Opinion
6-15-1971
Albert E. MONROE, Petitioner and Appellant, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES, Respondent. Civ. 36409.
Gibson, Dunn & Crutcher, Samuel O. Pruitt, Jr., David A. Cathcart, Thomas E. Gallagher, Joan L. Freeman, Paul G. Bower, Bette B. Gallo and Merle W. Wood, II, Los Angeles, for petitioner-appellant. Thomas C. Lynch, Atty. Gen., Sanford N. Gruskin, Asst. Atty. Gen., and Henry G. Ullerich and Howard J. Schwab, Deputy Attys. Gen., for respondent.
Albert E. MONROE, Petitioner and Appellant,
v.
TRUSTEES OF the CALIFORNIA STATE COLLEGES, Respondent.
June 15, 1971.
Hearing Granted Sept. 8, 1971.
Gibson, Dunn & Crutcher, Samuel O. Pruitt, Jr., David A. Cathcart, Thomas E. Gallagher, Joan L. Freeman, Paul G. Bower, Bette B. Gallo and Merle W. Wood, II, Los Angeles, for petitioner-appellant.
Thomas C. Lynch, Atty. Gen., Sanford N. Gruskin, Asst. Atty. Gen., and Henry G. Ullerich and Howard J. Schwab, Deputy Attys. Gen., for respondent.
SCHWEITZER, Associate Justice.
By amended petition for writ of mandate, a state college professor, discharged in 1950 because of his refusal to sign the 'Levering Oath' 1, then section 3103 of the Government Code, seeks reinstatement, restoration of pension rights, and reimbursement for lost salary as the result of a 1967 decision of the Supreme Court holding that the oath was unconstitutional.
Facts
The amended petition for writ of mandate alleges that on and before November 4, 1950 petitioner was employed as a full professor, with tenure, at San Francisco State College; that on November 4, 1950 he was discharged because of his refusal to sign the Levering Oath; that his refusal to do so was based upon his belief that it operated as an unconstitutional abridgment of academic freedom and of his constitutional rights of free speech and assembly; that in 1952 the Supreme Court held that the 'Levering Oath' was constitutional (Pockman v. Leonard, 39 Cal.2d 676, 249 P.2d 267); that in 1953 the California State Personnel Board upheld the dismissal; that because of Pockman, petitioner did not seek judicial review of the action of the Personnel Board; that on December 21, 1967 the Supreme Court held the 'Levering Oath' unconstitutional and expressly overruled Pockman (Vogel v. County of Los Angeles, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961); that Vogel became final on March 20, 1968; that on March 26, 1968 petitioner requested respondents to reinstate him to his teaching position, to restore his pension rights upon his payment of his required contribution into the pension fund, and to reimburse him for the difference between the salary he earned in other employment and that of his former position had he not been dismissed; that on April 5, 1968 respondents denied petitioner's request; that on May 7, 1968 petitioner filed a claim with the State Board of Control for reimbursement of lost earnings and restoration of pension rights; and that the claim was rejected June 18, 1968. The amended petition further alleges that respondents would not be burdened by petitioner's reinstatement because there is a shortage of teachers with petitioner's qualifications, no person would have to be dismissed or demoted, and since not more than 15 persons were discharged because of their refusal to subscribe to the oath, the possible financial burden to respondents would not exceed $500,000 in the event of a ruling favorable to petitioner.
We assume that the amended petition sets forth all administrative and judicial relief heretofore sought by petitioner. We note that he does not allege that he appeared as a party litigant in either Pockman v. Leonard, supra, 39 Cal.2d 676, 249 P.2d 267, or Vogel v. County of Los Angeles, supra, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961, or any other judicial proceeding involving the oath.
A general demurrer to the amended petition was sustained with leave to amend. Petitioner failed to amend, an order of dismissal was entered, and this appeal is taken therefrom.
Contentions
Petitioner contends that Vogel should be given retroactive application and that as a result, he is entitled to the relief sought by virtue of the tenure statutes. Respondents deny these contentions and advance the further contentions that petitioner is barred by the statute of limitations and by laches, and that respondents are immune from liability for damages.
Vogel v. County of Los Angeles
Vogel (68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961) was a taxpayer's suit to prohibit the expenditure of public funds for administering or enforcing the Levering Oath, subsequently incorporated into the California Constitution. (Cal.Const., art. XX, § 3, second paragraph.) The Supreme Court, in holding the requirement of the oath to be unconstitutional, noted that in Pockman it had upheld the constitutionality of the oath, and that subsequently thereto, decisions of the United States Supreme Court and other courts established constitutional doctrines not recognized in Pockman which required that Pockman be reexamined in the light of such decisions. After a lengthy review of constitutional principles, the Supreme Court stated 'that, although an individual can claim no constitutional right to obtain public employment or receive any other publicly conferred benefit, the government may not condition public employment or receipt of such benefit upon any terms that it may choose to impose' (68 Cal.2d at p. 21, 64 Cal.Rptr. at p. 411, 434 P.2d at p. 963); and that '[e]ven where a compelling state purpose is present, restrictions on the cherished freedom of association protected by the First Amendment and made applicable to the states by the Fourteenth Amendment must be drawn with narrow specificity' (68 Cal.2d at p. 22, 64 Cal.Rptr. at p. 411, 434 P.2d at p. 963). The court then concluded by holding that the state had not met its burden in demonstrating the practical necessity for the requirement of the oath by public employees.
Laches
We first dispose of the defense of laches. Respondents argue that they have been prejudiced by petitioner's delay for approximately 15 years in seeking judicial relief by being deprived of his services, and by allowing his damages to accumulate; that the delay is per se unreasonable; that as a result he is barred from obtaining equitable relief by way of mandamus.
Although this argument appears to have considerable merit, it is no longer the law in an action for reinstatement by a discharged public employee. In Conti v. Board of Civil Service Commissioners, 1 Cal.3d 351, 362, 82 Cal.Rptr. 337, 344, 461 P.2d 617, 624, the Supreme Court expressly overruled numerous cases that had held that prejudice would be presumed from unreasonable delay, and held that unreasonable delay, without more, is no defense, that '[l]aches may be raised by demurrer, but only if the complaint shows on its face unreasonable delay plus prejudice or acquiescence' [italics in original], and that 'petitioner * * * need not plead excuse or explanation.'
Here no contention is made that the petition shows on its face any prejudice to respondents; in fact, the petition contains allegations negating prejudice. Nor can it be said that the petition shows on its face any acquiescence by petitioner. Abstaining from seeking judicial relief is insufficient; acquiescence implies active assent. (Lux v. Haggin, 69 Cal. 255, 270-271, 4 P. 919, 10 P. 674 (cited in Conti, supra, 1 Cal.3d 359, fn. 8, 82 Cal.Rptr. 337, 461 P.2d 617).)
The demurrer cannot be sustained on the ground that the petition fails to state a cause of action due to laches.
Statute of Limitations
Respondents contend that the petition shows on its face that it is barred by the failure of petitioner to file a claim within the time prescribed by section 911.2 of the Government Code and its predecessor and his failure to commence suit within the statutory period of one year (Gov.Code, §§ 19630 and 945.6), or within the three year statutory period, as contended by respondent. (Code Civ.Proc., § 338, subd. 1.)
'[A] mandamus proceeding is barred if not commenced within the period prescribed by the limitations statutes and that * * limitation begins to run when the right first accrues. [Citations.]' (Barlow v. City Council of Inglewood, 32 Cal.2d 688, 697, 197 P.2d 721, 726; cf. Ginns v. Savage, 61 Cal.2d 520, 524, 39 Cal.Rptr. 377, 393 P.2d 689.)
The basic question is not which statute applies; it is when did petitioner's right of action accrue, in 1950 when he was dismissed, or in 1953 when the State Personnel Board sustained his dismissal, or in 1968 when the Vogel judgment became final? If his right of action accrued in either 1950 or 1953, unless the statute was tolled, the present action is barred, regardless of which statute applies. On the other hand, if his right of action did not accrue until 1968, his petition has been filed timely.
In Stockton v. Department of Employment, 25 Cal.2d 264, a public employee reinstatement action, the Supreme Court clearly answered this question, stating on pages 267-268, 153 P.2d 741 on page 743: 'Once the decision of the State Personnel Board becomes final because the aggrieved party has failed either to exhaust his administrative remedies or to seek judicial redress, the courts will not review the merits of the controversy, if the board acted within its jurisdiction, for the decision is then immune from objections in a collateral proceeding. [Citations.]'
Here, it is clear that the State Personnel Board had jurisdiction of the subject matter and the parties. Its 1953 decision has long since become final, and is res judicata, not subject to collateral attack, even though based upon an erroneous interpretation of the law (Overstreet v. County of Butte, 57 Cal.2d 504, 506, 20 Cal.Rptr. 631, 370 P.2d 335; Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control, 55 Cal.2d 728, 730, 13 Cal.Rptr. 104, 361 P.2d 712; Pacific Mut. Life Ins. Co. v. McConnell, 44 Cal.2d 715, 726-727, 285 P.2d 636; Zeppi v. State of California, 203 Cal.App.2d 386, 388-389, 21 Cal.Rptr. 534), unless the statute of limitations was tolled, or unless respondents are estopped from raising the defense, or unless Vogel should be applied retroactively.
Impracticability of Bringing Action. Petitioner points out that his discharge in 1950 and the 1953 order sustaining the discharge were lawful and proper at the time under Pockman, and argues that to hold that petitioner was required to seek judicial relief within the statutory period thereafter would in effect mean that petitioner should have compounded his difficulties following his discharge in 1950 by pursuing an expensive, publicity-ridden and inevitably futile course of litigation; that only after respondents following Vogel refused his reinstatement, with tenure, back pay and revived pension rights, could it have become clear to him that an action requiring respondents to perform mandatory duties would be necessary; and that until then, petitioner was justified in relying upon the usual presumption that respondents as public officials would willingly perform statutory duties.
We construe this argument as being based on the legal maxim that the law does not require idle acts (Civ.Code, § 3532), that it would have been futile for him to have sought judicial relief between 1953 and 1968 (Vogel), and that we should hold that under the circumstances the courts must be deemed to have been effectively closed to him.
We do not agree. The circumstances presented do not demonstrate legal or physical impossibility, practical impossibility, or futility. The courts have been available to petitioner at all times. Had he prosecuted his claim within the statutory period, perhaps he would have been the one to cause Pockman to be overruled. Instead, he sat idly by, allowing damages to accrue, awaiting some other person to do his litigating. Under petitioner's theory, whenever a precedent which denied a right of action is overturned by a subsequent decision, all persons who had been aggrieved as the result of the precedent case could then file suit, no matter how many years had elapsed between the precedent decision and the overruling case. Such a proposition cannot be sustained. (See Estate of Horman, Cal., 95 Cal.Rptr. 433, 485 P.2d 785.)
Impossibility of Bringing Action. Relying on Lerner v. Los Angeles City Board of Education, 59 Cal.2d 382, 29 Cal.Rptr. 657, 380 P.2d 97, petitioner argues that it was impossible for him to have sued the trustees for reinstatement before Vogel because he had not met the necessary qualifications to teach at that time, that is, he had not subscribed to the loyalty oath, and therefore the statute of limitations did not begin until he had an effective cause of action, i. e., until Vogel.
Lerner involved a teacher discharged in 1954 by the city because the State Board of Education, based upon an erroneous interpretation of a statute, had revoked his teaching credential, a necessary requirement for employment by the city. In 1958, after the passage of the applicable statutory period of limitations, the state board voluntarily reinstated his teaching credential. Notwithstanding this action, the city board refused to reinstate Lerner. He thereupon sought relief by mandamus. The city board contended that Lerner's cause of action accrued in 1954 and was barred by the three-year period of limitation. The Supreme Court disagreed, holding that since the city board could neither have reinstated nor employed 1954 in favor of the city board, the city board, being in privy with the state board, was bound by the latter's voluntary conduct which resulted in a waiver of and estoppel from raising the defense. (Id. at pp. 396-397, 29 Cal.Rptr. 657, 380 P.2d 97.)
We do not agree with petitioner's contention and find that Lerner is distinguishable from the instant case. In Lerner possession of a teaching credential was expressly found to be a condition precedent to judicial relief; here, petitioner's refusal to take the oath would in no way preclude him from seeking judicial relief. Furthermore, in Lerner, the petitioner had no conand that even if the statute began to run in Lerner prior to the state board's restoration of his teaching credential in 1958, the statute did not commence to run in favor of the city board until then (59 Cal.2d at pp. 390-391, 29 Cal.Rptr. 657, 380 P.2d 97), trol over the issuance of his credential; here petitioner was under no disability; his failure to seek timely relief was due to his independent decision.
Estoppel. Citing Lerner, supra, 59 Cal.2d 382, 29 Cal.Rptr. 657, 380 P.2d 97, and Driscoll v. City of Los Angeles, 67 Cal.2d 297, 61 Cal.Rptr. 661, 431 P.2d 245, petitioner argues that respondents are estopped from raising the defense of the statute of limitations. In Driscoll representatives of the city erroneously advised the petitioner as to the legal effect of certain statutes as they applied to the petitioner; the petitioner, relying thereon, failed to seek timely judicial relief. (67 Cal.2d at p. 310, 61 Cal.Rptr. 661, 431 P.2d 245.) In Lerner the state board erroneously advised the petitioner that it lacked jurisdiction and authority to restore his credential; this advice induced the petitioner's inaction. (59 Cal.2d at pp. 396-397, 29 Cal.Rptr. 657, 380 P.2d 97.) In each case the Supreme Court concluded that the respondent, having given advice relied on by the petitioner, was estopped from interposing the defense.
Neither case is in point. Here we have no allegation that respondents rendered any advice or did anything that induced petitioner not to seek judicial relief during the statutory period; his decision was made independently. There is no basis for his contention that respondents are estopped from asserting the statute of limitations.
Retroactive Application of Vogel. To avoid the bar of the statute of limitations petitioner contends that a case vindicating a basic constitutional right previously denied should be given full retroactivity, absolving him of disabilities suffered due to reliance on a prior erroneous decision. He relies on recent cases involving constitutional rights of criminal defendants wherein the courts have held overruling decisions to be retroactive in operation, and by analogy argues that they are controlling since he in effect was found guilty of disloyalty and was deprived of his livelihood without trial or proof because of his assertion of First Amendment rights.
Extensive reviews of the cases discussing the retroactive application of overruling decisions are found in In re Johnson, 3 Cal.3d 404, 90 Cal.Rptr. 569, 475 P.2d 841. (See also Justice Burke's dissenting opinion in People v. Mutch, 4 Cal.3d 389, 403-410, 93 Cal.Rptr. 721, 482 P.2d 633; and Note, 10 A.L.R.3d 1371.)
In determining whether to apply newly adopted constitutional rulings retroactively in criminal cases, courts have considered three criteria: (1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice. (Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248, 255; In re Johnson, supra, 3 Cal.3d at p. 410, 90 Cal.Rptr. 569, 475 P.2d 841.) In analyzing the numerous federal decisions, the court in Johnson noted at pages 410-413, 90 Cal.Rptr. at page 573, 475 P.2d at page 845 that they 'break down along consistent lines. Fully retroactive decisions are seen as vindicating a right which is essential to a reliable determination of whether an accused should suffer a penal sanction. [Citations with descriptive notes.] [p] On the other hand, decisions which have been denied retroactive effect are seen as vindicating interests which are collateral to or relatively far removed from the reliability of the factfinding process at trial. [Citations with descriptive notes.]'
Johnson, supra, 3 Cal.3d 404, 90 Cal.Rptr. 569, 475 P.2d 841, involved a petitioner who was convicted in 1965 on a narcotic offense; prior narcotic convictions in 1950 and 1954, which would affect his sentence, were found to be true. Thereafter the Court of Appeal affirmed the conviction and the Supreme Court denied a hearing. The current proceeding was in habeas corpus wherein Johnson asserted the invalidity of the 1950 prior conviction on the ground that a 1969 United States Supreme Court decision involving the constitutional privilege against self-incrimination (Fifth Amendment) would preclude petitioner's present conviction of the 1950 offense. In granting the writ and applying the United States Supreme Court's decision retroactively, thereby vacating the finding that the 1950 prior conviction was true, the court said: 'Unlike rules which are collateral to the guilt of prisoners convicted of violating statutes of unquestioned validity, the rules in question here deny the propriety of the statutory scheme under which prisoners were convicted.' (3 Cal.3d at p. 415, 90 Cal.Rptr. at p. 575, 475 P.2d at p. 847.) The court added that 'there is no reason to forbid [collateral] attacks when convictions are based upon statutes as to which the Constitution affords a complete defense.' (Id. at p. 416, 90 Cal.Rptr. at p. 577, 475 P.2d at p. 849.)
We now consider the present case in the light of the three criteria set forth above, suggested by Desist, supra, and Johnson, supra. Respondents present factually supported arguments on the second and third standards. We cannot consider such facts in ruling on a demurrer; we must assume to be true all material facts properly pleaded by petitioner. The allegations of the amended petition are sufficient to meet the second and third criteria. We therefore confine our discussion to the first test, the purpose of the new rule.
Petitioner argues that the purpose of Vogel and the reason for its retroactive application to him is to wipe out a 'judgment of disloyalty' and 'the exaction of a severe penalty' which resulted from an unfair guilt-determining process. The thrust of this argument is that his situation is comparable to that presented in those criminal cases discussed in Johnson, supra (3 Cal.3d at p. 411, 90 Cal.Rptr. 569, 475 P.2d 841) wherein the rule of retroactivity has been adopted.
We do not agree with petitioner's contention and conclusion. First, in our review of criminal cases in which the question of the retroactive application of judicial decisions has been discussed, we have found no decision of retroactivity where a First Amendment right was involved. In other words, cases involving the First Amendment, such as Vogel, are not concerned with 'vindicating a right which is essential to a reliable determination of whether an accused should suffer a penal sanction' ( Johnson, supra, id. at p. 411, 90 Cal.Rptr. at p. 573, 475 P.2d at p. 845) and thus, under Johnson, are not to be applied retroactively; at most they would be 'vindicating interests which are collateral to or relatively far removed from the reliability of the fact-finding process at trial.' (Johnson, supra, id. at pp. 411-412, 90 Cal.Rptr. at p. 573, 475 P.2d at p. 845.)
Second, the purpose of Vogel is not, as asserted by petitioner, to protect free speech and freedom of association, to expunge a 'judgment of disloyalty' against him, and to vindicate him. Its purpose is to protect future applicants for state employment from having to condition their employment upon taking an oath which limits speech and association. (Vogel, 68 Cal.2d at p. 21, 64 Cal.Rptr. 409, 434 P.2d 961.) Vogel merely refers to a change in the standards or requirements of employment. (See American Civil Liberties Union v. Board of Education, 59 Cal.2d 203, 214-216, 28 Cal.Rptr. 700, 379 P.2d 4.)
Third, petitioner compares his situation with that presented in State of Wisconsin v. Constantineau (1971) 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515, wherein the United States Supreme Court considered a statute providing that designated officials may by a posted written notice and without a hearing forbid the sale of intoxicating beverages to known alcoholics. In holding the statute unconstitutional the court said: 'Generalizations are hazardous as some state and federal administrative procedures are summary by reason of necessity or history. Yet certainly where the State attaches 'a badge of infamy' to the citizen, due process comes into play. [Citation.] * * * '[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.' [Citation.]' (400 U.S. 436-437, 91 S.Ct. 510, 27 L.Ed.2d 518-519.)
We do not agree with petitioner's argument. Its relevance is based upon the assumption that petitioner was branded in 1950 without due process of being 'disloyal.' There is no basis for this assumption; no such finding was ever made. Furthermore, he is in no position to claim a violation of the Fourteenth Amendment; the courts were available to him at all times for judicial relief.
Fourth, we find that some federal courts have concluded that a new broader test of criminal insanity should not be retroactively applied to cases that were final when the new test was announced. (See Wade v. United States (9 Cir. 1970) 426 F.2d 64, 73-74; Blake v. United States (5 Cir. 1969) 407 F.2d 908, 916; United States v. Smith (6 Cir. 1968) 404 F.2d 720, 728.) Other federal courts have held that such a test is prospective only, except for the case before the court. (See United States v. Shapiro (7 Cir. 1967) 383 F.2d 680, 687; Durham v. United States (1954) 94 U.S.App.D.C. 228, 214 F.2d 862, 874.) The facts of such cases certainly present a stronger policy argument for retroactivity than Vogel because the defined criteria as to whether a crime has been committed has been changed.
Although petitioner does not analogize his case with civil proceedings wherein the retroactive effect of overruling decisions has been considered, we mention that, except for cases involving extrinsic fraud, the reported authorities have consistently denied relief on the ground of res judicata to litigants whose adverse judgments had become final. (See Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control, supra, 55 Cal.2d 728, 731-733, 13 Cal.Rptr. 104, 361 P.2d 712; Zeppi v. State of California, supra, 203 Cal.App.2d 386, 388-389, 21 Cal.Rptr. 534; County of Butte v. Superior Court, 178 Cal.App.2d 310, 311, 2 Cal.Rptr. 913.) The reasoning is succinctly stated in Zeppi, supra, 203 Cal.App.2d at pages 388-389, 21 Cal.Rptr. at page 536: 'In every instance where a rule established by case law is changed by a later case the earlier rule may be said to be 'mistaken'--in one sense of the word. It also may be said to be 'unjust'; otherwise it would not have been changed. Such 'mistakes' or 'injustices' are not a ground for equity's intervention. So to hold would be to emasculate, if not wipe out, the doctrine of res judicata because the doctrine is most frequently applied to block relitigation based upon contentions that a law has been changed. Our courts have repeatedly refused to treat the self-evident hardship occasioned by a change in the law as a reason to revive dead actions; * * *.'
In the instant case, not only do we have a final judgment, but we have an additional factor, the statute of limitations, not present in the cited cases. Thus if there was reason to deny equitable relief in those cases, we have an additional reason to deny such relief in this case.
We therefore conclude that there is no legal or equitable basis for applying Vogel retroactively in order to avoid the bar of the statute of limitations.
Conclusion
In view of our conclusion that the 1953 order of dismissal of the State Personnel Board has long since become final, that the order is res judicata, and that the present proceeding is barred by the statute of limitations, we need not consider other contentions raised by respondents.
Judgment (order of dismissal) is affirmed.
FORD, P. J., and ALLPORT, J., concur. --------------- 1 'And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: * * * (If no affiliations, write in the words 'No Exceptions') and that during such time as I am a member or employee of the ........ (name of public agency) I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.'