*1 Third No. 21825. Dist. Oct. [Civ. 1984.] SCHULTZ, and Respondent,

DAVID Plaintiff al., et OF CALIFORNIA THE REGENTS OF THE UNIVERSITY Defendants Appellants.

Counsel Jr., Reidhaar, M. Opton, Helwick and Edward Donald L. Christine Defendants and Appellants. HI for

Kronick, Moskovitz, Hughes and Thomas C. Tiedemann & Girard Plaintiff and Respondent.

Opinion *4 the trial court hold, other that

SIMS, J. among things, this case we In of the Regents defendant requiring improperly granted summary judgment a (hereafter hearing to University) provide plaintiff of California University in the of his We conclude job. connection with reclassification interest him of a property failed to show the reclassification job deprived of of due law. process sufficient to invoke federal constitutional guarantees Personnel In so in State Bd. Ng we our holding clarify opinion prior Peo (1977) 68 We also conclude Cal.Rptr. 387]. 622], (1979) 25 599 P.2d ple v. Cal.Rptr. Ramirez under rights which forth a test for sets invocation to (where the Constitution interest is statutory subject deprivation), state case, no interest. statutory should not be extended to this which implicates Rather, (1975) 15 Cal.3d 194 we conclude State Personnel Skelly v. Bd. the circumstances 539 P.2d continues define 774] employees will be afforded of due procedural protections to deprivation. entities who can no public subject show Background Factual and Procedural Plaintiff, is a full-time cytotechnologist, permanent been employed Center. He had of California Davis Medical III. laboratory since in the technician hospital began the center In the medical June 1980 personnel department technician series. study jobs laboratory classification in the hospital responsibilities The of such a the duties and study is to purpose compare jobs. classified of other classified with duties and jobs responsibilities assure help the University Such occur throughout studies periodically and all responsibilities consistent equitable among job relationships classified bemay a study, jobs As a of such classifications. consequence (here the “series” existing outside or downward upward reassigned series). technician of 53 hospital laboratory job Plaintiff’s was one jobs studied. the personnel recommended reclassification of department ap-

proximately one-third laboratory technician positions hospital series, that held including was by plaintiff. job Plaintiff’s to be reclassified from hospital laboratory III to technician technician hospital laboratory II. (b)

Section 290.2 subdivision Staff Personnel University’s Policy that the specifically provides set forth shall be policy applicable classification. Staff Personnel complaints regarding position Policy 290 generally about a classification shall provides complaints be thereafter, submitted in to the writing re- personnel manager upon to the quest, Chancellor be “whose decision shall final.” No hearing is provided.1

Plaintiff full requested a of his job. reclassification denied, request and petitioner Chancellor, to the ultimately appealed who denied his appeal. *5 reclassification,

After the continued to the same he plaintiff perform job done; had his previously remained the same. The effect of the salary only reclassification was to “redline” at its freeze it then- plaintiff’s salary—to current level until the salaries of others in the classification rise to new equal his. Plaintiff has conceded that the reclassification was not disciplinary nature.

Plaintiff filed a for a petition writ mandate in Sacramento Su- County Court perior three (1) causes of action and reinstatement alleging seeking as III, technician hospital laboratory lab- hospital reclassification technician oratory IV. Plaintiff and cross-motions for partial defendant filed action, summary judgment on alleged first cause of denial plaintiff’s of procedural due of law.

The trial court summary motion for granted plaintiff’s judgment partial action, his first cause of that has a interest in plaintiff finding his job, that such interest his embraces classification as laboratory hospital III, technician and that was entitled to full due plaintiff process hearing on the reclassification his position. 1Staff Policy Personnel is to compared Policy governing be with Staff Personnel Grievances,” demotion, dismissal, “Employee including suspension. policy The latter

provides for full hearings employee grievances. administrative not deprive did reclassification defendant contends On appeal,2 (2) the by process; of an protected only We reach process. demonstrates no lack record reverse. of these contentions and first

Discussion I entitled constitutionally he contention was Before addressing plaintiff’s rule, statute, or written University whether any a full we examine hearing, he seeks. entitled to the hearing specified plaintiff policy Griev- “Employee Staff Personnel Policy governing for an ances,” for a full due process expressly provides was not reclas- concedes his job Although plaintiff “demotion.” subject de measure, was a he contends his reclassification job sified as a punitive facto “demotion.”

However, University’s was not demoted. we conclude plaintiff differe define demotions and reclassifications personnel policies expressly is reclassifications Moreover, between demotions and the difference ntly.3 demoted, remain classifications job one of substance. When an employee of defined fixed matrix travels downward on the static and the employee that the em inference ready This movement creates jobs. downward And an inference been less than satisfactory. has ployee’s performance burden the employee’s be a unsatisfactory stigma may performance to work the future. ability contrast, undertaken reclassification way

By *6 individual employees. of does not focus on the performance The different Rather, jobs. duties of the prescribed process compares a reasonable does not permit reclassification University’s process job unsatisfactory in an job his or her inference that an has performed employee manner. was not a “demotion.” job

We conclude the reclassification plaintiff’s under reclassification Therefore, to review of the was not entitled plaintiff action, plaintiff dismissed entry judgment on the first cause of summary 2After prejudice. remaining causes of action without “downward re and a distinguishes between a “demotion” Policy 3Staff Personnel 110 employee from change of an each as follows: “Demotion. The classification” defines salary range maximum having a lower position position which is in a class one another employ of an “Reclassification, Downward. change of the title is termed a demotion.” is salary range maximum having lower different class a ee’s current to a title of a ” termed a downward reclassification. 774 290,

Staff Personnel 280. Staff Personnel does not Policy Policy which provide from adversary hearing, grievance. Apart applied plaintiff’s 280, Staff Personnel neither has statute or rule Policy any grant- cited party ing plaintiff his nor aware of grievance, are we any.

n We next address contention the due clause of the Fifth plaintiff’s Amendment to the federal Constitution mandated that he be given hearing.

A It is clear that a has dif public a number employee qualitatively ferent interests that him or to the protectable entitle her protection pro cedural due law process of under the Fifth and Fourteenth Amendments to the federal Constitution before a may violate interest. public employer (See Tribe, (1978) 10-9, generally, American Constitutional Law § 514-522.) “Under the due Constitution guarantees of federal ... public employee entitled to termination from process upon if (Arnett either are employment ‘liberty’ interests ‘property’ implicated. (1974) v. Kennedy 15, 1633]; 416 U.S. 134 Perry L.Ed.2d 94 v. [40 S.Ct. (1972) 570, 2694]; Sindermann 408 U.S. 92 L.Ed.2d S.Ct. Board 548, v. Roth Regents (1972) 2701]; 408 U.S. 564 92 S.Ct. L.Ed.2d State Skelly v. Personnel Bd. Cal.3d 194 Cal.Rptr. 774].) addition, In P.2d and without to the existence of a regard property interest, or liberty to termi safeguards and substantive attach nation for reasons of other constitutional deprive rights, such as freedom of Doyle Board speech (e.g., Healthy City Mt. Ed. 568]).” U.S. 274 v. Hous (Figueroa S.Ct. ing Authority (1982) 131 case, the instant nor argument neither facts plaintiff presented legal

the trial court that the reclassification of his had affected suggesting job any interest”4 or “liberty had been undertaken a re reclassification prisal plaintiff’s exercise of Rath any protected constitutionally rights. er, the involving the case to the trial court as one parties presented limited of whether had a interest in clas question his *7 sification under sufficient to invoke due procedural requirements process Bd., doctrine We Skelly of v. State 15 Cal.3d limit Personnel 194. court; our discussion of federal due to the issue tendered to the trial process i.e., to invoke whether showed he a sufficient interest had property federal due process guarantees. 1049, Shepherd (1982) generally

4See Jones 1060 708]. v. 136 [186

775 our by summarized due status of federal procedural Bd., Re “In Board Court in v. Personnel Skelly supra: State Supreme of 2701], 548, 92 S.Ct. (1972) Roth 408 U.S. 564 L.Ed.2d v. gents [33 interests pro United States Court ‘made clear that the property Supreme of actual ownership due extend well by beyond tected (Id., estate, chattels, at 571-572 pp. real or money. [33 [Fn. omitted.]’ Rather, at Fourteenth Amendment’s 557].) L.Ed.2d p. ‘[t]he a of of interests that person is a safeguard security protection property inter already interests—property has benefits. These acquired specific 560].) at (Id., take forms.’ ests—may p. at L.Ed.2d many p. a the Roth noted: ‘To have prop- its court “Expanding upon explanation, benefit, more an abstract interest a a have than erty person clearly must it. or desire than expectation need for it. He must have more a unilateral must, to it. instead, He a claim of It is a legitimate purpose have entitlement of the ancient to claims protect institution those property upon lives, be under- rely arbitrarily their reliance that must not people daily It is a to right mined. constitutional to a purpose provide a vindicate those claims. opportunity person “ interests, Rath- course, not the Constitution. by are created ‘Property er, are dimensions or they by created and their are defined rules existing such law— understandings that stem from an source as state independent rules or and that claims secure certain benefits understandings support 561].) of entitlement (Id., to those at L.Ed.2d at benefits.’ “Thus, a gov when a has enforceable receive legally right a person exist, ernment benefit certain constitutes a facts this provided 254, (1970) interest due U.S. protected (Goldberg Kelly v. process. 287, 1011]; 295-296, 261-262 see Geneva Towers L.Ed.2d 90 S.Ct. 1974) (9th Tenants 504 F.2d Org. v. Federated Inv. Cir. Mortgage Bd., (Hufstedler, su (Skelly J. v. State Personnel dissenting).)” 206-207; Co. 15 Cal.3d v. Zimmerman Brush pra, Logan see 265, 274, 455 U.S. 102 S.Ct. L.Ed.2d 408 U.S. Perry page Sindermann that, “A Court explained 570 at 92 S.Ct. page Supreme 2694] in benefit is interest for process purposes person’s ‘property’ his if are such understandings support there rules mutually explicit at hearing.” claim of to the and that he invoke entitlement benefit to the and cir- With this we turn facts process, overview federal the trial court. presented cumstances plaintiff’s employment *8 B We first statute, rule, examine whether or written any policy gave plaintiff any “legally enforceable that his would not be right” job expect reclassified in the unbridled discretion of the We are University. aware no statute on the bearing Various of the Staff Person question. University’s nel Policies describe reclassifications. Since these position policies express for ly provide job reclassifications without limitation of the any University’s discretion, they show had no his reasonable would expectation not be reclassified as it was.

Plaintiff can contends he trace a Staff Policy interest to Personnel 300.1, which provides: “Staff basis are classified the of duties positions similar responsibilities. Positions with are duties responsibilities grouped title, in the together same class. Class state the con- specifications work, cept, examples and minimum of each class.” qualifications Plaintiff argues, “When the acts to an University reclassify employee classification, another the he will continue in employee’s that expectation the class absent cause is certainly significantly affected.”

However, Staff Personnel Policy 300.1 does not create an expectation an will be employee continued in a classification absent “cause.” policy is it the simply descriptive: defines are merely way organized positions within the It be University. cannot construed as out reasonably holding any representation, express any implied, given employee expect occupy any for of time or that will position any continue length employee in any class absent “cause.” if By plaintiff’s logic, University personnel policies described the simply manner of within employment organization would University, by position, that create description legally enforceable expectation each described that he or she could be terminated only cause. That result would overturn effectively established law termination in circumstances permitting without cause of appropriate probationary employees who serve at the pleasure appointing power. (See, Bogacki Board e.g., Supervisors (1971) 782-783 537]; P.2d Cal.Rptr. Johnston v. Cal. State Uni Trustees of & versity Colleges Cal.App.3d Cal.Rptr. 175]; King v. Regents University (1982) 138 Cal.App.3d of California Cal.Rptr. v. Regents (1978) 78 University Mendoza California There, court readily held distinguishable. 117] permanent employee of was entitled to before being However, Mendoza, dismissed from grounded court employment. *9 a per- in a rule explicitly providing interest property employee’s Here, (P. 172.) plain- be dismissed for cause. only manent could employee his from reclassifica- to cite rule tiff is unable an analogous protecting statute, rule, conclude or furnished tion. We no written policy reclassification of the position. “entitlement" to remain in his without job. C trial court In claim to a hearing, due upholding plaintiff’s process Bd., supra, this in Personnel Ng relied court’s v. State upon opinion Ng 600. We conclude Cal.App.3d distinguishable. in

In a civil service a Ng permanent position comparable state employee, of school elementary to a school was demoted to the principal, The stated reasons for teacher without the hearing. opportunity duty, demotion were of inexcusable incompetence, inefficiency, neglect of This The a denial due process. failure behavior. good plaintiff alleged that, enun due doctrine court wrote “In our view in demotions In a Skelly practical ciated extends to as well as dismissals. sense a interest in continued permanent employment employee’s property his as current His salary. property embraces current classification well as his interest is demotion as The latter damaged deprives well as dismissal. 203) interest, (15 him Skelly of the entire the former of In Cal.3d part. except the court to an pointed evidentiary hearing the employee’s right The days right as to minor of 10 or less. discipline consisting suspension extends dismissals and demotions. evidentiary to an equally Code, 207-208) (Gov. 19578.) (15 Skelly at pp. places The opinion § and other the ambit of the right dismissal measures within disciplinary due process continued which forms interest employment evoking property Both Skelly principle protection. verbally, conceptually embraces demotions as well as (Ng, dismissals.” 606; italics original.) be read state Ng Skelly. must like light Skelly, permanent Ng, interest is civil service employee. origin cognizable property their “The Act endows state Skelly employees described as follows: California Such employees attain status with a ... interest. permanent who . unless measures not be to other subjected disciplinary dismissed defined in exist ‘cause’ for such facts constituting discipline [Government cause, the of sufficient sections 19572 and 19573. the absence Code] free has a to continued employee employment permanent con- ([Gov. Code], statutory right This these measures. punitive § within benefit ‘a claim of entitlement’ to a legitimate government stitutes Therefore, with the state must meaning comply Roth. process requirements before it its may deprive permanent this Bd., *10 by punitive action.” v. State Personnel (Skelly supra, 15 Cal.3d at 207-208.) pp. of the provisions Government Code that protected Skelly Ng,

state civil service from employees, dismissal or demotion absent cause are unavailable to as an plaintiff University. Employees University California are from state civil service exempt pursuant VII, 4, article section (h) subdivision of the California Constitution. Nor can plaintiff point any statute or rule that analogous reclassi- prohibited fication of his job absent Ng “cause.”5 is therefore inapposite.

D Plaintiff also contends he was entitled to a due because process hearing he has suffered a loss protectable monetary as a reclas- consequence However, sification. loss was that of plaintiff’s only increases due “step” to his job being “redlined.” We thus examine whether has shown plaintiff a “legitimate claim of or entitlement” enforceable to the “legally right” lost, increase he or “step” has whether he has shown a “unilateral only expectation,” “abstract need or desire.” v. State Personnel (Skelly Board, 15 supra, Cal.3d at We conclude p. the latter is the case.

A for party moving summary judgment must the motion with facts support set affidavits, declarations, forth in admissions, answers to interrogatories or depositions or with facts which the court take notice. judicial (Code Proc., 437c, Civ. (a).) subd. Summary judgment plaintiff § if proper only the factual showing supporting motion is sufficient to entitle plaintiff (1950) v. judgment. (Coyne Krempels 36 Cal.2d 262 244], P.2d followed in Cornelison v. Kornbluth 15 Cal.3d 981].) Here, 542 P.2d factual show plaintiff’s was ing insufficient to manifestly support summary judgment. Plaintiff has, fact, alleges his declaration that he only lost “a salary increase I which would have received on 15th if not for reclassifi- July my cation to the Laboratory Technician II.” Plaintiff did Hospital not state the basis for his belief that the increase would been have forthcom- ing; nowhere does he that his belief was more than a “uni- allege anything lateral he expectation” had a enforceable to the “legally right” increase contract, premised some rule or upon existing understanding Sindermann, stems from an independent (Perry source. v. 408 U.S. supra, 5Moreover, seen, plaintiff’s job disciplinary as we have not a the reclassification demotion. Bd., 580]; supra, State Personnel v. Skelly at L.Ed.2d at p. p. (1978) 206-207; Ind.App. Heyne Mabrey Cal.3d at see N.E.2d “scheduled.” increase was allegedly

On asserts the step appeal, plaintiff However, showing the trial court evidence to failed to present “mutually were any or that there the increase was defendant promised Sindermann, 408 U.S. (see Perry v. understandings” explicit him 580]) respecting between the Corps. Conservation increase. Bush v. step (Compare *11 California E find cases which we inapposite. Plaintiff relies several out-of-state upon 1981) 670 (D.C.Cir. He cites Atwell Merit Protection Bd. Systems first v. his contention. 272, 286-287, neither nor refutes F.2d supports to re- Atwell that reductions in grade pursuant the court assumed merely of a the loss in federal civil service constituted system classifications used (P. 286.) felt the procedures valuable interest. Because it property of denial the claim rejected there were court constitutionally adequate, (Ibid.) of due process. (10th Cir. College State

Plaintiff next cites Brenna v. Southern Colorado where “there no 1978) appeal 589 F.2d a case question [was] in the of removing appellant and hearings provided Fourteenth by satisfied the demands of due mandated one of substantive (P. pro- Amendment.” there was question or cess, i.e., arbitrary was whether the dismissal a tenured professor capricious. involved a state (1979) 123 Ariz. 419 P.2d Wiley

Butterworth v. 32] sys- whose was reclassified from electronic job data-processing I. supervisor II to electronic analyst data-processing operations tems defined broadly (P. 32.) Regulations The Arizona Rules Compilation thus, con- the court the situation there presented; “demotions” cover The Arizona cluded, called for. to demotions was process appropriate have for the agency “that it have been might possible court suspected em- manner have included that it would not defined ‘demotion’ in such a of general position were altered as a result whose classifications ployees however, has defined this, but instead not done reallocation. The has agency taken with include the action it must broadly necessarily ‘demotion’ so Here, “demotion” (P. 36) we have explained, to the respect appellant.” “reclassification, downward” are defined and do not exclusively mean (See ante.) same thing. fn. Similarly, State ex rel. Indiana v. Boehning State Emp. 422],

Ind.App. N.E.2d were demoted from “the employees salar- ied position II Assistant ... to the of Laborer .” Engineer position . . . (P. 424.) (Italics added.) The court held that due process required hearing to determine if (P. 429.) there sufficient cause for demotion.

Finally, Dulmage City Seattle Wn.App. P.2d the court noted in dictum that a should be where required 875] contested factual arise as to issues whether the functions and duties of a created newly classified are to those of comparable previous po- (P. 876.) sition. That is not issue before The instant case is not one us. which reclassification been used has as a demotion reduc- subterfuge ing employee’s pay job responsibilities.

Here, statute, no has shown him rule or policy giving *12 interest in his Nor job classification. has he evidence of a contract presented or mutual with “understanding” his from re- University protecting classification. On the record before no us we conclude protectable property interest exists as a matter law. at (Heyne Mabrey, supra, v. N.E.2d 467; see Regents California, v. p. King supra, 815-816.) Therefore, at he is entitled to not due procedural (Board of law under the federal process Constitution. v. Roth Regents 564, 548, 561, U.S. 92 S.Ct. III We next examine claim to due under the plaintiff’s process California Constitution.6 Ramirez, 260,

In our People supra, Court Supreme made it clear that rules invocation of due governing process under rights the state Constitution are not the same as always rules adopted the United Court for States invocation of federal due Supreme process (See Note, A rights. People v. New Interest generally Liberty Ramirez: Ramirez, Due Expands 1073.) Process Protections 69 Cal.L.Rev. In had been status from the California appellant upon outpatient placed Code, (C.R.C.) Rehabilitation and Center to Welfare Institutions pursuant I, 7, (a), 6Article provides pertinent section subdivision of the California Constitution in life, “A part: person may deprived liberty, process without due not be or law . . . .” later, (25 section while still apparently 3151. Cal.3d at Two p. years C.R.C., The Director from he to disturbing peace. parole pled guilty or treat of Corrections found “not a fit for confinement subject appellant ment” at to any participate C.R.C. without giving appellant opportunity due (Ibid.) certain any manner. allowing appellant decision I, (a) short of a full under article section subdivision rights I, Constitution, article section 15 of our Court said: the California Supreme “[Wjhen a benefit, of a person deprived statutorily conferred must start not decide whether the statute analysis with a judicial attempt has created an ‘entitlement’ that be defined as ‘liberty’ ‘property,’ can but with an assessment of are constitutionally what procedural protections (Ra interests at stake.” required light governmental private mirez, added.) that the due italics “We therefore hold in process safeguards statutory of an individual’s required protection terests must be in the freedom from analyzed context of the principle arbitrary adjudicative liberty. is a substantive element one’s (Id., added.) italics [Citation.]”

Because has shown no statutory subject deprivation, However, does not control expressly plaintiff’s process rights. Ramirez is like a in a still are still pebble recently dropped pond: ripples Ramirez it, from and un- emanating their ultimate effect is unknown. One yet key situations, settled is whether be question will analysis applied Ramirez’ here, such as that involved where no is at Since nei- issue.7 Ramirez, ther to this party had cited we asked the to brief the appeal parties issue. *13 “arbitrary adjudicative mainly applied to be free of procedures” has been 7Ramirez’s criminal, juvenile, in statutory right and mental health cases where an individual asserted a (See (1983) possible liberty and faced proceeding. e.g., loss in the In re Reed 33 Cal.3d 914, 922, 658, 424, 216]; (1980) fn. 8 Cal.Rptr. 663 P.2d Atta Scott 27 Cal.3d [191 Van v. 149, 210]; 587, (1980) Cal.Rptr. 434 613 In 28 Cal.3d P.2d re Winnetka V. 594 [166 [169 713, 163]; 670, (1984) Cal.Rptr. Superior Cal.App.3d 620 P.2d Garcia 156 675- v. Court 290]; 1125, (1983) Cal.Rptr. 676 Cal.App.3d re Head 147 1131-1132 [203 [195 593]; 456, 35]; (1982) Cal.Rptr. People Cal.Rptr. Cal.App.3d v. 138 462 [188 Wolozon (1982) 774, 741]; Superior People Gibson Cal.App.3d Cal.Rptr. v. Court 135 780 v. [185 (1982) 590, 132]; Cal.App.3d

Rocha 135 Cramer v. Gillermina R. Cal.Rptr. 595 [186 (1981) 380, 69]; (1981) Cal.App.3d Cal.Rptr. Cal.App.3d 125 In re Carr 116 389 [178 962, 417]; 774, (1980) Cal.Rptr. People Cal.App.3d 968 780 v. Lee 110 [172 [168 231].) However, (1983) Cal.Rptr. Cal.App.3d Comp. Appeals in Laird v. 147 Workers’ Bd. 44], pages Cal.Rptr. 198 at the court relied on to conclude a disabled [195 Ramirez (Lab. process worker was denied due benefits when his vocational rehabilitation Code, 3207) hearing. were Personnel Bd. terminated without a And in Willson v. State § (1980) 312, 832], 113 page Cal.Rptr. 317 we relied Ramirez [169 governmental employment from private balance interests involved in the termination (See City permanent civil service John A. San Bernardino School worker. also v. Unified Mosk, 301, 472, (dis. (1982) opn. Dist. 33 314 Cal.Rptr. Cal.3d 654 P.2d 242] J.).) 782

So far the California Court has not to situations Supreme applied Ramirez other than those where an of a individual faces the possible deprivation V., 587; (See created interest. re 28 Cal.3d statutorily supra, In Winnetka Scott, Nonetheless, Van Atta 424.) v. 27 supra, Cal.3d subsequent Supreme cases, dicta, Court in have read with the broadly, dispensing Ramirez that a requirement interest be shown to invoke due process protec (1981) tion. For in v. Motor Vehicles example, Department Hernandez 30 566, 917], Cal.3d 70 634 P.2d where California’s “im Cal.Rptr. (Veh. Code, consent law” plied 13353) was constitutional against upheld § the court challenge, remarked: the United States Court Supreme “[W]hile has continued to hold that the of federal due process application the existence of a principles wholly dependent upon ‘protected property interest’ or liberty (see, ‘entitlement’ Connecticut Board Pardons e.g., (1981) 158, 2460]), v. Dumschat U.S. 458 S.Ct. 260, 316, People v. 25 Cal.3d 599 P.2d Cal.Rptr. Ramirez 622], our court that under the California Constitution ‘freedom recognized from of one’s arbitrary adjudicative is a substantive element so liberty’ that ‘when an individual is subjected governmental deprivatory action, he has a due both in fair and always liberty interest process unpre judiced and in treated with decision-making being respect dignity.’” (Hernandez Vehicles, 81, v. Motor 30 Cal.3d at Department supra, fn. Scott, in Van Atta v. where the court

Similarly, supra, invalidated aspects San Francisco’s release and detention pretrial system, is described as forth an test for all forms of setting independent Ramirez under the state Constitution.8 these Despite broad characterizations of in dicta Hernandez Ramirez Atta, Bd., and Van we are v. State Personnel Skelly persuaded 8The People court Van Atta said: “In 25 Cal.3d Ramirez 622], 599 P.2d this court held that the extent to which weighing relief is available under depends the California Constitution on a careful *14 private governmental constitutionally and procedures interests involved. The are re will, quired unduly burdening government, accuracy are those that the without the maximize resulting of the respect dignity subjected decision and the of the individual to the decision- (Id., making process. 268-269.) pp. specifically, at More ‘identification of the dictates of process (1) due generally requires private the interest that will be affected consideration action, (2) by deprivation through the official the the risk of an erroneous of such interest used, value, probable any, procedural and the safe if of additional substitute (3) nature, guards, dignitary informing grounds the interest individuals of the and con sequences enabling present story of the action their before a and them to side official, interest, responsible governmental including the function governmental and the involved and the fiscal and additional or substitute administrative burdens that the Scott, 434, (Id., 269.)” (Van requirement supra, p. would p. entail.’ at Atta v. 27 Cal.3d at omitted.) fns.

783 a employee If public should not be overruled.9 has not been and the em- we believe subject deprivation, interest cannot show a invoke process in order to interest must still identify property ployee necessary. Some background under the state Constitution. rights alternative test as an due Our Court devised Ramirez Supreme not) (or were protected were interests liberty to the federal test which by S.Ct. L.Ed.2d (1976) 427 U.S. under Meachum v. Fano [49 466, 96 L.Ed.2d (1976) 427 U.S. Montanye Haymes [49 2532] test would permit that the federal Our court perceived S.Ct. 2543]. statute, due process of the federal states, interests out liberty to define by liberty to a would apply whether procedural protections clause by specifying Ramirez, 25 Cal.3d at so, (See and, if be. what would they “The New 265-267; Property Cracks in see Van generally Alstyne, pp. (1977) 62 Cornell State Due Process in the Administrative Adjudicative L.Rev. Court States Supreme indications the United

Ten there were years ago, treated liberty court later interests in the same way would treat property 416 U.S. Kennedy In Arnett v. Montanye. interests in Meachum and service federal civil 1633], a L.Ed.2d 94 S.Ct. permanent [40 that his superiors after made “reckless” charges was fired employee having 23-24].) The (416 at L.Ed.2d at pp. had taken a bribe. U.S. p. (5 7501), Follette Act U.S.C. provided permanent Lloyd-La § “ will cause as promote could be “removed” from service for such ‘only ” 25].) Al- at (Id., L.Ed.2d of the service.’ at efficiency of the charges to notice Kennedy right the act though gave employee adversary hearing. a full the act did not writing, require respond sued, 24-26].) claiming (Id., Kennedy 137-142 L.Ed.2d pp. 137-140 (416 full U.S. at pp. entitled him to a hearing. 24-25].) L.Ed.2d at pp. Rehnquist, claim Justice hearing, to a due process

Rejecting Kennedy’s wrote, “Here concurring, and Justice Stewart with Chief Justice Burger other not be removed that he did have a statutory expectancy [Kennedy] But the service.’ efficiency as will promote [the] than for ‘such cause had him that right, of the statute which granted section very expressly regulation, virtue administrative only by existed previously determined, and to be which ‘cause’ was also for the procedure provided are man- insists which appellee omitted the guarantees expressly at p. (416 the Constitution.” U.S. pp. dated by (Skelly v. *15 grounds. 9Skelly clearly both and federal constitutional upon was decided state Bd., 205, 216-217.) pp. 15 Cal.3d at State Personnel In a separate Powell, Justice concurring opinion, Justice Black- joined by mun, wrote,10 “The reasons that the nature of plurality opinion evidently appellee’s interest in continued federal is defined necessarily employment and limited by statutory for and that the constitu- procedures discharge tional guarantee of procedural due accords to no appellee protections against arbitrary erroneous other than those ex- discharge in pressly provided the statute. The would thus conclude that the plurality statute federal governing determines not the nature of employment only interest, appellee’s but also the extent of property the procedural protections to which he may lay claim. It seems to me that this approach incompatible with the Indeed, laid down in principles Roth and Sindermann. it would lead directly the conclusion that whatever the nature of an individual’s interest, created statutorily property that interest could be deprivation accomplished without notice or a at time. This view miscon- any ceives the origin right That is con- right process. ferred not by but legislative grace, by constitutional While the guarantee. legislature may elect not to confer a interest in federal property employ- ment, it not authorize constitutionally of such an inter- deprivation est, conferred, once without As our cas- appropriate procedural safeguards. es have consistently recognized, adequacy procedures deprivation created statutorily interest must be property analyzed constitutional (416 terms. U.S. at 166-167 L.Ed.2d at pp. [Citations.]” [40 40-41]; pp. omitted.) fn.

The plurality in Arnett opinion Justice of statu gave Rehnquist’s theory interests, defined torily vis-a-vis one process, its mo shining Arnett, ment on the of American law. A in Goss stage year Lopez after 729], 419 U.S. 565 L.Ed.2d 95 S.Ct. the court11concluded that since Ohio school high students had a claim of entitlement legitimate statutes, to a education under Ohio public Ohio could not withdraw that grounds misconduct absent fair fundamentally determine (419 whether misconduct had occurred. U.S. at Arnett, 734].) L.Ed.2d at p. Goss cited the reference was not to Although Justice Rehnquist’s plurality but rather to the of Justices opinion opinions Powell, Marshall, White and (Ibid.) who had dissented.

More in Vitek recently v. Jones 445 U.S. 480 L.Ed.2d 1254], 100 S.Ct. the court indication the no- gave abandoning clear it was tion state statutes or could define due out of regulations process protections (416 10Justice White part part. p. concurred in dissented U.S. 43].) Marshall, p. (416 Douglas Justices and Brennan dissented. U.S. at L.Ed.2d at majority opinion 11The opinion Justice Justice Powell dissented in an White. which the Chief Justice Rehnquist joined. and Justices Blackmun and *16 Vitek, a Nebraska a interest at stake. In existence even where was liberty to a state he was transferred by challenged state prisoner procedures A provided defect. state statute treatment of mental disease or hospital an inmate found for transfer when a or physician psychologist designated 483, fn. (445 mental or U.S. at p. [63 suffered from a disease defect. 559].) liberty L.Ed.2d claimed the prisoner’s at The state p. find- once a made the requisite

satisfied or physician psychologist 563].) 445 U.S. at L.Ed.2d at ings. pp. p. 489-490] [63 stated, the “A Justices for the Justice White Writing majority majority, (445 at Kennedy . .” U.S. an identical in Arnett v. . . rejected once the state 563].) Vitek court held fn. 6 L.Ed.2d at The p. p. [63 would not be adverse action the or granted prisoner expectation (i.e., him behavior against specified taken the occurrence except upon min defect), of mental was entitled to presence disease the prisoner for the imum circum requirements process appropriate (445 563].) at “These minimum stances. U.S. L.Ed.2d at p. p. 490 [63 law, federal are not diminished being they by matter of requirements it may fact that the State deem may have its own specified (Id., action.” to adverse official adequate for determining preconditions 563].) at L.Ed.2d at p. p. [63 Co., 455 U.S. 422 v. Zimmerman Brush

Finally, Logan 265], court had a property right L.Ed.2d held a handicapped (455 discrimination law. U.S. at by a cause of action for Illinois granted action, 273].) In cause of L.Ed.2d at order to p. pursue p. Em had to before the Illinois Fair administrative remedies pursue turn, Commission, which, undertake Practices had to certain ployment 271].) (455 at p. acts within a specified time. U.S. p. time, failed its within the prescribed commission duties perform (Id., at for discrimination. effectively barring cause of action plaintiff’s 272].) 426-427 L.Ed.2d at pp. because entitlement

The Illinois Court reasoned that plaintiff’s Supreme statute, the statute could also prescribe to a cause of action arose from the L.Ed.2d at (Id., be followed. requisite procedures believe, Blackmun,12 misun “we “This wrote Justice analysis,” (Ibid.) guarantee.” derstands the nature the Constitution’s due process Vitek, requirements Blackmun federal procedural Justice held Following White, Brennan, and Stevens. 12Joined Chief Justices Marshall Justice and *17 were not diminished the fact a state had its own by procedures. specified “Indeed, (Ibid.) other any destroy conclusion would allow the State to will any (Ibid.) state-created virtually interest.” property

In light of Goss and Logan, we believe federal constitutional guarantees of procedural due for the process of interests are in no deprivation property of of present danger defined out being by regu- existence state statutes or Indeed, lations. Vitek suggests a of the federal has majority highest court come to recognize the Su- dangers Meachum and led our Montanye to event, Court fashion the preme test. In we believe there is any Ramirez no to present need the of test from the arena transport deprivation Ramirez of statutory interests to the arena of between nonstatutory disputes public employers and employees. addition, we test, believe that the at least as it has been char Ramirez Scott,

acterized in its form in broadest Van Atta v. supra, Cal.3d (see ante), fn. is not well suited for process the due determining rights of public It is read employees. possible to requiring application Ramirez of its test whenever so government adversely, acts as to affect an individual in order to the to be free from protect arbitrary the individual 267-268; (Ramirez, administrative supra, decisions. 25 Cal.3d at see pp. generally Due Process Values: Toward a More Saphire, Specifying Respon sive Approach to Procedural Protection 127 U.Pa.L.Rev. However, conferred benefit the limits requirement statutorily Ramirez’ universe of due potential process every claims: not citizen ad presumably versely by affected can governmental action assert due iden process rights; tification of a benefit to statutory is a subject deprivation prerequisite. Just as an identifiable to benefit serves limit the universe statutory ’ due potential claims under so too the process holding, requirement Ramirez anof identifiable employees interest limits the class who property public can assert due process rights connection with decisions made their by public affect them Public are employers adversely. employees adversely affected by countless decisions—from daily reassignment to responsibilities relocation a soft drink machine-made their by public flexible; employers. test is it that a court process requires Ramirez law private balance and in order determine governmental interests to what Ramirez, (See is due the citizen. private supra, If 268-270.) in the adjudication of relations between disputes involving in- public employees employers we abandon the prerequisite property terest, and the courts in each instance to fashion suitable require by the test of inter- applying balancing private governmental Ramirez ests, we to believe courts could well end manage up attempting of California. The no bureaucracy State courts are in undertake that responsibility.13 not to govern

We therefore conclude does apply Ramirez subject depri no benefit statutory of a who has rights public employee public unfairly vation but who that he or has been treated asserts she benefit Rather, subject depri absence of a employer.14 Skelly v. State vation, interest under must locate a Bd., Personnel 206-207. Cal.3d at pages

IV case, nor has neither pleaded In the instant subject shown interest statutory depr affidavit interest any property nor refute his affidavits pleading ivation.15 neither Consequently, plaintiff’s that for summary plain the on their motion University’s judgment showing with in connection the tiff was not entitled to of law procedural for summary judgment reclassification of his The motion University’s job. 33 Corp. Miller v. Bechtel (See (1983) should have been Cal.3d granted. 868, 619, 177].) 663 P.2d Cal.Rptr. [191

The summary that trial court to enter University we order the requests on its No an order motion judgment denying motion.16 lies from appeal reason, others, right, 13For theory this the fairness as a substantive and Ramirez, Simon, (See Liberty Property 184-187; and announced in not been its has without critics. 146, Supreme Perry (1983) in the Court: A and 71 Cal.L.Rev. Roth Defense of Williams, (1983) Liberty Legal 12 J. Property: The Problem Government Benefits 3.) Stud. here, plaintiff is assuming arguendo applied 14Even we would conclude the test Ramirez hearing not evidence showing entitled to a on the in the court. uncontradicted made trial 1980-1981, that, the summary judgment during year on the motion for fiscal these, 4,700 jobs. Of university possible California studied the of over reclassification 3,600 more occur much more than were manner. reclassifications reclassified some Job that if frequently disciplinary than indicated further actions. Uncontradicted evidence safeguards accompany accompanied by were reclassifications to be the same action, ability smoothly disciplinary University’s function result would hinder the bring system. efficiently equity employment and to into its Ramirez, (see supra, 25 People apply balancing When we test v. Ramirez 269), under the Policy appropriate procedures we conclude Staff Personnel 290 sets forth 275-276; (See pp. see not id. at required. circumstances and a full adversarial 18, 319, 42, 893].) (1976) S.Ct. also 424 349 96 Eldridge Mathews v. U.S. furnishing burden of summary judgment, moving party 15On for “The bears the a motion entirely without party claims of adverse are supporting documents that establish that the 362, (1982) (Lipson Court 31 Cal.3d any legal theory. Superior merit on [Citation.]” 822].) judgment there 629, moving summary A for Cal.Rptr. 374 644 P.2d defendant presented by the every liability plead negating theory fore the burden of alternative has 30, 271, (Bell 268, Cal.Rptr. (1981) ings. Vangas, Inc. 30 Cal.3d fn. 1 [179 v. Industrial Here, 266].) plaintiff’s alleges affidavit petition for writ of nor 637 P.2d neither the mandate Proc., 425.10, (a)) (see interest any upon subd. which either § Code Civ. facts or a be found. initially “partial” summary plaintiff’s 16Although judgment trial entered a court action, only surviving at present. cause of action is the one first cause of 788

for (Code Proc., 437c, Witkin, summary (l); see 4 judgment. Civ. subd. § Cal. (1983 Trial, 195, Procedure supp.) Proceedings Without § However, clear and in the light University’s judgment, interest of judicial we as a economy, treat appeal part petition writ of (See, mandate and issue a writ. Barnes v. Molino e.g., peremptory (1980) 103 786]; Branham v. State Farm Cal.App.3d Cal.Rptr. Mut. Auto 304]; Ins. Co. Cal.App.3d Cal.Rptr. Witkin, (1983 15-17; Cal. 51A, Procedure see also supp.) Appeal, § Johnston v. Alexis

Disposition The judgment is reversed. Let mandate writ of issue com- peremptory court to manding trial grant summary motion for appellant’s judgment. Carr, J., concurred.

BLEASE, P. J. Acting concur in as to judgment opinion parts I I, II and IV. I (as III) further agree part People Ramirez Cal.3d 260 P.2d not control expressly does 622] plaintiff’s So much resolves the tendered process rights. issues I parties. Beyond that see no join reason excursion a due through garden thick with the underbrush of grown opinion.