their] Moreover, rights public assuming plaintiff and duties as a were able official.” to establish avoided. have been might complains conduct оf which plaintiff would be innocu- hardly remedies suggestions, Contrary plaintiffs that a Second, assertion contrary ous or empty. by contemplated of her free speech an asserted violation 3333, as we observed sections 1708 and in Civil Code law codified 327-328, as matter these a general Cal.4th
Katzberg, supra, tort action for of a constitutional recognition do not provisions damages. *10 clause an and fundamental free reflects
Admittedly, speech important mentioned but, when the considerations interest, as observed in Katzberg, wе action, the a constitutional tort recognizing not in favor of above do militate alone, a of great is not factor of importance right, standing relative were, even we at Cal.4th at But if p. significance. (Katzberg, supra, a constitutional recognizing this in our inclined toward analysis, point us, a factor would counsel in the case before final action such of an on the facts strongly against—and alleged, preclude—recognition action. reluctance to create a
As observed in courts have Katzberg, expressed adverse things, action so other doing might, among produce when or or when there reason policy consequences practical problems proof, damages. to courts types to assess question competence particular (Katzenberg, p. 329.) Cal.4th supra, case, noted, claim essen-
In the as bases her free speech present ability her allegations on that defendants frustrated tially improperly а because with disagreed exercise the duties of local defendants legislator, a But are in such placed her and with her views. who legislators approach be wrongdoing prosecut- either position expected report suspected authorities, or, their ing commonly, political position more to employ council members. the asserted of other publicize transgressions these, concern that a damages circumstances such there is reason for In Torts, erratic, too or heavy, (Rest.2d too might “impose penalty” 874A, improperly com. and that the threat 309) h(3), p. § absence of These risks are increased chill might process. political this is so when damages, an measure of also ascertainable objectively by suffered damage “the the measure of depends upon amount awarded than the of fault the part rather measure particular to endorse a reluctant extremely are Accordingly, defendant.” (Ibid) sought right, cоuld enforce her she have violation of through declaratory injunctive relief. cause of action that would subject to hoc post judicial and assess- scrutiny ment of damages the kind of differences, political squabbles, perceived that are slights inherent in a representative government such as a body council. Carsten (Cf. v. Psychology Com. Examining Cal.3d 799-802 614 P.2d Cal.Rptr. Even that the 276].) assuming type conduct alleged in the constitutes a complaint violation the free defendants, clause by we conclude that money damages are not an simply appropriate remedy. above,
For the reasons set out we decline to recognize constitutional tort action for asserted violation of article section 2(a), in the alleged case. This does not present clause, mean that the free general, never will Moreover, support money damages. we do not consider in this case whether other state any constitutional provision may constitutiоnal tort action Rather, for such damages. we conclude that the loss or of which here damage with complains—interference her functioning effectiveness as a legislator—does not support recogni- *11 tion of a constitutional tort for damages, even assuming such interfer- ence result from a violation of the free clause.
III. The Court of determined Appeal correctly that article does not afford a seek money damages in the circumstances prеsented. of the judgment Court of is affirmed. Appeal
Kennard, J., J., Chin, J., Werdegar, Moreno, J., concurred. BROWN, J., Concurring I concurin the Dissenting. deter majority’s mination that neither the nor the language of article history subdivision (a) California Constitution an intent on the supports part of the drafters to include a damages for violation of our state free clause. For the reasons set forth in my concurring dissenting opinion Katzberg Regents University of California 300, 330-332 339], 58 P.3d I Cal.Rptr.2d would not consider any other basis for a tort cause of allowing action.
Baxter, J., concurred.