Katzberg v. Regents of University of California

S097445.Nov. [No. 2002.] KATZBERG,

RICHARD W. Plaintiff and Appellant, THE OF REGENTS THE al., UNIVERSTIY OF et CALIFORNIA Defendants and Respondents.

Counsel for Plaintiff and Siegel Appellant. & Yee and Dan

Siegel Cardozo; A. Pahl Paul D. Fogel, Raymond Roach & Crosby, Heafey, May, Holst, Gosselin, Kann, James E. John F. Joslyn; L. Nanette & Kenneth A. Blair for Defendants Lundberg Jeffrey Respondents.

Opinion in this and in

GEORGE, companion review matter We granted C. J. 508, 58 P.3d case, Cal.4th 333 Cal.Rptr.2d v. Cook Degrassi bring an action for to consider whether an individual may (Degrassi), of the violation of a provision on the basis of money damages alleged Constitution, or an estab statutory provision in the absence of California for the constitu law such a authorizing damage lished common tort seeks, relief, case, among other violation. In the present plaintiff tional of his due alleged defendant’s violation upon based monetary damages of the subdivision (a), under article interest process “liberty” by failing pro section 7(a)), Constitution (hereafter California depart his removal as after hearing vide him with a timely “name-clearing” conclude that an action at a medical center. We university ment chairman is not available.1 grounds upon actions as those based propriety such do here consider 1 We arrest, for false false principles—for example, tort actions under common law established In or the like. public policy, imprisonment, wrongful termination based by demonstrating a actions, established duty public policy violation of be a breach of I. In Richard W. was plaintiff of medi- Katzberg appointed professor at cine of California at University Davis Medical School and Chairperson of the Department Radiology University California Davis Medical In Center. commenced July the university an investigation alleged concerning mishandling of funds department radiology. 1996, the February issued a university release press investiga- regarding tion, and the Sacramento District Office Attorney’s thereafter announced that it would initiate a criminal investigation. $250,000

The investigation concerned approximately had allegedly been placed inappropriately radiology accounts to used for payment department Most of this came expenses. from rebates money provided by medical vendors. equipment There never has been any allegation plain- tiff made use personal Instead, of the challenged funds. the alleged related to of funds in improprieties placement account department’s rather than in the medical center’s funds. general

In March the university announced that “appropriate personnel initiated, actions” had been did but not name any Later specific employee. month, as removed He chairperson department. remained a tenured at the professor medical school a staff physician the medical center.

In sued February various defendants on plaintiff numerous grounds, and the has resulting litigation moved back and forth between state and federal courts.2 For present is sufficient note that purposes, plaintiffs third amended here complaint—the one at issue—named as defendants the of the Regents University California and the (the Regents) Chancellor Davis, of California at University Larry N. Vanderhoef col- (hereafter lectively, The defendants). that complaint alleged by making stigmatizing statements about in the course plaintiff him from his as removing position defendants department chairperson, violated interest of liberty plaintiff protected under article section 7(a).

Although the was an ter department chairmanship at-will position, minable without cause at the discretion of the chancellor Davis violation of a provision, properly be awarded only here tort. We consider whether an action for a available statutory constitutional violation that is not tied established common law or action. notice, unopposed judicial submitting 2 defendants filed an motion for our consideration filings various in the litigation granted earlier related case. We the motion in an order argument. prior filed to oral property concedes that he had no hence (and plaintiff campus employ that “an at-will [public] it is well established to that position), discharge accompanied are when his liberty ee’s interests deprived in his his and associations standing might seriously damage ‘that charges a that disability him or other stigma on community’ foreclose^] ‘impose[] ” employment opportunities.’ of other advantage his to take freedom 174], Cal.Rptr.2d 68 Cal.App.4th Hallinan (Holmes 564, S.Ct. 408 U.S. v. Roth Board Regents quoting oc a deprivation When such 2709-2710, liberty 33 L.Ed.2d (Roth)) v. Velger (1977) a curs, “name-clearing hearing.” (Codd a has a party 883-884, 51 L.Ed.2d 92].) S.Ct. 429 U.S. had been alleged plaintiff provided

The third amended complaint himself, to, or prior he could defend either with such a at which hearing relief, since, including variety his also complaint sought removal. fees, and costs. attorney an injunction, damages, to strike the for relief. defendants’ motion prayer

The trial granted Later, half removal— plaintiff’s and a after years October 1999—three few For next name-clearing hearing. defendants offered plaintiff months, concerning parameters negotiated unsuccessfully the parties 2000, defendants revised and renewed the such a hearing. February offer, and but no for a name-clearing hearing, rejected proposal has been held. hearing on due- summary judgment plaintiff’s Defendants thereafter moved for viola- on interest grounds liberty claim the process-liberty-interest (i) are not could not be because the false statements “alleged tion proved, law,” if interest violation liberty as matter of even stigmatizing (ii) be to a name-clearing hearing, could would limited proved, on the Plaintiff the motion rejected. which had plaintiff previously opposed others, adequate not offered him an that defendants had ground, among name-clearing hearing. 2000, judge granted summary a court the trial April following hearing, defendants, an adequate had offered finding they plaintiff to

judgment the sole hearing such hearing, postremoval name-clearing under the due process interest violation remedy liberty for asserted I, were damages of The court found that 7(a). money clause section inter- “infringement liberty not law to available under California ests,” name-clearing in the offer of alleged delay or to undue remedy any motion ruling summary judgment trial confined its on hearing. The issue, claim that plaintiff’s to the and did rule on defendants’ damages to violation. liberty-interest were insufficient demonstrate allegations review, the Upon began Court that the Appeal by noting state consti tutional due interest to have been process liberty alleged violated this case has been under the recognized due clause of Fourteenth Amend process Roth, ment of 564, the federal Constitution in 408 U.S. S.Ct. [92 “ 2701, In that decision the high court observed that 2707]. ‘[w]here honor, name, person’s good or is at reputation, integrity stake because of him, what the notice doing and an to be government heard opportunity are case, essential.’ In such a due would accord an process [Citations.] to refute the before opportunity charge officials.” University (Ibid,)3 Court of that it assume Appeal stated would for that a purposes analysis I, similar interest liberty exists under article of the 7(a) state Consti tution, further alleged assumed that facts in this case state a violation of plaintiffs due interest under this liberty state Constitution. Focusing solely the Court of upon damages question, affirmed the trial court’s Appeal grant defendants, for summary judgment are holding not available to money a violation of I, interest under article liberty section 7(a). court, In this contends that article affords him a 7(a) for the asserted violation of his process liberty interest. contrast, By defendants assert that a is the sole name-clearing hearing that a court should impose alleged constitutional violation. For issue analyzing review, which we purposes granted assume, we shall as did the Court facts in the Appeal, alleged third amended are sufficient establish a violation of the due complaint interest process liberty under state Constitution’s due clause.

II. Article section 26 of the California Constitution states: “The of this are provisions Constitution unless mandatory prohibitory, words are express they declared to be otherwise.” Under “all provision, branches of are government required with constitutional directives comply 493, (Mosk v. Superior Cal.3d fn. 17 Cal.Rptr. [159 1030]; 601 P.2d Bauer-Schweitzer Co. v. Malting City County San Francisco (1973) Cal.3d 506 P.2d Cal.Rptr. 1019]) [106 (Sail'er Inn, Inc. v. prohibitions 5 Cal.3d Kirby (1971) Cal.Rptr. Velger, supra, 3See also Codd v. (when 429 U.S. S.Ct. there has 883-884] violation, been process liberty “remedy a due . . employee] mandated . is ‘an [for opportunity charge’ ”); City . Binkley Long refute the . . ‘to clear his name’ [and] Cal.App.4th (a liberty Beach Cal.Rptr.2d interest implicated by public position mismanagement, process requires removal from a and due person opportunity the removed an refute her charges name); have the and clear his or Hallinan, Holmes Cal.App.4th 1530-1531. Dist. School v. Stockton 351]).” (Leger 46 A.L.R.3d P.2d Unified As we (Leger).) Cal.Rptr. Cal.App.3d 688] [249 is constitutional provision century ago, “[e]very more than a observed it is void.” in extent, done violation everything self-executing P. 3].) 69 Cal. Co. v. Hilton (Oakland Paving I, article is whether in this case not the Accordingly, posed question clause is clear that due process is It “self-executing.” section 7(a) effectuat without any is and that even self-executing, article section 7(a) with its required comply are government all branches ing legislation, that, Furthermore, like other constitutional many it also is clear terms. action, a brought private plaintiff by this section supports provisions, defendant, for injunction. (See for relief or declaratory against proper 15 Cal.3d 194 Personnel Board (1975) v. State generally Skelly Friesen, Litigating Law: 774]; P.2d State Constitutional Cal.Rptr. Claims, 7-5(a), ed. Rights, (2d pp. Individual and Defenses 1996) § whether, assuming here (Friesen).) question presented interest, liberty plain states a complaint plaintiffs violation the asserted monetary damages tiff maintain an action for on 7(a), violation of his due interests under process liberty alleged.4 the facts

III. Fed. Narcotics More than 30 in Bivens v. Six Unknown years ago (Bivens), U.S. 29 L.Ed.2d S.Ct. Agents (1971) to recover recognized party United States Supreme federal for of a constitutional an action against the violation Bivens, unreasonable right against a citizen’s Fourth Amendment agents. officers. The law enforcement search and seizure violated federal whether the the issue as a question in Bivens did approach posing Friesen, 7-5, “Occasionally argument over page 416: 4As observed in However, ‘self-executing.’ self- damages is cast in terms of whether the clause is [the all, judicially enforceable at executing truly question whether a clause is concerns issue] automatically are available enforce question and does not answer whether cases, this, concerning recognizing inquiry able have characterized clauses.” Some damages remedy question presenting whether a allowed as whether under “ calling as to whether ‘self-executing’ in a sense”—and as for examination review is different rights is to be provision “provides procedures which its declaration of rules [for] and, enforced, remedy by way of specific citizens with a particular, provides whether remedy.” (Leger, supra, legislation granting its absence IV.A.2., agree that added.) post, part As Cal.App.3d explained first italics availability damages remedy, determining the but we these are relevant in considerations context; “self-executing” terminology in this potentially confusing employ the believe it accordingly, we shall not do so. 308

Fourth Amendment was intended to an action for provide damages, whether such intent instead, could from that provision; inferred the court viewed the matter as a posing question whether the court should effect, create a cause of action for a damages—in constitutional tort—to violation, a Fourth remedy Amendment Congress even had not though specifically such a provided even the Fourth though Amend ment does not for enforcement provide (Id., an award of by damages. at pp. id., 395-397 S.Ct. 2004-2005]; see also at pp. 398-411 S.Ct at pp. [91 [91 at Harlan, pp. (cone. by reasoned opn. J.).)5 high court 2005-2012] “ as a general ‘federal use courts available proposition may ” make good the at wrong done.’ 396 S.Ct. at (Id., p. p. 2004].) [91 warranted, of its conclusion that a support damages remedy court there emphasized existed “no (i) special factors hesitation” to counseling recognize there (ibid.); (ii) was no effective alternative equally at at remedy (id., p. 2005]; id., 397 S.Ct. also p. see at S.Ct. [91 [91 Harlan, pp. (conc. opn. there was no J.)); (iii) “explicit 2011-2012] congressional declaration that persons injured by federal officer’s violation of the Fourth Amendment recover money from the agents” (id., S.Ct. at p. 397 p. 2005]).6 [91 Bivens, the United States

Subsequent Court has considered Supreme numerous cases which have sought under plaintiffs money damages constitutional cause of action the asserted premised upon violation various federal constitutional After provisions. Bivens, twice the lead of following of a recognizing availability tort action for on strength of considerations set out (Davis above v. Passman (1979) 2264, 2277, U.S. S.Ct. 60 L.Ed.2d (Davis) [damages [99 846] allowed violation former by congressman of protection equal Fifth Amendment due component clause]; Carlson v. Green U.S. 1471-1474, S.Ct. 64 L.Ed.2d 15] [damages allowed (Carlson) Amendment violations remedy Eighth prison officials]), two decades high past has repeatedly refused to recognize federal constitutional tort action money cases that issue. presenting v. 462 U.S. (Chappell Wallace 5The question merely petitioner, court asserted: “The whether if he can demonstrate injury consequent upon agents rights, federal his Fourth Amendment injury particular entitled to his through normally redress remedial mechanism available in liberty federal very certainly courts. ‘The essence of civil consists [Citations.] laws, every protection injury.’ Marbury individual to claim the he whenever receives an Madison, (Bivens, (1803).” Cranch L.Ed. 403 U.S. 1999, 2005].) S.Ct. Bivens, holding, against agents 6In so allowed comparable U.S. suits federal Congress agents to the suits that expressly permitted against through state the enactment of 42 United States Code 1983. equal 2362, 2368, [alleged protection (Chappell) 76 L.Ed.2d S.Ct. 586] [103 v. Lucas Bush military]; in United States officer by violations superior First 2404, [alleged L.Ed.2d (Bush) 367 S.Ct. 76 462 U.S. 648] (1983) [103 United by superiors]; federal agency employee violation against Amendment 3054, 97 L.Ed.2d 483 669 S.Ct. U.S. Stanley (1987) 550] States v. [107 course of during the by military personnel due violations [alleged process 412 v. 487 U.S. Chilicky (1988) Schweiker service]; [108 active military by due violation 2460, [alleged 101 L.Ed.2d (Schweiker) S.Ct. 370] benefits]; officials, Social Security in deprivation government resulting 996, S.Ct. 127 L.Ed.2d 510 U.S. 471 Meyer FDIC v. 308] [114 termination concerning employment [alleged (Meyer) 534 v. Malesko U.S. Corp. Services agency]; federal Correctional 520, Eighth 61, 515, [alleged (Malesko) 151 L.Ed.2d 68 S.Ct. 456] [122 halfway house].) of federal prison violation by private operator Amendment found that the first cases, court high In each these more recent that “counsel hesi factors” above—“special Bivens consideration mentioned tort remedy— in a constitutional recognizing tation” court 388, that 403 U.S. remedy. (Bivens, militated against recognition supra, from, cases, in also retreated substantially And these recent reformulated, mentioned above. The and the other Bivens considerations will alternative not court has found that the absence of “complete” “meaningful” an as a alternative damages, long action so support U.S. at 386 S.Ct. or federal law is available 462 (Bush, supra, p. state [103 Schweiker, at at 422-425 S.Ct. 2415-2416]; at 478 U.S. pp. supra, pp. [108 mentioned and the proposition, it has discarded 2467-2469]), implicitly pp. Bivens, 1999, 2004-2005], at S.Ct. U.S. 396-397 supra, pp. [91 Davis, 2277- 442 U.S. 246-247 S.Ct. emphasized supra, [99 Carlson, 1471-1472], S.Ct. 446 U.S. 19-20 2278], supra, [100 unless Congress prohibits that are available money damages presumptively at U.S. at S.Ct. p. pp. (e.g., Chappell, supra, [103 2412-2418]; Bush, at at 2367-2368]; pp. 462 U.S. 380-390 S.Ct. supra, pp. [103 weiker, 2367-2368]; at S.Ct. at pp. U.S. supra, p. [108 Sch 1005-1006]).7 S.Ct. Meyer, pp. U.S. Bivens, it has core 7Although high not abandoned court has declined extend case, validity its continuing of that decision and holding recognized has S.Ct. 1085- McCarthy Madigan (1992) U.S. 144-156 progeny. (See prisoner, required to exhaust administrative federal [plaintiff, 117 L.Ed.2d 291] Malesko, Bivens]; Eighth Amendment action under prior pursuing remedies an against may not be asserted [holding that a Bivens claim U.S. S.Ct. officer].) against an individual agency, noting but a claim be asserted in other experience jurisdictions has been similar. Some out-of-state decisions, often relying combination of (i) jurisdiction’s indig- antecedents, enous common law (ii) legislative special history, (iii) Torts, 874A,8 Restatement Second have recognized constitu- tional tort cause of action and awarded corresponding money damages for state various constitutional violations.9 greater A number of cases, however, often tracking reasoning most recent United States Court decisions or to the Supreme absence of historical basis pointing action, for implying damages have declined to such a constitu- recognize tional tort or implied damages remedy variety in a of circumstances.10 post, part (quoting discussing 8See IV.B. provision). and the Restatement 172, 223, 9See Brown v. State New (1996) York 89 N.Y.2d 188-192 N.Y.S.2d 674 [652 of 1129, 1138-1141, N.E.2d (Brown) (damages 75 A.L.R.5th allowed for of violation 769] search equal protection state’s and seizure and provisions, upon based Restatement Second of Torts, 874A, early authority recognizing New York case damages to for violations, and the of adequate remedies); absence alternative v. Widgeon Hosp. Eastern Shore (1984) 921, Center 300 520 (damages Md. A.2d (Widgeon) for allowed [479 923-925] of provision, violation state’s and part upon English search seizure based in well-established early Maryland antecedents); common Dept. (La. law Moresi v. & Fisheries of Wildlife 1081, 1990) 567 (Moresi) (damages permissible remedy So.2d illegal 1091-1093 to search seizure, part upon English law); based in common see v. 244 (1998) also Binette Sabo 688, Conn. 23 (damages A.2d state allowed for constitution search seizure [710 699] violation; remedy court supported by “compelling found policy and the considerations” any special counseling against recognition absence of factors an action); of such v. Corum University 276, North (1992) Carolina 330 N.C. S.E.2d (suggesting 761 [413 289-291] of may damages violation, remedy speech be to free upon allowed state based state common law authority, noting but defer remedies); City that courts must to alternative Tuckaway Old v. of (1993) 323, 328, Wis.2d 254 (suggesting 180 N.W.2d fn. in dictum [509 4] Greenfield damages process clause); allowed to violations of state see also Walinski 89, v. (1978) Ill.App.3d Morrison & Morrison 60 616 Ill.Dec. N.E.2d 377 [18 243-245] (Walinski) (damages clause; allowed to violation of constitutional antidiscrimination court found the of provision through drafters intended to create a right enforceable damages). upon money damages Other decisions which relies hold do not to be available. v. Phillips Development Youth Program (1983) 453], merely Mass. 652 390 N.E.2d [459 issue, recognizes jurisdictions differ on this not question. and does otherwise address the id., Likewise, (See Cooper Nutley Printing fn. the earlier of case v. Sun Co. (1961) 36 N.J. possess equitable 1891 A.2d stressed that powers courts broad [75 639] violations, remedy such specifically money (Id., but did damages. endorse award of pp. 644-645.) Dept. (Alaska 1992) 10SeeDick v. (Dick Fischer) Fischer Dev. Admin. 268 P.2d (no damages process provision, allowed for asserted violation of state due based in part availability remedies); (Colo. 1996) of alternative County Board Com’rs v. Sundheim (Sundheim) (no damages P.2d allowed for asserted violation of state due provision, upon availability part remedies); Kelley Property based in of alternative Dev. v. damages Town Lebanon (Kelley) (no 226 Conn. A.2d 923-924] for availability allowed asserted provision, part upon violation of state due based in special counseling recognize right); alternative remedies and factors hesitation to such a Reyes 1997) (Fla.Dist.Ct.App. (summarily holding Garcia So.2d is no there cases aside Putting a similar trend. have followed decisions California viola- remedy a damages action for an inverse condemnation recognizing (a clause state just compensation tion ain judicial determined damages an award that clearly contemplates two decisions, each filed two Const., art. 19),11only see Cal. proceeding, a violation for have an action ago, recognized decades have the issue decisions subsequent addressing All the state Constitution. review, We damages. proceed find such an action for declined to order, cases. the relevant California chronological 24 Cal.3d 458 Tel. Tel. Co. (1979) Assn. v. & Gay Law Students Pacific addressed an Law this court Students), P.2d (Gay Cal.Rptr. v. State process guarantee); Judge 77th Dist. right money violation of state due (77th (no Judge) Dist. Mich.App. N.W.2d 339-340] noted, availability rights; among things, equal protection state other for violation of legislative policymaking expertise); Moody v. Hicks relief deference to alternative of state search 1997) (no damages (Mo.Ct.App. 956 S.W.2d asserted noted, among things, availability of alternative relief and rights; other and seizure court Prop. legislative Mountain v. Town policymaking expertise); deference to Rockhouse of 1385, (no damages for Conway (1986) (Rockhouse) A.2d 127 N.H. 593 1388-1389] [503 violations, availability part upon based in of alleged process equal protection state due and 249, 835, remedies); (1997) v. 244 N.Y.S.2d Augat alternative State A.D.2d 836-837 [666 Brown, supra, 1129], (declining N.Y.2d 172 N.E.2d to allow to extend 89 251-252] [674 upon rights, and of damages process for asserted violation of due freedom association based availability remedies); (1997) N.C.App. 126 561 S.E.2d of alternative Hanton v. Gilbert [486 clause, 432, damages alleged part due in (no process for violation of state based 438-439] legislature); Cty. upon availability v. of alternative remedies and deference to Provens Stark 959, (Provens) (no (1992) Bd. Mental Ret. 64 Ohio St.3d 252 N.E.2d [594 963-965] of violation, availability alleged of speech part upon for state free based in alternative City Eugene P.2d legislature); (1990) remedies and deference to Hunter v. Or. 298 309 [787 of 881, upon (no damages alleged part “free in expression” for state violations based 883-884] right; that of implying of textual or for such a court concluded creation absence historic basis legislature); (Tex. 1995) v. City a task Beaumont Bouillion properly such a left of 143, violations; assembly (no damages alleged speech free and 896 S.W.2d 148-150 state to be provisions noted that were intended court there was no evidence violations of by damages, that or common basis for remedied and observed there no historical law 2000) damages action); Spackman (Utah v. recognizing Spackman ex rel. Board 16 of Educ. 533, “open and (no for asserted state (Spackman) P.3d 537-539 violations, availability part in alternative remedies and deference to upon education” based of 924, (Shields) (no legislature); (1995) v. 163 Vt. 219 A.2d Shields Gerhart 929-934] [658 violations, speech part free and due based for asserted state availability remedies). of alternative City Lafayette Cal.Rptr.2d (1994) Locklin v. 7 Cal.4th 362-367 11 See [27 724]; Cal.Rptr. 475 P.2d Superior v. Court 3 Cal.3d P.2d Holtz [90 441] Const., 14); (1942) 19 Rose v. State Cal.2d (applying Cal. former art. § of California “self-executing” supports and an action for (same, noting P.2d 505] County Santa Clara statutory authorization); Weber damages, even in absence of (1995) Cal.App.4th generally Superior Gates v. Court (same); 59 Cal. see history just (setting compensation of the Cal.Rptr.2d out relevant 519-524 [38 489] contrasting protection clause). history equal relevant clause and it with action by who claimed were employees they discriminated their against by employer, state-regulated on the telephone company, basis of their sexual orientation. Our observed opinion plaintiffs sought declaratory relief, and “also injunctive (Id., prayed monetary at damages.” p. Without 464.) addressing expressly question availability dam- ages in addition to relief, the requested we held that equitable plaintiffs actipn” could maintain a “direct under the California equal protection Students, clause, 7(a).12 Law (Gay supra., 475 & fn. p. 10.) In the process announcing added holding signal a “cf.” Bivens, citation U.S. S.Ct. supra, 2001-2005], Students, Law (Gay Students, Plaintiff our suggests that citation in Gay Law Cal.3d 458, to those of Bivens pages implies approval of a for the damages remedy equal protection violation asserted in Gay Law Students. the last few Only cited pages however, from Bivens to the spoke question damages, given Students, circumstance that in Law we did Gay not explicitly address question of it would be damages, an overstatement to interpret decision, Bivens, or its citation to as directly endorsing such remedy. does, however, Plaintiff find for his support position opinion in Appeal Laguna Co. v. Golden Rain Publishing Foundation (1982) Cal.App.3d Cal.Rptr. (Laguna case Publishing). the Court of decision, Appeal, two-to-one held that the owners of a private retirement gated violated a community state newspaper publisher’s free rights Const., I, 2, art. speech press (Cal. subd. (a)) by enforcing a rule the distribution barring of unsolicited free within the newspapers and the community, court remanded the case new for a trial at which the would plaintiff have an to opportunity prove damages. (Laguna Publishing, at In pp. 848-857.) reaching this conclusion that expressly finding available, damages were money majority the stressed the dignity” of “special “the of free rights free at speech press” (id., italics in p. original), that violation thereby suggesting may of such be remedied rights by equi- table relief and/or but damages that violation of other constitutional of rights “lesser” dignity not warrant in may relief did not damages. majority I, consider whether article section subdivision was to afford a (a) intended and, instead, damages remedy, to have a found to appears right damages a based tort upon theory constitutional similar to that in Bivens employed and its progeny. filed, after was the of in

Shortly Laguna Publishing Fenton Appeal v. Groveland Community Services Dist. (1982) Cal.App.3d case, I, setting liberty right 12In addition to the due process out at issue in article this 7(a) provides, person section also “A may equal protection be . . . of the not denied laws it was claimed a suit in which considered Cal.Rptr. (Fenton) 758] to vote a general the their plaintiffs right officials denied county various the asserted to damages action for filed an plaintiffs election. The II, section 2. Constitution, article under California rights of voting violation and without of immunity, various claims addressing In of the the asserted a for of as damages the focusing propriety upon there violation, endorsed, the notion passing, the court impliedly a of the state constitu- to violation damages a seek right exists 816, the Publishing, Cal.App.3d to vote. As in right Laguna tional right-to-vote Constitution’s did not consider whether our Fenton instead, relied simply it remedy; to afford such a was intended provision of dignity” right and the asserted upon Laguna Publishing “special law. (ibid.)13 inverse condemnation case 805), vote (Fenton, distinguishable. held in White v. upon by plaintiff are We 13Five other decisions relied Cal.Rptr. 222], that Constitu 533 P.2d California Davis 13 Cal.3d 775 [120 i.e., I, self-executing, that the constitutional tion article section “intended ” Californian,’ itself, right every legal privacy for provision, in ‘creates a and enforceable of any injunction. not address claim supported and hence an action for an But did consider or 17], damages. Payton Cal.Rptr. City Cal.App.3d Santa Clara for In of following granting judgment of was entered Appeal the Court of reversed a dismissal that rights privacy under California summary judgment in an action for violation of motion Constitution, employer’s act of article 1. The claimed arose from an in public therefor workroom. posting plaintiff’s of the termination and reasons notice (Payton, p. 154), the court did Although noting plaintiff prayed that the had complaint prima availability damages, only held that the stated a not address the of such but University (1976) 64 privacy. Porten v. San Francisco facie violation distinguishable. There the Cal.App.3d Cal.Rptr. similarly (Porten) 825 [134 university claiming that privacy, sued for under the state Appeal grades he earned at an school. The Court of improperly disclosed had out-of-state legislation. In brought, enabling despite concluded that action could be absence of conclusion, reaching assumed that would be appears the court have event, violation, analyze question. available but did or discuss foregoing privacy provision was rendered under each decisions history—and directly point here. We relatively legislative 1—a with rich is not on privacy present no in the the circumstances under which have occasion consider case damages. support a cause of action for clause the state Constitution Cal.App.3d 435 by plaintiff—Wilkerson City v. Placentia Two decisions cited of City (1979) Cal.App.3d 340 Cal.Rptr. Lubey County and San Francisco and 294] arising they in point, process involve due claims Cal.Rptr. closer on because 440]—are context, the us. Those employment they distinguishable but are from case before the too following a backpay, process due for reinstatement with approved decisions an action defendants ob- employees the for misconduct. As probationary violation in termination of serve, however, suggest possessed a due plaintiffs the facts in that the both cases case, present plaintiff liberty In the property interest as well as a due interest. Moreover, his neither Wilkerson process property position. had no in concedes he due interest damages in an action based Lubey explicitly analyzed question the are available nor whether I, 7(a), any other directly solely process provisions the article section or upon and provision. constitutional Most California cases that have addressed the subsequent availability damages—all decided the Court of by Appeal—have taken an approach different from the tort” “constitutional analysis Bivens its progeny. Whereas and many Bivens of the federal and state decisions that have its applied have focused the in principles upon circumstances which a court should create a or tort action recognize a premised upon of consti- tutional most California decisions provision, issued the during past two decades, contrast, have viewed the determinative as whether an question action for in exists can be inferred the (or constitutional from) at issue. most of the recent Accordingly, California decisions focus their expressly analysis whether the upon provision at issue was intended, either expressly to afford relief in impliedly, damages.

In Leger, school student who Cal.App.3d high was assaulted a restroom the sued school district for under the “safe Constitution, I, schools” clause of California section subdivision I, (article (c) The Court of 28(c)).14 reviewed the Appeal history that provision, which was added to the Constitution as part of broad criminal justice initiative and found “no indication ... to suggest intended to an action for support damages in absence of enabling at defining legislation.” (Leger, p. 1456.) The court also observed that had not advanced a constitutional tort theory recovery, and to declined address such (Id., at fit. theory. court held that p. 4.) plaintiff could maintain an action for damages. v. San Clausing Francisco School District Unified Cal.App.3d Court of Cal.Rptr. (Clausing), the consid Appeal ered an action for asserted violations of both “safe I, schools” clause and the (art. 28(c)) clause privacy 1) (art. § Constitution, California based a school district’s alleged physical emotional mistreatment aof student. On first handicapped point, court with agreed Leger, Cal.App.3d finding “nothing the legislative history of section (c), suggest subdivision that it was intended create a civil action damages.” (Clausing, supra, On the second Cal.App.3d p. 1237.)15 con point, summarily cluded affords privacy provision only relief and injunctive 28(c) “Right 14Article states in full: to safe schools. All students and staff of public primary, elementary, junior high high and senior schools have the inalienable safe, campuses peaceful.” attend which are secure and 15The right proclaimed by provision], court stated: “The although [the mandatory, enunciated; inalienable simply establishes the parameters principle specific means which it to be the people achieved for of California left are to the Legislature.” (Clausing, supra, Cal.App.3d The court further observed in 28, I, respect footnote: “In this (c), closely analogous section subdivision to article

315 8.)16 the court (Id., Accordingly, at damages. p. to not afford right does 123 damages. action for to allow either declined Court, 481 32 supra, Cal.App.4th v.

The in Gates Superior plaintiffs of their under rights an asserted sought damages to (Gates) Const., I, based 7), upon art. clause (Cal. state equal protection tiie § a riot. The during discriminatory police protection allegedly deployment nor the court’s of the provision, the language court found neither underlying documents provision, review of the historical extensive at (32 a damages remedy Cal.App.4th intent to afford revealed an action.17 and to allow such 519-524), declined pp. Ana (1996) Cal.App.4th

In Bonner v. Santa City man stored his bag possessions a homeless Cal.Rptr.2d (Bonner), 671] the bag Hall. found City City employees a bush near the Santa Ana under of his violations asserting it. The sued for damages, and discarded (Art. protection rights. to and his equal due process property Gates, 481, found no the court Relying upon supra, Cal.App.4th 7(a).) for violations damages remedy intent the electorate to by provide clause, to allow such an action. (Bonner, and declined protection state equal at supra, Cal.App.4th p. 1473.) intent with undertook an voters’ analysis

The court in Bonner also the asserted due action regard affording 1465, 1473-1476.) violation. supra, Cal.App.4th clause (Bonner, Bivens, and its U.S. court concluded from its review supra, Davis, clause 442 U.S. 228—that supra, progeny—notably, Constitution, independent free people which ‘All are nature and of the California states: defending liberty, rights. Among enjoying and life and and inalienable these are have happiness, obtaining safety, protecting property, pursuing and and acquiring, possessing, and Clearly, although safety rights, provision this privacy.’ happiness are inalienable whereby they may enjoyed. No case ever has the Constitution does not establish means safety happiness enunciating right to obtain the inalienable held that itself, rise, for private of action self-executing gives in and of in the sense that guarantee duty particular steps take part an of the state to or affirmative on Cal.App.2d (Langdon Sayre (1946) 74 enjoyment safety happiness all citizens. v. .)” (Id. p. 6.) . fn. P.2d . . Davis, 757, in which we 13 Cal.3d concluding, upon 16In court relied White so injunction, supported action but privacy an that the clause of article held ante, Porten, which, 825, in as Cal.App.3d observed Clausing court in overlooked action based suggested money are available an the court footnote clause. violation of that same Laguna Publishing, supra, Cal.App.3d criticized the decisions in 17The court in Gates Fenton, provisions Cal.App.3d failing to discuss whether supra, 135 Cal.App.4th at damages. (Gates, supra, action for support were intended issue fn. federal Constitution an action for supports damages, in the absence of an alternative effective The in equally court Bonner remedy. hypothesized that the voters’ intent in enacting I, the due process right set out in article section was to mirror the due 7(a), in its process right recognized federal counterpart, the court in Bonner accordingly reasoned that in the absence anof alternative or effective equally remedy, state due clause process similarly provided damages. court in Bonner ultimately available, however, concluded that were not on the ground that had an effective alternative remedy—a common law action conversion. (Bonner, supra, Cal.App.4th pp. 1473-1476.)

Thereafter the v. Medical plaintiff Bradley Board (1997) Cal.App.4th Cal.Rptr.2d asserted a (Bradley) due under 483] article to his surrender 7(a), relating of a medical license while disciplinary charges were him. pending against He sought damages for Bonner, alleged violation. Relying upon supra, Cal.App.4th Gates, the court in Cal.App.4th Bradley summarily concluded: “There is ... categorically no to sue for dam- monetary under this ages constitutional provision.” (Bradley, supra, 56 Cal.App.4th pp. 462-463.) from the

Apart matter, case and the present companion most Degrassi, recent Court of decision Appeal addressing issue of general money a state constitutional violation Carlsbad Aquafarm, Inc. v. State Health Services Dept. Cal.App.4th Cal.Rptr.2d (Carlsbad case, In that Aquafarm). a shellfish sued producer a state agency for damages allegedly resulting from agency’s refusal a form that required its permit producer sell products California, outside a refusal that the claimed producer violated its procedural under process rights The court Carlsbad 7(a). held that no such Aquafarm action for damages could maintained. Bivens, The court began note of by taking 403 U.S. and most subsequent United States Supreme and California decisions discussed above. (Carlsbad Aquafarm, supra, Cal.App.4th Having discerned “no rationale single underlying decisions” (ibid.), [those] the court proposed analysis essentially combines some of the (i) factors policy-based that have been considered in the “constitutional tort” cases, and (ii) intent-based analysis by recent California Court adopted decisions, decisions: “On these Appeal reviewing we believe issue whether to state recognize a constitutional tort is one essentially policy factors, on dependent numerous the voters’ including intent permitting for violation of the monetary damages particular the extent which another remedy; (3) availability the provision^] (2) tort; manageability the judicial and ‘self-executing’ the provision After 817.) at right.” (Id., of the constitutional and importance of these factors” (ibid.), to each weight “[applying appropriate for the damages to recover was not entitled concluded that the rights. due violation of its alleged procedural state’s IV. it is employ As shall we conclude appropriate explain, action to of a determining the existence framework for following First, we shall whether inquire constitutional violation. remedy an asserted infer, within the constitutional find or may is evidence from which we there a to authorize or to withhold issue, intent either an affirmative provision this we shall In undertaking inquiry action to a violation. issue, of the constitutional provision consider language history mechanisms, imply or guidelines, procedures whether it contains including If we any history. a as well as common law remedy, ing monetary pertinent intent, we it effect. any give find shall

Second, withhold a if no affirmative intent either to authorize or found, the “constitutional tort” we shall undertake damages remedy the relevant factors in Among Bivens and its analysis progeny. adopted exists, the extent to which this are whether analysis adequate law, tort tort nature change constitutional action would established find that these factors the constitutional If we significance provision. tort, If, ends. militate constitutional our against recognizing inquiry tort, however, we find that these factors favor recognizing factors counseling we also shall consider the existence special action, legislative deference to including hesitation recognizing considerations of of adverse judgment, policy consequences, avoidance issues of and the government practical proof, competence fiscal policy, damages. courts to assess particular types

A. whether, the constitutional our when begin inquiry by asking We that it include a at issue enactors intended provision adopted, (Carlsbad supra, for its violation. damages remedy Aquafarm, Gates, 481, 517-518, and cases 809, 817; Cal.App.4th Cal.App.4th Davis, cited; 775.) see 13 Cal.3d White generally face of provision— an intent be clear on the quite particular Such article it is that California Constitution for example, plain which provides “[pjrivate may be taken or property damaged public use when only just ascertained compensation, waived, unless has by jury to, for, first been paid owner,” into court supports an action money damages, our cases consistently have so held. cases (See ante, cited fn. But with regard to most constitutional provisions, words of do not on their own manifest any such intent. The due clause falls 7(a), within latter It category. states relevant “A life, part: person may deprived or liberty, without due of property law . . . .” These process words do not disclose an explicitly intent either to authorize or to withhold aas for a violation of the provision. we must look Accordingly, farther our attempt I, discern whether article section 7(a) was intended include a damages remedy.

1. evidence of considering an implied right to seek damages, shall review the available drafting history of the at issue and materials provision that were the before voters when they the adopted measure. I,

Article section 7(a) added the state Constitution the adoption of Gates, 7 on the Proposition November 1974 ballot. (See Cal.App.4th 522-524.) The ballot pp. to all pamphlet voters provided prior to the election in 1974 general explained the measure was designed I, revise article the California Constitution’s declaration of rights, in number of one of which was to set respects, out some basic rights were then . . . the “presently contained in federal Constitution” but not listed the state charter. (Ballot Gen. Elec. Pamp., (Nov. 1974) of analysis Prop. p. 26.) Among rights, the Legislative the Analyst explained, was right: A not following “(b) person may deprived or life, liberty, property of without due process the lawA italics (Ibid., added.) of the state Although long Constitution had contained a worded due similarly Const., process prior I, Cal. provision (see former art. 13§ [“No life, shall be . . . person deprived liberty, without due property process Const, of law”]; I, Cal. art. [same]), previous incarnations the state constitutional process due were contained right within broad provi- sions forth the setting amendment, of criminal rights defendants. The 1974 the clause in placing was designed to make it clear that 7(a), but in criminal prosecutions, not only the due guarantee applied process civil as well.18 general afforded that preceded of the debates relevant passages have reviewed the

We Browne, of the Rep. (See and 1879 Constitutions. adoption Const. on Formation State of Cal. Debates in Convention debate], 474-475 without 30-31, language due 41 [adopting pp. Constitu- California,” introducing proposed People “To [Address Convention Stockton, Cal. Const. Proceedings, Debates and & tion]; Willis 1188-1189, 1425-1426, 1491, pro- 1878-1879, [adopting pp. “To the debate], People 1521-1524 without language cess [Address Constitution].) California,” parties introducing proposed State of discovered, these materials cited, indication in nor have we have whether the drafters considered predecessors suggesting question to article would 7(a) provide Walinski, of the due clause. liberty (Cf. interest Constitution’s antidiscrimina-

N.E.2d Illinois [drafters action through intended to create a to enforce that tion clause Brown, 1129, 1139- N.Y.2d N.E.2d 89 189 damages]; supra, would York assumed that New Constitution 1140] [drafters violations, and seizure remedy implicitly be allowed to state search that Nor have we discovered evidence any allowing remedy].) approved revision, as noted broadened the due the drafters of 1974 which process issue so to both criminal and civil considered the rights, as afford guarantee Com., Article I (Declara- or had such intent. Cal. Const. Revision (See 6-16 1969) [concerning tion of Background Study (Aug. pp. Rights) I, id., 21]; Background Study revision of former article section proposed I, revision of former article 1969) [concerning 19-28 (Dec. proposed pp. Com., I 13]; Rights) section Revision Article (Declaration Cal. Const. I, revision of former art. [concerning II 3-5 pp. proposed Rep. (Jan. 1970) revision of id., 21]; 1970) [concerning proposed IV Rep. (Feb. pp. § Revision, I, Com., supra, Revision 13]; former art. Cal. Const. Proposed § id., at to in criminal proceedings]; due [concerning process p. of due [concerning rights process equal protec- extension civil Com., to Relating Materials tion]; Rep., see Cal. Const. Revision generally I, provided which that no citizen Commenting upon existing the then article section (see granted to all other citizens current granted privileges or immunities not also shall I, pro (b)), the California Constitution Revision Commission section subdivision protection and due granting equal “a clause posed prohibition, but also add maintain Although Amendment to the Federal Constitu process persons. law to all the Fourteenth equal protection, the believes our fundamental process tion assures due Commission Com., guarantees.” (Cal. Proposed legal Const. Revision provide document should also these I, proposed article section the substance (pt. 1971) p. on Revision 29 [comment I, (b)].) subsequently (a) art. subds. which became Provisions in Cal. Const. Recommended Endorsed by Com. (Dec. 1974) pp. 74-82.)

We also have examined the materials that were before voters placed when the last was amended in 1974. (Ballot Gen. Elec. Pamp., Gates, (Nov. 1974) Like Court of Prop. 7.) Appeal supra, 481, which examined these Cal.App.4th same materials in order to consider the voters’ intent to create a implied with to the respect clause equal protection (Gates, of article 7(a) 522-524), pp. find in the nothing ballot materials to that the voters suggest affirmatively create, intended to within article 7(a), with damages remedy to the due respect clause set forth process in this constitutional provision.19 Indeed, there is that the nothing suggest issue was considered all. above, decision, Bonner,

As noted one recent Cal.App.4th otherwise, concluded that the voters in finding 1974 intended to permit action for a state due violation if there process is no alternative remedy. The court in Bonner reasoned that because voters’ pamphlet 1974 advised that Proposition rights would add “presently . . Davis, . in” charter, contained the federal and because 442 U.S. 228, the United States Court construed the Supreme com- equal protection ponent clause permit damages remedy for a federal violation in circumstances in no available, which other remedy was voters who adopted must have intended to Proposition provide damages for a state constitutional due whenever a plaintiff has no alternative (or effective) remedy.

We find Bonner's voter intent to be analysis the unpersuasive, adopt critique that conclusion set out in Carlsbad Aquafarm, supra, the 809. As Court of Cal.App.4th in Carlsbad Appeal out: Aquafarm pointed Passman, “First, Davis v. supra, U.S. and the United subsequent States relied Bonner were Supreme authority upon by decided after 7’s the voters. It not Proposition adoption is reasonable to infer from the by statement in the single voter’s that the voters would have pamphlet predicted the United States Court’s extension of to Supreme Bivens due procedural Second, claim. in the voter language relied pamphlet upon by Bonner court states only Proposition ‘rights’ into state puts ‘ ’ Constitution that are in the “presently contained federal Constitution.” purport claims, pamphlet damages 19Defendants to find in the ballot an intent to bar based therein, upon Legislative by Analyst, statement proposition not does “[t]his government (Ballot Pamp., (Nov. 1974) analysis increase costs.” Gen. Elec. of Prop. p. 26.) We do pamphlet reflecting not read this line from the ballot any preclude as intent to actions for right the violation of set out the ballot measure. This statement (Bonner, omitted.) italics at p. 45 Cal.App.4th supra, were they have understood would mean the voters necessarily does not to Court with respect Supreme the United States analysis adopting (Carlsbad Aqua rights.” to those damages remedy pertaining of a existence 819.) p. farm, Cal.App.4th supra, intent is of voter unpersuasive, analysis that Bonner’s

Plaintiff concedes to have intended provide voters must that the but insists nevertheless adoption such a provision’s because without damages remedy other construction “any act” and meaningless a “vain and [of would be . . .” are a mere . We mockery . its language . . make would provision] I, section 7(a) embodied article right Even if the due process unpersuaded. relief, and declaratory an or through injunctive action only enforceable rendered hardly this constitutional damages, provision an action for or innocuous empty. the voters when they that were before that the materials conclude

We November 7(a) the current version adopted itself an intent that the provision permit no which infer basis provide of that clause. action for 2. if not setting even next consider the extent which provision, We contains nevertheless damages, forth indication of an explicit mechanisms, which a or from procedures “guidelines, 1455; Carlsbad 202 Cal.App.3d could be inferred.” (Leger, supra, or of such express presence Cal.App.4th Aquafarm, an inference mechanisms, support guidelines, procedures implied to afford such remedy. that the was intended the court in Carlsbad Aquafarm, with Again, agree in the context 809, which, this consideration addressing Cal.App.4th observed process, violations of procedural alleged nor suggests any guide neither includes that article section 7(a) lines, mechanisms, general principle but instead “reflects or procedures, s“ bemay those principles rules means which by ‘without down laying ” ’ 1455.)” 202 at Cal.App.3d (See Leger, supra, the force of law.’ given Although plaintiff at p. 822.) supra) Cal.App.4th (Carlsbad Aquafarm, to fashioning govern courts are capable procedures asserts California so, it to the context, relevant may claims in this damage there is whether at this stage analysis here at issue. point question inferable mechanisms, reasonably set out in (or are guidelines, procedures from) the provision itself from which voters, we infer that the may in adopting 7(a), affirmatively intended the provision an action for permit to a remedy violation of that clause. Article mechanisms, contains no such 7(a) guidelines, or procedures.

3. evidence of an considering right to seek implied damages, we also examine, believe it to as have appropriate sister state jurisdictions that have permitted violations, suits search damage and seizure common infer, law from history which might issue, within the provision intent to an action for provide violation of that Brown, provision. (See 172, 89 N.Y.2d supra, 1129, N.E.2d 1138-1139]; Moresi, 923-925; 479 A.2d Widgeon, supra, supra, So.2d 1091-1093.)

For example, recognizing remedy violation the state search and seizure and equal protection the New York provisions, observed that “the courts have Appeals looked to the common-law antecedents of the constitutional discover whether a damage be implied. New York’s first Constitution in 1777 recognized adopted existing common law of England and each succeeding Thus, Constitution has continued cases, in some practice. there exist grounds for implying damage remedy based upon common-law preexisting duties and rights.” (Brown, 89 N.Y.2d N.E.2d 1138].)

The court in Brown found such grounds implying action. First, observed, the court prohibition against unlawful searches and “[t]he seizures originated Carta and has been Magna of our law part statutory since 1828. The civil cause action was fully developed England provided a for the damage remedy victims of unlawful searches common law Huckle v. (see, Money, [1763]; Wils. 95 Eng. Wilkesv. Rep. Wood, Lofft 98 Eng. [1763]; Entick v. Rep. Carrington, State Tr. All ER (Brown, Rep. [1765]).” 89 N.Y.2d [1558-1774] 1139], Second, N.E.2d brackets in the court in Brown.) Brown observed that this common English law rule had been endorsed and New York court and accepted drafters the most recent state

323 an implied for support hence found historical and (ibid.),20 constitution for an action reasoning supporting Similar damages. remedy the courts by high embraced has been seizure violation a search and Louisiana.22 Maryland21 19, 242 N.Y. People v. [150 that in court in Brown observed 20The Defore Cardozo, court, English the same 586-587, 588-589], Judge the cited speaking for N.E. and seizure clause concluding in violation of the search that evidence obtained authority remedy for the that the defendant’s against in a criminal trial and be used the defendant could 172, 189 N.E.2d (Brown, supra, 89 N.Y.2d wrong damages. civil suit for consisted of a stated; availability of a civil suit for 1139].) The court in Brown also “[T]he by delegates contemplated the violation was [New as the result of a constitutional sustained was They did not consider whether suit] Convention of 1938. [such Constitutional York’s] respect is with already existed. At least that so desirable—they a civil assumed exclusion of proposed The debates over the provision]. and seizure section 12 search [the abundantly . . that clear. . unlawfully proceedings in criminal make obtained [If] evidence delegates People Defore], the Convention [opinion in v. upon [Judge] Based Cardozo’s they action used to the that available victim of unconstitutional assumed were unnecessary to deter that exclusion was argument help the Convention persuade that 416, 425, Convention, 1938, at (see, 1 Rev. Record of N.Y. Constitutional official misconduct damages for violations was concept that the constitutional 459). These debates reveal equal delegates rejected adopted the foreign by to the nor them. That Convention neither damage similarly discussing does establish protection provision without (Ibid., fn. delegates it our consideration of relief.” disfavored nor does foreclose omitted.) Widgeon, Maryland described in detail the supra, Supreme 21In A.2d Maryland courts English (id., 924-925) and then observed that pp. three cases cited above 925, citing State long expressly (Id., cases. Blum v. had endorsed the rule those continued; State, “Moreover, Meisinger 26].) 94 Md. 384-385 A. The court argument rejected the that evidence (1928), Md. 195 A. in which this Court Rights Declaration of by and seizures Article obtained unlawful searches under trials, majority opinion and dissent generally should be excluded from criminal both the recognized damages. for 155 Md. at ing opinion availability the alternate of a civil action long position seizure Legal . also have taken the that an unlawful search and ... scholars [If] against executing and the gives damage illegal officer warrant rise action both the Fraenkel, Seizures, causing Concerning . 34 Harv. L. official it to issue. . . Searches Cornelius, (2d 1930); H.D. (1921). Search & Seizure ed. Rev. 363-364 See §§ Evans, Courts Maryland Proceeding in the CommonLaw Practice—A Treatise on Course of 1916); (4th (1867); Damages on ed. Maryland Sutherland State A.2d at Wigmore (McNaughten 1961).” (Widgeon, rev. on Evidence §2183 p. 925.) Moresi, “Under the Supreme the Louisiana Court observed: 22In 567 So.2d by search and England, rights, protected as those law of where individual [the common , Magna . Constitution], by . . Carta . . preserved were .the seizure clause of the Louisiana damages. rights generally by a traditional action could remedied violation of those trespass giving rise to a trespass, as a of the constitutional viewed The violation cases, (Moresi, supra, among English 567 So.2d [Citing, other action. decisions.]” formula the framers in the textual “Considering expression of The court continued: in the convention provision], history as recorded constitutional of [the antecedents, conclude English law proceedings, provision’s] . and . . [the injuries caused a violation” of damages may or loss be obtained an individual (Ibid.) clause of the state constitution. the search seizure cited, found, The have not parties nor have we similar with any history to the respect I, interest set out in article section liberty or its 7(a), prede- cessors, I, I, former article section and article section of the Consti- tution of 1849.23 I,

We conclude that there is no indication in the of article language section 7(a), section, nor evidence in the any history of that from which find, within that provision, right to seek a implied for violation damages of the due process interest. liberty

B. determination, however, This does not end our Just as we have inquiry. not discovered basis for that a concluding damages remedy was contem- or plated I, reasonably might inferred within article 7(a) we also have not provision, discovered any basis for concluding damages was intended to be remedy foreclosed. In such circumstances, we, like the United States Court and the courts of Supreme numerous other jurisdictions that have circumstances, faced similar shall to consider whether a proceed constitutional tort action for the asserted remedy constitutional violation should be recognized. Friesen,

As observed by “[Bivens, 403 U.S. and its progeny] illustrate actually body of precedent courts, established state . .. [] in section expressed 874A the Second Restatement Torts.” [and] (Friesen, supra, 7-5(c), p. 420.)

The cited Restatement section provides: “When a legislative [or a class of protects persons by proscribing requir constitutional] ing certain violation, conduct but does not provide civil for the argues 23 Plaintiff that the court in v. (1931) Melvin Reid P. Cal.App. 285 [297 (Melvin) permitted violation, a cause of action for a constitutional and that hence, by analogy, Plaintiff, such an recognized present action should be in the case as well. however, case, I, citing misreads Melvin. the Court of Appeal, (which section 1 provides people rights” among that all “pursuing obtaining have “inalienable which are safety happiness”), recognized allegations common law tort action based that the [and] life, picture depicting defendants had made a plaintiff’s using motion earlier “shameful” action, allowing her real name. In the court in Melvin found in article section l’s guarantee “pursuing obtaining safety happiness,” policy supporting a common 291-292; (Melvin, supra, law tort action for of privacy. invasion 112 Cal.App. see also id., Brandeis, citing Right Privacy Warren & 4 Harv. L.Rev. 193 [advocating clear, however, recognition right].) subsequent of common law As cases make authorizing Melvin properly directly cannot be read as an action under article Instead, foundation, provision. a violation of that represents Melvin California, (See, privacy e.g., common law invasion of Digest tort. Briscoe Reader’s Association, Inc. Cal.Rptr. Cal.3d 1].) P.2d 57 A.L.R.3d that the remedy appropriate determines court may, furtherance if the the needed to assure the and legislation purpose effectiveness action, using of the class a right an member injured accord to provision, to an analogous existing or cause of action tort action a new existing suitable added; italics 874A, material and Torts, bracketed (Rest.2d tort action.” § constitutional includes id., [“legislative provision” com. 301 (a), p. see also provisions].)24 tort, have courts to such constitutional recognize

In whether determining provision, behind the legislative for the policy constitutional] [or “look[ed] enacted, then, it and for which was to the purpose attempting perceive the most that having purpose, ascertained policy determine[ed] [have] to the needed remedy it to out carry way appropriate identified] 874A, 303 Torts, p. ,)25 com. (d), that result.” (Rest.2d accomplish § endorsed, or explicitly, that have join jurisdictions implicitly We courts, over Restatement, authority their exercising set view out circumstances, a tort action law, recognize inmay, the common appropriate Torts, Rest.2d a constitutional violation. (See to remedy 874A, 306-308; Friesen, 420-421.) at We 7-5(c), com. (g), supra, pp. pp. § § is here. determine a tort action for damages appropriate to whether proceed 1. (See, remedies. adequacy existing e.g., first consider We Carlson, 14, Torts, 309; 874A, com. U.S. supra, Rest.2d (h)(2), p. § Davis, 228, 1468, 1472-1474]; S.Ct. U.S. supra, 20-23 [99 [100 Bush, 2404, 2264, 367, 381-388 S.Ct. 2277]; U.S. supra, S.Ct. Schweiker, 424-429 S.Ct. 2413-2417]; U.S. supra, Friesen, reporter for 7-5(c), page the Second supra, 24As observed “[t]he duty- to describe the ‘legislative provision’ in section 874A Restatement used the words tort, but, creating ‘legislative provision’ explains, as comment a to the section element of this id., (See [comparing 422-423 pp. . . . .” also provisions includes constitutional doctrine]; “negligence per se” Rest.2d contrasting a section 874A cause of action with Torts, 874A, [same].) (e), pp. 303-304 com. § requires policy decisions explained: “This 25As the drafters of Restatement cases, court, candidly. these it is the court In and it be of them and face them should aware is furtherance of the injured party. The action according a civil itself it, what is legislation and is stimulated but purpose provision] [or existing is not legislative law. judicial than modification of involved is rather do judicial gives authority it so remedy, yet tradition a civil required provide and must careful to exercise has discretion be appropriate circumstances. The court under 303; accord, Torts, 874A, cautiously soundly.” (Rest.2d (d), com. discretion § Torts, 874A, 533, 538; (h)(l)-(6), com. supra, see also Rest.2d Spademan, 16 P.3d expected give consideration in [setting “to a court pp. 308-310 out factors which needed”].) appropriate and determining whether a tort Malesko, 2468-2471]; 534 U.S. supra, 522-523]; S.Ct. Fischer, Carlsbad 809, 821; Aquafarm, supra, Dick Cal.App.4th supra, 268; Sundheim, 838 P.2d 909, 923; A.2d Kelley, supra, 621 supra, Rockhouse, 549-553; Provens, P.2d 1388-1389; A.2d supra, Shields, 959, 963-965; 594 N.E.2d 924, 929-934; A.2d 16 P.3d Spackman, supra, 537-539.)

We conclude that this consideration does not of a support recognition constitutional tort cause of action for asserted viola- tion due process interest under article “liberty” 7(a). addressing a similar issue in Carlsbad Aquafarm, supra, 83 Cal.App.4th the Court of reasoned: “Under Code of Appeal Civil Procedure section could have Aquafarm for immediately petitioned superior court a ofwrit mandate ordering Department to it with due it provide before process [the] refused to reissue a form], The [required essence of Aquafarm’s [Citations.] due claim was a that wanted to hearing permit a neutral decision to maker determine whether was correct in its determina- Department [the] that it tion had not with complied shellfish If safety] standards. [national mandate, had filed for Aquafarm a writ of than promptly rather waiting months to a file civil complaint seeking damages, it could compensatory (Id., have achieved this objective.” desired fn. omitted.) The same can be observed, said here. As the Court of below Appeal instead of attempting to defendants an proceed against by asserting action for damages, could have plaintiff to sought alleged his due process liberty interest and his concomitant to a “name-clearing a hearing” by seeking writ of mandate under Code Civil Procedure section defendants to a compelling Indeed, it provide name-clearing hearing.26 that, seems ironic in whereas his below and in his briefs pleadings before this court plaintiff frames issue whether he is entitled to narrowly—as to damages remedy defendants’ to failure him with a provide name- timely clearing fact, hearing—in himself did not plaintiff seek to timely compel such a action hearing through Moreover, an under 1085.27 plaintiff also could have to establish sought a violation his due process liberty by seeking ante, interest declaratory relief. injunctive (See pt. II.) observed, 26The Court Appeal argument Regents below oral stressed ‘at all “[a]t [plaintiff] University times’ a hearing policies. Regents argued had under The [plaintiff] right by failing had request hearing.” waived 27Although the parties point, timely have discussed plaintiff sought had writ action, under mandate section 1085 and prevailed plaintiff might in that been have entitled to damages pursuant obtain in such an action Code of Civil Procedure section which provides part judgment given relevant the applicant for a mandate “[I]f [in proceeding 1085], applicant may under damages recover the the applicant which (See, e.g., Apte University has sustained . . . .” v. Regents (1988) 198 of California Cal.App.3d 312].) Cal.Rptr. 1099-1100 [244 delay the alleged for addition, had an adequate plaintiff of a defamation by way hearing,” “name-clearing an offering adequate sues for timely who observe, “because the Regents action. As are an damages injury, for obtain reputational defamation name-clearing ‘delay’ providing actionable adequate remedy reputation.”28 protect plaintiffs sole hearing—whose purpose militates against remedies alternative of these availability adequate circumstances in the of action of a tort cause creation judicial presented.29

2. action would tort the extent which We next consider 874A, Torts, com. (h)(5), p. 310.) tort law. Rest.2d change (See established asserted violation action to Plaintiff that a suggests tort law as codified interest is liberty contemplated his that The former section provides sections 1708 and 3333. Civil Code the bound, contract, injuring to abstain from is without “[ejvery person (Civ. his another, rights.'' of or infringing upon any or property person of the of “for breach Code, The latter statute added.) provides, italics § contract, damages, except of not from the measure an obligation arising Code, which will this the amount is provided by where otherwise expressly whether it caused thereby, for all the detriment compensate proximately in Code, the 3333.) Echoing majority be or not.” could anticipated (Civ. § some reliance 816, which placed Laguna Publishing, supra, Cal.App.3d statutes, that the asserted violation suggests these plaintiff 1708, this of section that in case falls within ambit a correlative to recover right any reason section 3333 by of “imports . . . .” right from the violation of damages resulting proximately Publishing, (Laguna p. in dissenting concurring opinion

As Kaufman observed his Justice however, not substantive Civil Code “section Publishing, Laguna statute; in tort cases. damages measure of general it merely prescribes bound that 1708[,] provides every person Code section which Civil another or of infringing of property abstain from injuring person noticed, initially 28Indeed, judicially as is documents that we have revealed defamation, dropped prior that claim but Regents and various Doe defendants for sued ruling trial on the demurrer that claim. court’s case, availability of a federal law role the 29In need and do not determine what we 1983) play in the determination whether example, under 42 U.S.C. should (for § provision. recognized of a for violation state state action should his states a rights, law, it general of but principle provides hardly support of the novel adoption legal proposition a violation subdivision (a) section 2 article I of the California Constitution rise gives to a direct cause of action for damages outside tort law . . parameters recognized . (Laguna Publishing, supra, Cal.App.3d dis. (conc. & opn. Kaufman, We J.).) reject plaintiff’s contention action to rem an asserted violation of his due edy process liberty interest is contemplated by tort law as codified Civil Code sections 3333.

3. We also consider the nature of the provision and the significance of Torts, 874A, seeks to purpose effectuate. (Rest.2d com. (h)(1) (4),& matter, As a pp. 308-310.) general the due interest of process “liberty” article I, section is both 7(a) important fundamental.

Plaintiff relies upon Laguna Publishing, supra, Cal.App.3d which the stressed the Appeal majority “special dignity” rights of free and free speech while press, finding to seek right a violation state free clause, and free speech press 2(a). (Laguna Publishing, supra, italics in Cal.App.3d original.) Sub Fenton, the court sequently, supra, 135 reached a Cal.App.3d similar conclusion a violation concerning Const., II, of the to vote art. (Cal. 2),§ relying upon Laguna Publishing, and the asserted “special dignity” to vote. Plaintiff asserts that a similar conclusion here. applies factor,

Although agree abstract, that this in the is a consideration that favors recognition of a constitutional tort action for we also find damages, persuasive view set in cautionary out Carlsbad 83 Aquafarm, supra, Cal.App.4th 809: this factor “While be a consideration in the proper overall it not is one analysis, upon which we great significance. How place does one rank of importance different . constitutional . . provisions? we due say procedural process should be right accorded more or less [C]an free dignity speech voting agree We that the due rights]? right [than is fundamental. But absent the the other relevant applicability of fac here, tors discussed the relative importance the constitutional little of of help determining availability damages remedy of of 823, right.” (Id., italics at p. added.)30

The same can said here. The alternative availability meaningful remedies leads us to decline to a constitutional tort to recognize asserted violation of article the case before 7(a) us. light analysis, disapprove methodology employed by 30In of our we the courts Foundation, in Laguna Publishing v. 816, supra, Golden Rain and Fenton Cal.App.3d 131 Dist., Community

v. Groveland 797, supra, Services 135 extent Cal.App.3d to the

4. recogni militate against factors the foregoing conclude that Because we the asserted violation to remedy tort tion of addition, whether consider, case, we need in this interests liberty a damages such in recognizing hesitation counsel factors would special considerations discussed found, however, that the If hadwe action. tort, would, actually before of constitutional favored recognition above factors tort, any special consider existence also recognizing action, deference including a damages in recognizing hesitation counseling con policy consequences,32 of adverse avoidance judgment,31 to legislative issues proof,34 fiscal practical of governmental policy,33 siderations damages.35 to assess particular types of courts competence V. to infer within sum, no evidence from which we discern seek afford a intent to 7(a), in this case. We alleged interest the due process liberty violation of asserted tort a constitutional action recognize also find no basis which damages. is affirmed. judgment Appeal J., Moreno, J., J., J., Chin, concurred. Kennard, Werdegar, reached express the correctness of results opinion. no view on inconsistent with We in those cases. Schweiker, Bush, 367, 2404, 2407]; supra, 487 U.S. supra, 462 U.S. S.Ct. 31See [103 471, 2460, 427, 2469-2470,2470-2471]; Meyer, 412, supra, 510 U.S. [114 S.Ct. [108 2362, 2367-2368]; 296, see S.Ct. 1005-1006]; Chappell, supra, 462 U.S. S.Ct. 922; Mich. Kelley, Department Health supra, A.2d Smith v. Public also Judge, by Brickley, (Smith); supra, 77th Dist. J.) (opn. N.W.2d 337; Spackman, 16 P.3d 539. N.W.2d Malesko, 909, 923-924; S.Ct. 534 U.S. Kelley, supra, 32See 627 A.2d Smith, 1005]; 515, 521]; supra, 410 N.W.2d Meyer, supra, S.Ct. 510 U.S. 485 [114 Torts, 874A, (h)(3), pp. com. by Brickley, J.); generally see Rest.2d (opn. 309-310.) Bivens, 996, 1005-1006]; 471, supra, 403 U.S. 486 S.Ct. Meyer, 33See 510 U.S. [114 Authority (Alaska 1981) 388, 1999, 2004-2005]; Housing King v. Alaska State S.Ct. 396 [91 vein, 909, 256, 259-261; it has been A.2d 924. In related Kelley, supra, 627 633 P.2d cause of action will that the new also should consider burden suggested that courts “[t]he Torts, 874A, (h)(6), p. machinery.” com. judicial (Rest.2d place on 809, Aquafarm, Cal.App.4th 83 822. Carlsbad 34See 1999, Bivens, 388, opn. (conc. & S.Ct supra, 403 U.S. 408-409 footnote 2011] 35See [91 874A, Torts, (h)(3), pages Harlan, comment of section J.); see Restatement Second of also 309-310. J.,

BROWN, and I concurin the Concurring Dissenting. affir majority’s mance of Court of Appeal’s judgment barring from seeking violation of his state constitutional to due process. view, however, my it is not but only unnecessary entirely go to inappropriate beyond short, clear answer question presented or consider other than the anything and drafters’ intent in history deter mining whether a constitutional is enforceable an action in tort. provision by cites no and offers majority authority no rationale for applying “constitutional tort” the United analysis by States Court in adopted Supreme Bivens v. Six UnknownFed. Narcotics 403 U.S. 388 Agents (1971) S.Ct. [91 1999, 29 L.Ed.2d to a the. provision of California Constitution. 619] is well ‘is, established that the California Constitution has always

“[I]t been, a document independent [citation], force’ and that the rights em- bodied protected state Constitution are by invariably not identical to the contained in the rights federal Constitution. California [Citation.] cases have long recognized of the independence California Constitution [citation], 24, and article of the California Constitution expressly confirms that the rights this Constitution are ‘guaranteed by not dependent ’ on those guaranteed the United States Constitution. Past cases make clear even when the terms California Constitution are textually identical to Constitution, those the federal of the proper interpretation state constitutional provision identical to federal invariably courts’ interpretation corresponding contained in the federal Con- (American stitution. Pediatrics v. Academy Lungren (1997) [Citations.]” 307, 210, Cal.4th 325-326 797]; 940 P.2d see Cal.Rptr.2d v. People [66 737, Frazer 21 Cal.4th (1999) Cal.Rptr.2d 982 P.2d [88 180] Brown, (dis. State Bar opn. J.); Warden v. (1999) Cal.4th 660 [88 Cal.Rptr.2d Brown, 982 P.2d (dis. opn. J.).) 154] When a of our state part initiative, Constitution has been one adopted by of our core is that the interpretive courts must its principles measure scope to the intentions of the according voters. (Gates Superior Court (1995) therein; Cal.App.4th 489], see, and cases Cal.Rptr.2d cited e.g., White v. Davis 13 Cal.3d P.2d Cal.Rptr. 222] statements indicated state constitutional privacy intended [ballot to be self-executing relief]; cf. Holtz supported injunctive v. Superior Cal.3d 475 P.2d Cal.Rptr. [language monetary allows for inverse ‘ “This is because the condemnation].) Constitution “owes its whole force authority its ratification ....’” people (Gates, [Citations.]” p. 518.) concludes there is no

The0majority correctly evidence the voters intended create right monetary damages clause adopting set Nevertheless, of our Constitution. 7, subdivision (a) in article forth finds no basis because it that determination its with it declines to end inquiry foreclosed.” be was intended that a “for concluding non sequitur, The fails ante, majority explain at p. 324.) (Maj. opn., interpretation of constitutional however, any identify principle and to into to monetary damages or bar of an implied translates the absence express for such determine whether provide court to authorization an nature, a orders its constitution very its initiative. By on own serves as bulwark its citizens and government relationships branch the judicial The fact that rights. on their encroachment against as its license to give augment provisions does not Constitution interprets now, has jealously this court sees fit. Until shifting majority judges any intent, with respect legislative particularly its role in effectuating guarded 492, Eu Cal.3d (1991) v. Legislature the initiative process. (See, e.g., 52 Cal.3d (1990) Raven v. 1309]; Deukmejian 816 P.2d Cal.Rptr. [286 Joint Union 1077]; Valley 801 P.2d Amador Cal.Rptr. [276 Cal.3d Bd. Equalization Sch. Dist. v. State High re W. 37 Cal.3d 1281]; see also In Lance 583 P.2d Cal.Rptr. case, however, In this 694 P.2d 744].) 889-890 Cal.Rptr. that vigilance. abandons majority not on our

Moreover, based framework majority applies analytical Court deci of United Supreme own but a derivation States jurisprudence law of our state—a Constitution is supreme sions. “The California that establishes governmental pow document of force independent seminal As the Su individual and liberties. safeguards rights ers and [Citations.] of state California, meaning we final Court of are the arbiters preme in this authority responsibility constitutional Our provisions. [Citation.] cannot government; structure of California basic regard part body. other or any to the United States delegated Supreme person Constitution, we of the California When we construe provisions [Citation.] histories, in do language, purposes, so of their necessarily light unique estab constitutional interpretation with general principles accordance the state constitu differently do act when lished in our case law. Nor as a federal constitu contains the same language tional issue case, a decision the United In such a we are not bound tional provision. and decide We must consider any Court or other court. States Supreme Dist. (1991) School Morongo matter independently.” (Sands Unified Lucas, P.2d (conc. opn. Cal.Rptr. Cal.3d C. J.).) “assump- independence—and apparent majority’s lapse analytical law” (Linde, Court doctrine is generic

tion that Supreme Are State Constitutions Common Law? Ariz. L.Rev. 227)— our obligation as final arbiter betrays of state constitutional law two First, interrelated ways. majority’s approach compounds perpetuates that state constitutions are misperception of common law and that part meaningful analysis can be “borrowed wholesale from federal constitutional discourse, as though federal constitutional language law were some sort of franca of lingua constitutional argument (Gardner, generally.” Failed Discourse State Constitutionalism 90 Mich. L.Rev. however, Unlike the law, common interpretation bound text as well as by principles construction and is decidedly not subject—whenever of the majority agrees—to court judicial extension and innovation in the interest of or national public policy consensus or similar Linde, at justification. (See in this context pp. 225-229.) Although pull “[t]he toward a common judicial review, law of toward a vortex of clichés [lifted from (id. United States decisions], Supreme strong” p. 229), court must if resist it is to remain faithful to its role as final arbiter of the state meaning our Constitution respect demarcations between respective branches government—a concern of constitutional equally dimension. (See, e.g., Schweiker 487 U.S. Chilicky (1988) S.Ct. 101 L.Ed.2d 370].)

Second, the creates a majority’s approach lacuna in our constitutional jurisprudence, without adopting consideration meaningful the United States Court’s Supreme unrelated federal interpolation constitutional provi- sion in lieu rigorous substantive analysis unique language, purpose of our own due history process guarantee. Defaulting high disserves the fundamentally force and effect our independent Constitu- tion. Rather than law, enrich texture of our this reliance on federal future precedent shortchanges generations.

Baxter, J., concurred.

Case Details

Case Name: Katzberg v. Regents of University of California

Court Name: California Supreme Court

Date Published: Nov 27, 2002

Citation: 127 Cal. Rptr. 2d 482

Docket Number: S097445

Court Abbreviation: Cal.