*1 deny compensation sound to an There is no reason expose peculiar duties her risk assault whose personal merely motivated because assailant was gone Had Mrs. Schick customer animus. to the home had he committed whom she had not met before and personal purely reasons assault her unconnected doubt she employment, with to be her there seems no The mere fact compensation. would have been entitled to arranged "customer” former husband who her assault elaborate ruse facilitate the commission employ- her not, Madin, under exclude does the rationale contributory implied finding ment as cause or vitiate the sufficiently with her that the assault was connected board employment to anbe incident thereof. award is affirmed. J., J., Tobriner, J., Burke, Traynor, J., Comb, Peters, Me C. J., Sullivan, J., concurred. 26, 1968.] No. 29458. Bank. Jan. A.
[L. Appellant, ENDLER, Plaintiff BERNARD J. SCHUTZBANK, as Commissioner of Cor JERALD S. Respondent. etc., porations, Defendant and *3 Appellant. for Plaintiff Ellis J. Horvitz General, Siegel, and H. Warren Lynch, Thomas C. General, Respondent. Deputy Attorney Defendant and years After nearly in the TOBRINER, J. finance busi employment in to obtain ness, plaintiff finds himself unable Corporations, because the Commissioner his chosen field having unproved him a criminal ac labelled basis anyone disciplinary cusations, action threatens who might employ him. Plaintiff seeks confront urges that, defend innocence; his accusers and to his he until adjudicated proper proceedings, has Con guilt been his pursue occupation guarantees his a lawful stitution criminality. badge by an official We hold that unburdened commissioner, rendering alleged plain conduct of the tiff affording unemployable him a full without on the him, transgresses principle the fundamental charges against liberty may deprive property man of no the state Accordingly, of law. we conclude that without due declaratory injunctive plaintiff has a ease for relief stated dismissing complaint court and that trial erred general upon the commissioner’s demurrer.
I posture ease, must procedural of this we Given the complaint. plaintiff’s allegations accept as factual accurate 559, 563 (1967) v. 65 Cal.2d (Ros Malcolm enfield Dumke Cal.Rptr. 505, ; 421 P.2d Stanton 697] ; Stigall Cal.Rptr. 380, P.2d 199, 108] Cal.2d City Cal.Rptr. Cal.2d of Taft *4 Arroyo ; Flores Cal.2d 375 P.2d 289] therefore, present purposes, Cal.Rptr. 87, 364 P.2d For undisputed: following facts as we treat plaintiff years prior For to November was em- 14% ployed by financial institutions California. He has various exclusively in earned livelihood almost the finance business his family seriously ability support im- and his to will be permitted position per- paired hold a a unless he is with by property broker licensed the state.1 sonal position 1964, plaintiff such a In mid-November secured as Corporation. manager Huntington At some office for Finance prior mid-September 1965, commissioner informed time Huntington plaintiff’s employers of former had
that one charged forgery that, him with and and embezzlement unless plaintiff’s Huntington employment, would terminate steps suspend Hunting- take commissioner would revoke or personal property as broker. At ton's license a the time Huntington, his office had under- commissioner so notified independent investigation lodged of the accusations taken no against plaintiff. requested present Plaintiff behalf, but refused at evidence his own the commissioner any hearing that time to kind. hold plaintiff Huntington informed the commissioner 1 ‘ ’’ capable, thoroughly conscientious honest company” great had and that who been “of assistance employer allegedly plaintiff had accused who wrongdoing Huntington plaintiff “very had told was a ... good honest man and worker and well versed in the Huntington finance business.” concluded “it would [plaintiff] be unconscionable of us to dismiss [therefore] your unsupported by independent request, the basis of verbal upon charges investigation, and based made man who given [plaintiff] warm recommendation.” previously comply your request, “If Huntington we were to with added: employer [plaintiff] would were to do likewise and each new employment in his chosen field without be forever barred from being given a or a chance to clear his name. We ever fundamentally at with his basic this to be odds consider ‘ ‘ engaged lending include all who are the business 1Such brokers taking or security any . . such contract money , loan, obligation involving rights in or to personal the forfeiture property, the, which is retained other than the use and possession property assignment mortgagee attorney or lien or lender, on, of, power or (Fin. wages, Subject earnings, income, commission.” salary, Code, relative (§§ 22050-22053), § several enumerated exceptions brokers must obtain a license from the Commis all personal property 22200). (§ sioner Corporations *5 way treat a trusted proper to think it is the We do rights. service on and effective faithful rendered has who ’’ our behalf. communica- Huntington addressed after weeks Several proceedings revoke instituted him, commissioner tion to plain- discharge refusal to because of its Huntington’s license at- Huntington the commissioner’s resisted Although tiff. purchased Huntington was proved futile. tempt, efforts its Unwilling Corporation. Management and Finance Loan State disfavor, Loan terminated State commissioner’s risk the early 1965. Two weeks November plaintiff’s employment proceedings against dismissed the commissioner later, Huntington’s successor. conduct an Shortly thereafter, commissioner offered to plaintiff hearing” charges urged against “informal understanding said informal was not “with the statutory any specified statute or pursuant
undertaken with administrative authority, not to accordance applicable hearings, and would be with- procedures to formal parties rights thereto.” The prejudice com- out favorably disposed that, he were indicated unless missioner discip- hearing, threaten he “would continue to after such any linary employed plain- . . . action licensees who subject agree pro- Plaintiff did not himself to the tiff.” posed proceeding. policy then embarked of “direct- The commissioner employ plaintiff . . . not to on threat ing licensees its suspension personal property revocation or their broker’s impossible the result that “it has become license” with employment anywhere plaintiff in the State to obtain of Cali- personal property a licensed broker or with fornia with Corpora- other licensee of the officeof Commissioner of tions.” irreparable injury he would if the suffer Alleging permitted persist directing others were commissioner plaintiff sought declaratory, injunctive, employ him, the mandatory relief, together with whatever other relief the proper. The commissioner demurred on the might deem court complaint failed to state sufficient to facts ground trial action. In June court a cause of constitute demurrer without to amend ordered leave sustained ap- Plaintiff then instituted this plaintiff’s action dismissed.
peal.
II
threshold,
At the
we are met
the Attorney Gene
that, having
ral’s contention
failed to exhaust the administra
remedy
plaintiff
tive
offered to him
late
cannot now
judicial protection.
argument
seek
require
does not
ex
tended
recently
discussion. We have
held that an opportunity
for administrative review does not constitute the sort of
“remedy”
party
which a
must exhaust
invoking
before
assistance
the courts unless the
regulation
statute
under
which such review is offered
clearly
“establishes
defined
machinery for the submission, evaluation and resolution of
complaints by aggrieved parties.”
(Rosenfield Malcolm,
supra,
III hurdle, Having passed the exhaustion we come to the At- suggestion “the sole issue in this torney case is General’s disciplined . may employing . a licensee for whether unqualified indicate he is to be a loan com- person whose acts discipline manager.” We have no doubt that such falls pany hearing 2Among things, commissioner indicated that his other comply requirements of the Administrative Procedure would not Act. lacking with plaintiff would he assume that could therefore safeguards which this court has held in at least some' of mandatory (See, e.g., Shively disciplinary proceedings. v. Stewart 65].) Cal.Rptr. 217, 421 P.2d 479 [55 Cal.2d statutory authority,3 but that within the commissioner’s well currently contrary, the issue the issue before us. On the is may permanently bar the here is whether the commissioner plaintiff employment field basis chosen on the from investigated charges affording partially without ever plaintiff proceeding heard in a to be formal accompanied by safeguards ordinarily required by process of law. approaching question, this we outset note at the protects pursuit Fourteenth Amendment one’s arbitrary profession abridgment by from state action.4 We 3Although plaintiff Property maintains that the Personal Brokers Law (Fin. Code, 32000-22653) §§ to does not Commissioner of authorize the Corporations of suspend corporate or revoke a license for misconduct manager, position plaintiff’s its office we have concluded that regard lacks merit. The commissioner revoke a if he finds license 1‘ which, fact or condition if exists existed the time of original reasonably application for license such would have warranted originally refusing (§22615, the commissioner to issue the license.” (e).) heavily upon subd. Plaintiff fact relies that section Code, governing original license, the Financial issuance of the au corporation thorizes the denial to a license whose “officers and ’ experience not of directors’ are such and character as to con command honesty efficiency. fidence in their We do consider the failure “managers” to mention determinative. 1‘ ’ ’ First, corporate manager regarded is often as one of its officers. Blodgett (See, eg., Cal.App. Stockton Lbr. Co. v. 95 [84 P. Second, may require the commissioner since information about
manager
(§
applicant
(b),
Legislature
of a license
subd.
must
empower
deny
(§ 22206)
have intended to
the commissioner to
a license
upon finding manager unqualified—and
therefore to revoke a license
(§22615,
(e)) upon
ground.
subd.
the same
Third,
“may
general
regulations
the commissioner
make
rules and
. . .
Property
Law],
enforcement
Personal
[the
Brokers
in addi-
to,
general purposes
(§22400.)
tion
Pursuant
and within the
of [that
law].”
authority,
promulgated
regula-
to this
the commissioner has
*7
specifically provides
any
which
tion
that the misconduct of
of
‘‘
company
grounds
suspension
finance
shall
be
of
revocation
[its]
(Cal.
Code,
10, §1440.)
license . . . .”
Admin.
tit.
there can
Since
power
regulation
no doubt
ques-
as to the commissioner’s
to enact the
(see
22615,
(a)),
tion
section
subd.
it furnishes a basis for license
suspension
independent
22615,
(e),
or revocation
of section
subdivision
independent
categories
corporate personnel
of
and hence
of
enumer-
ated
section 22206.
long
recognized
4It
“right
any
has
been
of
follow
occupations
large ingredient
liberty
common
...
is ...
in the civil
(Allgeyer
(1897)
578,
the citizen.”
of
v. Louisiana
165 U.S.
589-590
835-836,
832,
427], quoting
L.Ed.
[41
17 S.Ct.
from
Union
Butchers’
etc.
City
(1884)
746,
v. Crescent
Co.
etc.
585,
Co.
111 U.S.
762
L.Ed.
[28
588-589,
(concurring opinion) ;
4
(1914)
652]
S.Ct.
Smith
see
v. Texas
630,
1129, 1132,
681,
;
233 U.S.
636
L.Ed.
34
[58
S.Ct.
170
1‘
begin
proposition
therefore
with the settled
that a
tate
[s]
person
any
occupation
cannot exclude a
from ..
. . .
in a
reasons
manner or for
that contravene the Due Process or
Equal Protection Clause of
Fourteenth
Amendment.
(Schware
and citations
Board
[Footnote
omitted.]”
v.
of
(1957)
232,
Bar Examiners
796,
353 U.S.
L.Ed.2d
[1
Konigsberg
801-802,
752,
77
64 A.L.R.2d
;
S.Ct.
v. State
288]
(1957)
810,
Bar
353
252
;
U.S.
L.Ed.2d
77 S.Ct.
[1
722]
(1956)
Slochower v. Board
etc. Education
without on clearance which a needed cook job in order to retain her at a naval institution. Less than two years in Willner v. later, (1963) Committee Character 373 1175], 96 83 S.Ct. court reversed 5Compare, e.g., O’Reilly (1967) v. Board Medical Examiners 167]; Doyle Cal.Rptr. v. Board Barter Cal.2d 381 P.2d Cal.Rptr. 349] ; Cal.App.2d Examiners Presto Beverage Alcoholic etc. Board Cal.App.2d Control Cal.Rptr. 742].
171
hearing to ad
refusing
York
without a
in
the action of New
held
The court
in
applicant
to its bar
mit an
association.
required
procedural
“confrontation
Willner
that
person
deprives a
and
word
cross-examination
those whose
p. 229])
(373
p. 103
L.Ed.2d at
of his livelihood”
U.S. at
[10
grounds
for his
as
of and a
well as “notice
rejection.”
p.
(Id.,
p.
at
105
L.Ed.2d at
[10
case,
comparison
present
facts
A
between the
of the
Workers,
Willner,
and
furnishes
those
those
Cafeteria
departure.
“governmental
point
function”
in
useful
Workers,
that
in Willner
volved in
unlike
involved
Cafeteria
case,
power
regulate
and in
instant
“not
entailed
profession
but,
license,
lawmaker,
as
trade or
. .
entire
power],
proprietor,
manage
rather
as
the internal
[the
operation
important
military
of an
federal
establishment.”
(367
pp.
p.
1236-1237].)6
896
L.Ed.2d at
At
U.S. at
[6
time,
same
interest
affected
the official action taken
here and in
nothing
Willner was
less than “the
to fol
(367
profession”
low a
pp.
chosen trade or
U.S. at
[6
L.Ed.2d
“All
1236-1237]),
at
whereas
was denied
that
[in
at
to work
one iso
Workers]
Cafeteria
specific military
(367
p.
lated and
installation.”
at
896
underlying
government’s power
6TIie
distinction
limit
between
lights
public employees
power
liberty
and the
in
lesser
restrict
the
for
private
expression
Thus,
sector
finds
numerous areas of the law.
example,
from
Supreme
recently held, 5-4,
Court
that statements elicited
police
employed
under the
officers
threat of dismissal
subsequent
proceedings against
(Garrity
criminal
such
v. New
officers
Jersey (1967)
616])
U. S.
385
493
L.Ed.2d
87 S.Ct.
and
[17
lawyers may
asserting
privilege
not be disbarred for
self-incrimination
(Spe
v. Klein
court.8 We find Attorney argument General’s untenable. In deed, Attorney urged General of precisely Arizona position Supreme same before the in Court Truax Raich (1915) 239 U.S. 7], only 36 S.Ct. With MeReynolds dissenting (on Justice grounds), other the court rejected unqualifiedly Attorney General’s contentions. Truax involved making any an it a Arizona statute for crime company employees percent with five over to fill more than 20 of its labor penalized force from the aliens; ranks of the law violating employers imposed upon but no sanctions whatever employees long they so as did nationality. their conceal An sought injunction Austrian-born cook prevent state enforcing officers from against employer, the statute his who discharge had threatened him prosecution in order to avoid Supreme under the thought beyond statute. The Court it dis pute “that living to work for the common occupations community very is of essence of personal and purpose freedom it that was the (239 Amendment to at secure” [Fourteenth] L.Ed. at p. 135]), court had no doubt that upon grounds nationality restriction such freedom on vio equal protection (id. lated clause L.Ed. at pp. 135-136]) controversy plain real ; the centered standing complain tiff’s the state’s threatened action employer. his Attorney Truax, suggested General of Arizona plaintiff our here, General intimates that the lacked standing object proceedings against to threatened em- ployer any event, that, could the state not be blamed employer’s discharge employee, decision to since relationship question employer’s terminable at the responded: urged “It will. The court is . . that the . .. complain master, and servant cannot for the is the subject complainant. prosecution, master who is and not the directly upon employ- operate But the act undertakes to *11 compel of employer ment and if to aliens enforced would being 8The ... is General states that “Endler denied by state, hearing. in a license which ease he would be entitled to a by provision promulgated is no the commissioner] There the rules for [in ’’ licensing managers companies. of loan But as wo said in a related setting ago, rights plaintiff:’s a short boundaries of time “The ultimate by Corporations] are of of set the rules Commissioner [California (Rosenfield Malcolm, but the Constitution of the United States.” v. 562.) 559, supra, 65 Cal.2d
175 employes bring of his to number discharge a sufficient sufficiently appears prescribed limit. It quota within the alien solely complainant will be for discharge of that avoiding of the act and meeting requirements purpose of therefore, provisions. is, its It prosecution under threatened ’ pp. (Id., at 38-39 injury or remote.' indirect call the idle to p. 134].) L.Ed. at [60 plaintiff’s employ Truax, that ease, in the fact In this private parties cannot absolve upon will of ment rests responsibility discharge and for his for ultimate state of position company as a inability another loan alleged to secure here, Truax, no than in the fact manager. And less plaintiff’s employers to government's threats are addressed plaintiff himself cannot obscure the immediate than rather upon plaintiff’s devastating impact those threats .9 job ability a to obtain proposition, surprisingly early precedent represents for the 9Truax contemporary adjudication, increasingly important constitutional responsibility private encourages. conduct which bears state Mulkey (1967) 830, e.g., (See, 369 v. 387 U.S. L.Ed.2d [18 Reitman ; 296, 1627] (1966) Newton 382 306 Evans v. U.S. L.Ed.2d [15 87 S.Ct. ; (White, J., concurring) 373, 381, Anderson 86 v. Martin 486] S.Ct. 399, 430, 432-433, 454] ; (1964) 402-403 L.Ed.2d 84 [11 375 S.Ct. U.S. 267, 338, 342, (1963) v. 373 U.S. L.Ed.2d [10 Lombard Louisiana Wilmington Parking Authority 1322] ; (1961) Burton v. 83 S.Ct. 715, 45, 52-53, J., (Stewart, S.Ct. 856] U.S. concurring).) 726-727 Truax, Broadly speaking, eases, general prin- like these illustrate the may ciple complain improperly that B has “A C to [induced] protects him: the common from relations with law A’s interest abstain C, with him. The mere fact that freedom to deal left to his own C’s negative devices, A . declined to deal with does not . . have wrong legal possibility to A a ease where C’s freedom to deal with impaired perhaps transposed, A is B’s action. . . These terms can by analogy, scene, the administrative with the Commission in the east (Jaffe, .B . . .” Judicial Control of Administrative Action role of (1905) Thus, authority Truax, private (A) on the school allowed (C) Oregon (B) requiring parents enjoin enforcement of statute to to send business of 'the U.S. and thereby interfering public schools, their with the children (Pierce Society (1925) private school Sisters 1070, 1078, 571, 468]) 510, 535-536 L.Ed. S.Ct. 39 A.L.R. permitted enjoin broadcasting (A) was network enforcement regulations (B) exposing of the Federal Communications Commission (C) prospect renew contracts who their network radio stations revocation, threatening relationships thus the contractual license (Columbia Broadcasting System, Inc. United States network. 1573-1575, 1194] ; 1563, 316 discussion also Terrace v. 273-275, 422-424 L.Ed. S.Ct. see see 512-513, Jaffe, supra, especially 47; op. cit. fn. Thompson 263 U.S. 44 S.Ct. situations, complain standing improper of B’s In these A’s induce- injury legally cognizable in the C A’s interest ment to rests *12 176 present ease of course The differs from Truax in several plaintiff
respects: challenges here administrative rather objects legislative than action; upon he pro- action cedural rather than grounds; pre- substantive and he seeks to relationships vent interference with future business rather preserve position. than existing These differences, how- ever, provide upon posit no rational basis which to a different result. principle already application Truax ha.s found
Indeed, the decisions Supreme Court which overturned admin- in several istrative action on procedural grounds at the behest of those have activities would otherwise been curtailed whose future formally Thus, example, directed at others. acts by official Refugee (1951) v. Anti-Fascist Committee McGrath in Joint 624], Attorney L.Ed. 71 S.Ct. 123 Gen- 341 U.S. supposed- had disseminated a list of of the United States eral complained organizations. Three associations ly subversive ability a list interfered in such with their inclusion that their business; they alleged, among their lawful carry on other supporters and they members, particu- things, that lost employment by continued among those whose the federal larly jeopardized by membership government would listed upon injury Relying such indirect economic organization. sue, standing their associations asked that establish from the General’s list names be stricken their given hearing they had not been ground that to their character. subversive agreed else, the court on little but the six The members uphold
justices voted to the claims of the association all who complaining parties holding prop that the could concurred procedure challenge listing which resulted erly thought The court it “unrealistic to contend that names. their [Attorney gave directly no orders to the General] because change conduct, their course relief petitioners to cannot be actually long granted what did. We have granted [he] parties legal rights have whose been violated un relief to although action, public such action made no direct lawful (Id., p. them. U.S. at demands [Citations.]”10 largely independent problem relationship and not entail A-C does ground infringes may challenge B’s action on the A when "third-party” (Bor helpful problem, treatment of this see of C. Sedler, Standing Supreme Tertii in the to Assert Constitutional Jus Court Yale L.J. Broadcasting cited, alia, point inter Columbia 10At the court 407; Society States, supra, System, Pierce United 316 U.S. v. Inc. v. also Dombrowski see 837] ; Pfister ; cf.Copper 85 S.Ct. 380 U.S. 1116] (D.C. Plumbing Heating Campbell 1961) & Co. Cir. App.
F.2d 368 D.C. Although formally Joint Anti-Fascist involved a dissem- officially compiled by agent inated list which had been the government, holding applies with undiminished federal its force to the here—that in- situation which confronts us emanating formal agency. communications threats from a state *13 Books, In Bantam Inc. 372 Sullivan 58 U.S. v. example, 83 631], the Rhode S.Ct. for Island Encourage Morality Commission to in had Youth notified a majority book distributor that state that a of the commis- members considered certain sion’s books unsuitable for sale to urged minors. The commission the distributor not to deal in such literature and intimated that it inform would the state non-compliance. Lacking General in the event of authority apply any kind, coercive sanctions of the commis- anyone. sion issued no threats or orders to New York publishers question, recipients books the themselves subjects command and the proceeding, no sought of no declaratory injunctive and relief the commission’s business, continued interference with Island their Rhode com- plaining that the commission had hearing conducted no proper under determine standards which books to con- demn. opinions, Although including resulted four case one
dissent, justices concluding were the nine unanimous in adjudication ripe that, and the matter for under control standards, publishers standing ling federal to sue (372 pp. 589-590]) 6 U.S. at 64-65 fn. L.Ed.2d at on action, private theory “if were a it would pre justiciable, claim, plainly of unlawful interference in sent (Id. advantageous at business relations.” fn. L.Ed. upon p. 590].) Relying herein, 2d the cases discussed at found irrelevant the fact that the court commission’sconduct only distributors and complaining was directed {Ibid.) publishers themselves. just us, conclude that case We in the now as in before Joint Books, upon Anti-Fascist and in Bantam can nothing turn plaintiff challenges procedural validity fact that of an legality administrative action rather than the substantive a supra, Sisters, Hatch, supra, Truax (See 239 U.S. 510; 33. supra.) fn. 9, enactment, can make difference that nor
legislative
forego
future
rather
challenged conduct
induces others
relationships.11
past
than
ruaca,
upon
holding
T
deci
Building
basic
Anti-Fascist
and in Ban
Supreme
in Joint
Court
sions of the
governmental
proposition that whenever
tam Boohs settle
injures
judgment
an indi
stigmatizing
based
action
him,
may
deal with
he
chal
by inducing others not to
vidual
him a full
government's
refusal
to accord
lenge in court
its
disputed facts which form the basis of
hearing
holding Willner,
Coupled
these deci
with the
action.
any person toliose
principle that
sions establish the
freedom
by an
ac
seriously restricted
pursue
profession is
his
official
designed
discourage
employ
conduct
lo
tion or course of
government
him a
compel
ment
afford
process?12
requirements
the traditional
complying with
in which the
limited to cases
principle had
If
been
this basic
and did so
directly against
individual
government moved
action “aimed
manifestly improper purpose,
then state
for
reputation
stigmatized their
individuals, which
. named
. .
living,
could
seriously impaired
to earn
their chance
long recognized
conduct,
Supreme Court has
that such
11The
hbvi-over
prospective
effect,
escape
cannot
informal and however
ultimate
imposes upon
which the Constitution
more traditional forms of
limitations
Keegan
regulation.
government
United
States
325 U.S.
1203],
example,
S.Ct.
the court considered
filling
private
*14
stated that
the
of
of a statute which
certain
effect
the
Party
by
positions
Communist
of
members of the
or
the German-Ameri
expressed policy
Congress.”
contravene “the
of the
Bund would
can
1748, 1751].)
pp.
“policy”
(Id.
pp. 483,
L.Ed.
at
Since the
[89
at
by
supported
provision
enforcement,
govern
question
no
was
the
‘‘
’’
admonition,
Attorney
sought
a mere
to defend
as
much as the
ment
attempts to dismiss the eominisisoncr’s conduct
General here
“advice.”
as mere
concurring opinion,
his
Justice Black
that
found
charac
(Id.
wholly unpersuasive.
pp.
L.Ed. at
terization
1755-1756].)
by
suggest
12The
relied
the
General to
the con
cases
trary
bearing upon
simply
the
here.
of
have no
issue
Most
them
reaffirm
(see
proposition
accompanying
5, supra)
fn.
text
the undeniable
the
may
corporation’s
employs unqualified
because it
revoke a
license
state
persons.
Securities
simply
that,
remaining
under
The
eases
hold
the rules of the
may
Exchange Commission,
voluntarily
disciplinary
aganist
party
proceedings
employer-regis
his
a
become
(Wallach
compel
employee’s
trant;
not
attendance
the commission
(D.C.
1953)
Exchange
App.
Com.
202 F.2d
v.
D.C.
chooses to
Cir.
462.
Securities &
by
hearing
108])
he
of the
but
is bound
the results
he
whether
1963)
(Berko
Exchange
(2d
v.
appear
v. Securities
Com.
Cir.
&
(Wallach
137)
invitation to
316 F.2d
or declines an
do so
Securities &
(D.C.
1953)
Exchange
App.
41]).
Cir.
local union which had against initiated the accusations him. alleged conspiracy deprive rights He by him secured Constitution, the federal in violation of 42 U.S.C. section “and ing Rights other Civil sections Laws.” After review- Supreme decisions Court which we dis- have above, cussed physician Second Circuit held that properly “could claim summarily discharging him in the midst of by advising accusations and [the union’s] hospitals City other . . not employ him, Department Hospitals gave charges against stamp [the him] official only authority, deprived and not his employment, him of but seriously damaged professional reputation com- in the munity physician.” (371 F.2d at 677.) “In such circumstances,” concluded, court “the due clause guarantees one the have charges notice him and being charges on these [entitles one] before (Ibid.) Noting dismissed.” the “traditional distaste government Lovett, discharged 13In were employees from their official Congress. positions an act of The court concluded that the act con finding stituted justiciable bill of prohibited attainder after the matter *15 Congress’ damaged because action had the petitioners’ and reputations employability. 180 ability an effective defamation without to contest the the impartial (id. charges p. 14), in an tribunal” at 679 the fn. “hearing” by hospital court held that casual offered ‘1 could deemed a for the not be substitute law (371 p. 15.) requires.” 679 fn. the Constitution F.2d at only way hearing,” decided, full “was the court “[A] reputation physician’s] interests substantial [the [in employability] protected. (Id. p. could been have ...” 679.) recognized,
As the court in Birnbaum thus funda permitted requires that mental fairness an individual be publicly against charges, in defend himself official however personal professional formal, threaten stain his which (See Education, supra, 350 future. Slochower v. Board etc. 551, 692, 700] ; Updegraff, 558 Wieman v. U.S. L.Ed. [100 supra, 183, 216, 190-191 ; 344 L.Ed. see also U.S. [97 221-222] McElroy, supra, & 367 Restaurant Workers Union v. Cafeteria 886, Davis, 1 1230, 1238-1239] ; L.Ed.2d U.S. (1958) 7.12, Birn Treatise The Administrative Law § circumstance baurn court found no obstacle by attempted physician’s license; state to revoke the affirming physician’s standing challenge indirect action, impact recognized court commissioner’s “ insuperable [s]tanding made an barrier should ... rights abridged” and that “to those whose have been [to] impose doctrine of excessive refinement distinctions ‘permit quibbling . . . . distinction overturn . . would ’ principle protect right. fundamental designed which Jeffers, 48, 59, 65, v. L.Ed. 72 United States J., dissenting grounds in Ber (Harlan, on other S.Ct. 93].” ger New York 388 U.S. 1893].) S.Ct.
V urges that, whatever finally General precedent might require, court principle and result recognizing commissioner should not inconvenience say is, hearing. suggestion This plaintiff’s right ato one of is surprising. “right ... least, Since ... the Four play’ . . assured fair . ‘the rudiments of compromise can be no .... teenth Amendment [t]here that min . when expediency . footing or convenience (Ohio Bell neglected ignored.” requirement has been imal 292, 304-305 (1937) 301 U.S. Com. Tel. Utilities Co. Public 1093,1101-1102, S.Ct. *16 the Moreover, if we assume commissioner’s con even Constitution, outweigh the commands venience could argument. accept The the General’s we cannot commissioner in plaintiff does not insist the must here evitably employee hearing filing give a before accusa the employer, even that the commissioner must against his or tion requiring his invariably employee’s the before tem hear ease against disciplinary proceedings porary suspension pending employer. plaintiff that, contends here is since All one pressure already discharged under employer him from the has an be afforded to commissioner, he should now lodged against him can challenge accusations so that he a protect reputation and obtain either reinstatement his procedure incorporating position.14 A these measures new provide protection to the without substantial would governing employers. hindering of the laws the enforcement Com., supra, 247, (See Public Cal.2d Sokol v. Utilities plaintiff’s request a Properly conceived, the presents upon and imposes the commissioner no undue burden efficiency and needs the demands of conflict between the no process. allegations prove accurate, plaintiff’s to be he will be If hearing;15 in a unless the to himself formal entitled defend circumstances, involving undisputed course be certain 14There adversary hearing required. (See, e.g., facts, would be in which no 139, Artists Federation Radio Cal.2d De Mille v. American holding 382], A.L.R. enforcement 154-155 P.2d by-law suspension upon providing of a member union for automatic aof requirements pay not contravene the of due assessment did failure to (Doyle Examiners, supra, process; compare Board Barber 219 Cal. constitutionality provision authorizing App.2d upholding of a operate barbershop employer’s suspension whenever case, however, apprentices.) present The falls hires than two he more charges underlying exception, the crucial the com within no such since employment are, course, discourage plaintiff’s missioner’s decision hotly contested. already plaintiff’s complaint, 15According has the commissioner Loan), plaintiff’s employers (Huntington State and threatened two of alleges job. Although plaintiff causing plaintiff further to lose his continuing complaint eommisisoner, is the crux his threats cloud resulting reputation personal professional from the and his charge plaintiff guilty and embezzle public of fraud that the is commissioner’s ment. Until forum, plaintiff permitted is in a clear his name obviously persist damage complains whether or not of which he will made, make, explicit has fact or will continue to eommisisoner plaintiff’s prospective employers. (See Trussell, Birnbaum v. threats supra, 13-14.) at & have F.2d fns. Plaintiff will estab right procured.his hearing, therefore, proved lished his missioner has com once lie by accusing him of criminal act. dismissal hearing, Shively Stewart, supra, As to nature of the renuired see (See Act, 65 Cal.2d 479-480. also the Administrative Procedure Code, 11500-11529.) §§ Gov. promptly makes such hearing commissioner plaintiff, having available,16the adequate legal
no remedy, will be entitled to a declaration that the commissioner acted arbitrarily has injunction prevent permanent from commissioner fur- circulating charges his employment. plaintiff ther or otherwise discouraging present demurrer, any Since the case arises attempt specific procedural this time to formulate a arrangement for plaintiff’s rights vindication of obviously pre- would stage, mature.17 At this all that clear is is that the trial court dismissing plaintiff’s complaint. erred judgment of dismissal entered pur- the trial court sustaining the suant to its order defendant’s demurrer is re- versed, and cause is remanded for proceedings further with this consistent decision.
Traynor, J., Peters, J., Mosk, J., Burke, J.', Sullivan, C. *17 J., concurred. McCOMB, judgment J. I dissent.I would affirm the expressed by Presiding reasons Mr. Justice Wood Appeal opinion prepared him for Court of in Endler v. Cal.Rptr. (Cal.App.) 57 824. Schutzbank statutory authority appropriate 16The fashion an commissioner’s (See, e.g., Code, 22206, 22211, 22400,
procedure §§ Fin. cannot be doubted. 22601-22617.) prescribe position 17The trial will court a better a combination mandatory preventive relief which interests will assure adequate protection. concerned receive of all