Brumbaugh v. City of
Filed 5/21/13 Brumbaugh v. City of Torrance CA2/8
PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
JOHN BRUMBAUGH,
Plaintiff
and Respondent,
v.
CITY OF TORRANCE et al.,
Defendants
and Appellants.
B239691
(Los Angeles
County
Super. Ct.
No. BS116891)
APPEAL
from the judgment of the Superior Court
of
County. James C.
Chalfant, Judge. Reversed and remanded
with directions.
Liebert
Cassidy Whitmore, Mark H. Meyerhoff, David A. Urban and Jennifer K. Palagi for
Defendants and Appellants.
Lackie,
Dammeier & McGill and Michael A. Morguess for Plaintiff and Respondent.
* *
* * * * * * * *
Defendants and appellants
City of Torrance
(hereafter City),
John Neu and Ross Bartlett appeal from the judgment of the trial court entered January 27, 2012, granting plaintiff
and respondent John Brumbaugh’s second petition for writ of mandate and
ordering the City, his former employer, to provide him a further hearing on his
request for reinstatement as a police officer.
This is the third appeal plaintiff has filed in his effort to obtain
reinstatement. The two previous appeals
were decided in unpublished opinions issued by Division Two of this court. Those related appeals, both titled
(Sept. 16, 2008, B202117)
and (Sept. 15, 2009,
B210529), arose from writ proceedings in superior court case No. BS097255. We take judicial notice of those unpublished
decisions. (See Evid. Code, § 452, subd.
(d); Deschene v. Pinole Point Steel Co.
(1999) 76 Cal.App.4th 33, 37, fn. 2.)
petition and related claims in superior court case No. BS116891, by which
plaintiff sought to enforce the mandamus judgment entered in the earlier filed
case, which we shall refer to as the 2007 Judgment.
Plaintiff’s
employment as a police officer was terminated in 1998 after he suffered a
felony conviction. Several years later,
the conviction was overturned and plaintiff petitioned for a writ of mandate to
compel the City to set aside his termination and reinstate him. The trial court denied the petition in part
and granted it in part, directing the City to conduct a hearing to determine
the status of plaintiff’s revived interest in his employment. Thereafter, the trial court denied
plaintiff’s motion for attorney fees on the grounds that, in granting plaintiff
partial relief, it had not found any violation of plaintiff’s constitutional
rights or any public benefit conferred by plaintiff’s action.
In
the first appeal (B202117), this court affirmed the denial of attorney fees,
finding that plaintiff did not establish he suffered a constitutional
deprivation; nor did he establish that his lawsuit resulted in the enforcement
of an important right affecting the public interest. That opinion construed the 2007 Judgment as
granting plaintiff a hearing to determine whether or not he possessed a revived
interest in employment by reason of his conviction being reversed. We find that opinion established as law of
the case that plaintiff had no constitutional right to the hearing ordered in
the 2007 Judgment, and that the 2007 Judgment expressly allowed for the
possibility that plaintiff did not retain any constitutionally protected
interest in continued employment.
The
City held a further hearing as ordered in the 2007 Judgment to determine if
plaintiff was fit to serve as a police officer and therefore had a revived
interest in employment. The issue in
dispute in this appeal is whether that hearing denied plaintiff's constitutional
rights to a full evidentiary hearing. We
conclude the trial court, in the second writ proceeding, erroneously found
plaintiff had constitutional rights to an evidentiary hearing to challenge the
results of the background investigation of his conduct over the nine-year
period since his termination. That
principle of law was decided against plaintiff in the first appeal. The extensive background check demonstrated
plaintiff was unfit to serve as a police officer and, therefore, had no
revived, constitutionally protected property interest in continued employment.
For
reasons described below, the question whether law of the case prevented the
court from revisiting whether plaintiff had any constitutional right to a
fitness hearing was never raised in the trial court. We find significant to our disposition of
this appeal that the trial court acknowledged the parties’ surprise when it
announced its tentative ruling to grant plaintiff an additional, evidentiary
hearing. We are therefore not inclined
to find the City waived or forfeited application of the law of the case
doctrine. We reverse and remand for
further proceedings that are consistent with this opinion, to permit the trial
court to consider whether there is any basis in the record for granting
plaintiff the relief requested.
FACTUAL AND
PROCEDURAL BACKGROUND
Background
of Facts and Proceedings Before the First Appeal
We begin by reciting pertinent
sections of the factual and procedural background of this case from the first
appeal.
“[Plaintiff] was employed
as a police officer with the City. In
February 1998, police officers from the City of Lomita responded to a call from
[plaintiff[’s girlfriend, who reported an incident of domestic violence. An internal affairs investigation also ensued
as a result of this incident. The Office
of the District Attorney of Los Angeles County filed a seven-count complaint as
a result of the incident, and [plaintiff] was arrested on February 24, 1998. In August 1998, a jury found [plaintiff]
guilty of violating Penal Code section 136.1, subdivision (c)(1) (felony
dissuading a witness), Penal Code section 243, subdivision (e)(1) (misdemeanor
domestic battery) and Penal Code section 136.1, subdivision (b)(2)
(misdemeanor dissuading a witness).
“The City Municipal Code
authorizes a department head, with the city manager’s approval, to discharge an
employee for, among other things, misconduct or the failure to observe the
City’s rules and regulations. On
September 3, 1998, the City Chief of Police wrote to [plaintiff], informing him
that the City intended to discharge him for misconduct.
“On October 28, 1998, the
City held an informal administrative hearing to review the recommendation of
the chief of police that [plaintiff] be terminated for cause. On November 2, 1998, the assistant city
manager notified [plaintiff] the City had determined to uphold the police
department’s termination recommendation.
Thereafter, [plaintiff] filed a request for review of the decision.
“In January 1999, the
City’s Civil Service Commission (Commission) held a hearing pursuant to
[plaintiff]’s request, resulting in the issuance of findings of fact and
conclusions of law determining the City properly exercised its discretion in
imposing discharge as a disciplinary action against [plaintiff]. After outlining the bases of [plaintiff’s]
conviction, the Commission concluded that [plaintiff] ‘committed misconduct and
failed to observe the rules and regulations of the Department when he engaged
in each instance of criminal conduct described above.’ The Commission rejected [plaintiff]’s
contention that discharge was premature because [plaintiff] had appealed his
conviction and reversal, if obtained, would eliminate the basis for the
discharge. [Plaintiff] appealed, and the
city council upheld the Commission’s decision.
“Several years later, in
January 2005, the United States District Court for the Central District of
California granted [plaintiff]’s petition for writ of habeas corpus on the
basis of prejudicial instructional error and ordered that [plaintiff] be
retried within 60 days or discharged from any adverse consequences of his
conviction. The district attorney’s
office determined not to retry [plaintiff].
“On June 3, 2005,
[plaintiff] filed a petition for writ of mandate against the City and the
Commission alleging that the Commission had failed to provide him with an
appeal hearing from his termination and that it had a ‘clear, present, and
ministerial duty to provide [him] with an administrative appeal under the law.’ [Plaintiff] sought the issuance of a
peremptory writ compelling the City and the Commission to set aside the
decision to uphold his termination and provide him with an administrative
appeal; to reinstate him to his previous position; to provide him with backpay,
benefits and interest; and to remove references to the termination from his
personnel file. Thereafter, on
June 9, 2005, [plaintiff] wrote to the Commission requesting that it
reopen his appeal on the basis of his overturned conviction and noting that he
had filed the petition for writ of mandate as a ‘precautionary measure.’ The civil service manager responded to
[plaintiff] on July 18, 2005, stating the Commission lacked authority to reopen
a final decision of the City. [¶]
. . . [¶]
“Almost two years later,
in April 2007, plaintiff filed a motion for hearing on his petition. The city manager and City’s Chief of Police
intervened to oppose the petition.
Following a June 1, 2007 hearing, the trial court issued a judgment
denying [plaintiff]’s petition pursuant to Code of Civil Procedure section 1085
to the extent it sought reinstatement and pursuant to Code of Civil Procedure
section 1094.5, as the decision to terminate was not an abuse of
discretion. However, it granted the
petition pursuant to Code of Civil Procedure section 1085 to compel a hearing
‘as set forth in Tuffli v. [
1398 [Tuffli], to determine the
status of [plaintiff]’s revived interest in employment with the [City] in light
of the reversal of [plaintiff]’s felony conviction.â€
“After judgment was
entered, [plaintiff] filed a motion for an award of attorney fees in the amount
of $47,677.50, asserting entitlement under both Title 42 United States Code
section 1988 . . . and Code of Civil Procedure section 1021.5. The City and the interveners opposed, arguing
that [plaintiff] was not entitled to attorney fees under [United States Code]
section 1988 because he was not a prevailing party and, alternatively, because he
neither suffered a constitutional deprivation nor established a violation of an
unconstitutional practice, policy or custom as required by Title 42 United
States Code section 1983 . . . . They further argued that [plaintiff] failed to
establish that his lawsuit enforced a significant public right or conferred a
public benefit as required by Code of Civil Procedure section 1021.5.†(Brumbaugh
v. City of Torrance (Sept. 16, 2008, B202117) [pp. 2-4, nonpub. opn.]
(hereafter Brumbaugh).)
The trial court
denied the motion, and Division Two of this court affirmed the denial, issuing
the unpublished decision in B202117 noted above.
Background
of Facts and Proceedings Before the Second Appeal
Pursuant
to the 2007 Judgment, the city council held a hearing on September 25,
2007. After hearing argument from
counsel for the City and plaintiff, the city council ordered the police
department to conduct, “as soon as practicable,†a background investigation of
plaintiff, in accordance with Government Code section 1031,
plaintiff’s discharge. The city council
indicated it would review the background materials and the police department’s
report of its investigation at a subsequent hearing to determine the status of
plaintiff’s revived interest in employment with the City as a police
officer. The police department assigned
defendant Ross Bartlett, a lieutenant in the department, to head the background
investigation of plaintiff, which took several months to complete.
In
January 2008, plaintiff filed a motion to “enforce†the 2007 Judgment, seeking
an order that the City complete its background investigation without requiring
him to sign releases and waivers and without requiring him to undergo a
physical or psychological examination.
The court denied the motion and directed plaintiff to provide the
records sought and to submit to an examination by the City’s doctors. The court reasoned the City had a right to
determine if any disqualifying factors or events had occurred during the nine
years since plaintiff’s discharge that would disqualify him from serving as a
police officer.
In
April 2008, plaintiff was notified the city council had set a resumed hearing
date and a briefing and argument schedule, and that before the hearing,
plaintiff would be provided with a copy of the materials prepared by the police
department during its background investigation.
Plaintiff raised objections to the proposed procedure before the city
council, arguing that it was required to hold an evidentiary hearing with live
testimony and cross-examination of witnesses.
The City’s acting civil service manager responded that the hearing was a
continuation of the initial September 2007 hearing for the purpose of
presenting the results of the background check so the city council could resume
its determination of plaintiff’s revived interest in employment.
On
April 28, 2008, the police department submitted the results of its
investigation to the City, along with a report recommending that plaintiff not
be reinstated as a police officer based on the information obtained during its
investigation. On May 1, 2008, plaintiff
sought ex parte relief in the trial court, arguing the City’s proposed hearing
procedure did not comport with due process.
The trial court denied plaintiff’s application.
The report,
consisting of 500 pages, with 40 exhibits, numerous witness statements and
documents, was forwarded to plaintiff for review in preparation for the
hearing. The report, signed by defendant
Police Chief John Neu, summarized the results of the department’s lengthy
investigation and identified the 10 job dimensions or qualities which the
California Commission on Peace Officer Standards and Training (POST) considers
relevant to the fitness of an individual to serve as a peace officer. The 10 job dimensions are integrity; impulse
control/ attention to safety; substance abuse and other risk-taking behavior;
stress tolerance; confronting and overcoming problems, obstacles and adversity;
conscientiousness; interpersonal skills; decisionmaking and judgment; learning
ability; and communication skills. The
investigation revealed that plaintiff had deficits or concerns in nine of the
ten POST categories.
On
numerous occasions in the years after his conviction and discharge, plaintiff
violated the domestic violence restraining orders issued to protect his
ex-girlfriend,
conduct. Individuals interviewed during
the investigation confirmed the facts relevant to several of these occasions,
as well as other incidents in which plaintiff exhibited poor behavior and
anger-control problems, such as leaving the scene of one such confrontation
with his ex-girlfriend by racing his car through a parking lot in which people
were present.
title="">[4] Eric W. Gruver, Ph.D., performed a psychological
examination of plaintiff, and concluded he was a “ ‘moderate-risk’ â€
candidate with a “ ‘significant potential’ †for serious alcohol
and/or drug abuse, resulting in plaintiff only being “conditionally
recommended†for duty.
The
report also described how plaintiff’s refusal to fully participate in the
background investigation hindered and delayed the City’s efforts to determine
plaintiff’s fitness for a return to duty.
For instance, plaintiff refused to participate in a polygraph examination,
a routine component of all officer candidate investigations. He also refused an interview with the
investigators unless his attorney was present.
The interview was another customary component of a background
investigation to allow candidates to clarify or explain information uncovered
during the investigation. As a result,
the report stated “there are several significant issues that remain unresolved
that investigators cannot explain but remain areas of concern.â€
Dr.
James Deutsch, who performed plaintiff’s physical exam, was unable to make a
recommendation as to plaintiff’s physical fitness for duty. That was because plaintiff had failed to
disclose a cervical C6-7 fusion procedure performed in 2005 for previously
diagnosed scoliosis, and then failed to provide a medical release either from
the doctor who had performed the procedure or from someone else who was
similarly qualified to evaluate the effect of this procedure on plaintiff’s
physical fitness to perform police officer duties. Plaintiff only provided a release from a
primary care doctor who had seen him only one time and who was unwilling to
clear him without restrictions for job duties that posed the threat of “major
physical altercations.†Plaintiff also
had not obtained clearance from the California Department of Justice to possess
and carry a firearm. While plaintiff
apparently obtained a correction of his records from the Department of Justice
sometime in the future, at the time of the May 2008 hearing, he was still
subject to the firearms prohibition.
The
parties submitted hearing briefs to the city council. Plaintiff attached letters, declarations and
other documentary evidence to his brief.
The
hearing proceeded before the city council as scheduled on May 13, 2008. At the start of the proceedings, counsel for
plaintiff reiterated his objection that the hearing should be an evidentiary
hearing. Counsel then briefly mentioned
the great volume of investigative materials, that they contained redactions,
and that they were only turned over to him about a week before. Counsel argued he therefore had no ability to
contest or establish the accuracy or inaccuracy of the materials in such a
short period of time and without an evidentiary hearing. Counsel did not request a continuance to give
him more time to review the materials and to provide a substantive opposition
argument. Counsel did not use the
balance of his allotted time, stating he was “hamstrung†and would submit on
the record and his brief.
Counsel for the
City then addressed the city council and argued the merits of the
recommendation in the police department report that, based on the results of
the background investigation, plaintiff should not be reinstated because he was
not minimally qualified to serve as a police officer under the standards
mandated by Government Code section 1031 and the POST guidelines.
At
the conclusion of the hearing, the city council adopted the findings in the
police department’s report, and voted unanimously that the City had legal cause
for declining to reinstate plaintiff as a police officer.
Shortly
thereafter, plaintiff filed an application in the trial court for an order to
show cause re contempt against the City, contending the City’s May 13, 2008
hearing format violated the 2007 Judgment and deprived him of due process. The trial court denied the application,
concluding, in part, the City’s decision to conduct a background investigation
was consistent with the dictates of the 2007 Judgment and did not necessitate
an evidentiary hearing. The trial court
found the procedure afforded by the city council, including the decision to
consider the fitness issue first, was “entirely consistent with the court’s
judgment and comments at the June 1, 2007 hearing.†The court explained the city council did not
deny plaintiff any due process rights because, until plaintiff was determined
to be fit to serve, he did not have a constitutionally protected interest in
reinstatement. Plaintiff appealed the trial
court’s order, and Division Two of this court dismissed the appeal on the
grounds the court’s order in the contempt proceeding was nonappealable, issuing
the unpublished appeal in B210529 noted above.
Background
of Facts and Proceedings Leading to This Appeal
In September 2008,
plaintiff filed his second petition for a writ of mandate, the petition at
issue in this appeal. Plaintiff alleged
the City had violated the “clear mandate of the Superior Court†in the 2007
Judgment by failing to hold a hearing that comported with Tuffli, the opinion cited in the 2007 judgment. Plaintiff sought a writ of administrative
mandate compelling the City to vacate its May 2008 decision and ordering his
reinstatement as a police officer with back pay, or alternatively affording him
a full evidentiary hearing before the civil service commission.
At the start of
the hearing on the petition, the trial court announced its tentative decision
to reconsider the rationale of its previous ruling on the order to show cause
re contempt and to find plaintiff was entitled to an evidentiary hearing on his
qualifications and fitness to be a police officer under section 1031 of the
Government Code. The court acknowledged
counsel’s surprise at hearing the tentative ruling. The record does not reflect that any party
had moved for reconsideration of the previous ruling on the order to show cause
re contempt.
After
hearing lengthy argument, the trial court granted plaintiff’s second petition
and entered judgment in plaintiff’s favor on January 27, 2012, ordering the
City “to vacate its order and decision dated May 13, 2008 . . . that
[City] had legal cause not to reinstate John Brumbaugh; the Writ shall further
command [City] to provide [plaintiff] with a full evidentiary hearing
concerning his fitness for duty before a fair and impartial decision-maker and
which comports with Due Process, and who shall issue a written statement of
decision, which shall be reviewable by petition for writ of administrative
mandamus.†We shall refer to this
judgment as the 2012 Judgment.
In
its written decision supporting the 2012 Judgment, the trial court restated
that it was “sua sponte†revisiting
its earlier decision that plaintiff was not entitled to an evidentiary hearing
on the results of the police department’s background investigation. The court underscored that it was not finding
the City had acted in contempt of the 2007 Judgment, only that the court had
made a legal error in determining that no evidentiary hearing was required on
the fitness determination.
This
appeal followed.
DISCUSSION
Defendants argue
the doctrines of law of the case and res judicata barred the trial court from
revisiting the same issue resolved in the 2007 Judgment, and also that the
hearing procedure provided by the City in May 2008 not only was consistent with
the 2007 Judgment but duly comported with due process. Defendants further argue plaintiff waived any
due process challenge to the hearing that was afforded him by failing to
cooperate in the background investigation to establish his fitness for duty,
and by choosing not to take advantage of the opportunity to participate in and
be heard at the May 2008 hearing before the city council.
Where, as here, an
appeal of mandamus proceedings
presents a pure question of law, our review is de novo. (Mohilef
v. Janovici (1996) 51 Cal.App.4th 267, 285 [appeal of writ regarding
procedural matters implicating due process clause presented question of law
reviewed independently]; accord, County
of San Diego v. State of California (1997) 15 Cal.4th 68, 109; see also
(1998) 63 Cal.App.4th 95, 107-108 [interpretation of statutes and rules dealing
with employment of public employees, presented on undisputed facts, calls for
exercise of independent judgment].)
Res Judicata
Does Not Bar the Relief Granted in the 2012 Judgment
In
his second writ petition, plaintiff asked the court to compel the City to
provide him a quasi-judicial hearing on his request for reinstatement as a
police officer, alleging in part that the May 2008 hearing before the city
council, and not a factfinding body, violated the “clear mandate†of the 2007
Judgment. Defendants contend the
doctrine of res judicata prevented the relitigation of that issue which had
been finally and conclusively resolved by the 2007 Judgment, which plaintiff
had not appealed. While the 2007
Judgment is a final and conclusive judgment, we disagree that the doctrine of
res judicata applies to bar an action seeking to enforce a writ judgment.
A court that
“issues a writ of mandate retains continuing jurisdiction to make any orders
necessary and proper for the complete enforcement of the writ.†(Professional
Engineers in Cal. Government v. State Personnel Bd. (1980) 114 Cal.App.3d
101, 109; accord, Molar v. Gates
(1979) 98 Cal.App.3d 1, 25.) Any
inadequacy or failure to fully comply with the writ “may be dealt with in
subsequent orders of the court.†(
also Sanders v. City of Los Angeles
(1970) 3 Cal.3d 252 [adequacy of compliance with original writ tested in
subsequent proceedings challenging the respondent’s return to the writ].)
This authority
flows from the court’s inherent authority to compel obedience to its orders and
judgments, authority which has been codified at Code of Civil Procedure section
1097. Section 1097 has been construed as
vesting the trial court with wide latitude in issuing additional orders or
granting supplemental or additional writs to enforce full performance of a
judgment on a writ, even years after the issuance of the original writ. (See, e.g., King v. Woods (1983) 144 Cal.App.3d 571, 577-578 [affirming order
granting motion to enforce writ 10 years after issuance of writ];
Supervisors of Monterey County (1982) 137 Cal.App.3d 964, 971 [petitioner
may seek to obtain compliance with original writ in multiple ways including by
filing motion to enforce or supplemental writ in original action, or filing a
new writ petition].)
Plaintiff
here filed a new writ petition making various challenges to the proceedings
held by the city council and claiming further writ relief was necessary to
enforce the 2007 Judgment. The
as a bar to the trial court issuing an order to enforce the 2007 Judgment
through the granting of a supplemental writ.
However, as we next explain, the legal principles established in the
first appeal are law of the case, and the 2012 Judgment must be reversed
because it failed to adhere to those legal principles.
The Relief
Granted in the 2012 Judgment Conflicts with the Law of the Case
“Under the law of
the case doctrine, when an appellate court ‘ “states in its opinion a
principle or rule of law necessary to the decision, that principle or rule
becomes the law of the case and must be adhered to throughout [the case’s]
subsequent progress, both in the lower court and upon subsequent
appeal . . . .†’
[Citation.] Absent an applicable
exception, the doctrine ‘requir[es] both trial and appellate courts to follow
the rules laid down upon a former appeal whether such rules are right or
wrong.’ [Citation.] As its name suggests, the doctrine applies
only to an appellate court’s decision on a question of law; it does not apply
to questions of fact.†(
236, 246 (Barragan).) “The doctrine applies only to a decision of
an appellate court in the same case.†(9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 460, p. 517.) As explained above, the two related writ
proceedings involve the same parties and arose from the 2007 Judgment, so the
doctrine is appropriately applied.
Plaintiff does not argue otherwise.
In
the first appeal, Division Two affirmed the denial of plaintiff’s motion to
recover attorney fees in connection with obtaining the 2007 Judgment. Plaintiff sought statutory attorney fees,
including pursuant to Title 42 United States Code section 1988. The trial court denied the fee motion, in
relevant part, on the ground that the 2007 Judgment did not establish the City
had violated plaintiff’s constitutional rights.
(Brumbaugh,
A necessary basis for the opinion affirming the trial court was that
plaintiff had no constitutional right to an evidentiary hearing (i.e., no due
process right, no equal protection right) unless and until the City found he
was fit to serve. If plaintiff was fit
to serve, then his unilateral hope of reinstatement would ripen into a
legitimate claim of entitlement to reinstatement, with attendant constitutional
rights if the City declined to reinstate him for cause. (Id.
at p. 10.)
Division
Two reasoned that “ ‘[a]n individual “has a constitutionally protected
property interest in continued employment . . . if he has a
reasonable expectation or a ‘legitimate claim of entitlement’ to it, rather
than a mere ‘unilateral expectation.’ â€
[Citation.]’ (
F.3d 1035, 1040.) ‘A legitimate claim of
entitlement arises if it is created by “existing rules or understandings that
stem from an independent source such as state law.†[Citation.]
Thus “[s]tate law defines what is and what is not property†that is
subject to the due process clause of the Fourteenth Amendment. [Citations.]’
(Brady v. Gebbie (9th Cir.
1988) 859 F.2d 1543, 1548, fn. omitted.)â€
(Brumbaugh,
The
opinion in Division Two also explained the significance of the reference in the
2007 Judgment to the opinion in Tuffli,
supra, 30 Cal.App.4th 1398. This court’s analysis of the proper
interpretation to be given to the reference to Tuffli in the 2007 Judgment was a necessary part of the decision,
and thus is also law of the case.
evidentiary hearing on whether he should be discharged for cause was revived
upon the reversal of his conviction of sex offenses. The Division Two opinion in these proceedings
distinguished the hearing rights established for a teacher in the Education
Code, that were the subject of the Tuffli
case, from the rights afforded a police officer in the Government
Code.
“In
Tuffli, Education Code section 44836
provided the teacher with a legitimate claim to employment. But there is no corresponding state law providing
a police officer in similar circumstances [reversal of disqualifying
conviction] with a legitimate claim to employment. In relevant part, Government Code section
1029, subdivision (a)(1) states that ‘each of the following persons is
disqualified from holding office as a peace officer or being employed as a
peace officer of the state, county, city, city and county or other political
subdivision . . . .
(1) Any person who has been convicted of a felony.’ Unlike Education Code section 44836,
Government Code section 1029 creates no exception for a felony conviction which
has been reversed.†(
The
opinion reasoned further that Government Code section 1029 provides a limited
exception for individuals who receive a full and unconditional pardon of a
felony conviction to thereafter serve as a probation or parole officer, but
there is no express exception for individuals who receive a reversal or setting
aside of their conviction, which further supported the rule of law that
Government Code section 1029 did not operate in the same fashion as Education
Code section 44836.
The court also
emphasized the compelling public policy considerations behind the enactment of
Government Code section 1029.
“[P]recluding convicted felons from serving as peace officers ‘is
intended for the protection of the public, not as further punishment of the
convicted felon. . . .
[The prohibition] is designed “to assure, insofar as possible, the good
character and integrity of peace officers and to avoid any appearance to
members of the public that persons holding public positions having the status
of peace officers may be untrustworthy.â€
[Citation.]’ †(
Division
Two concluded by holding: “On the basis
of these state law provisions, the trial court properly exercised its
discretion in concluding that the failure to provide appellant with a hearing
was not a violation of his constitutional rights. Indeed, although the trial court granted
[plaintiff] a hearing as provided by Tuffli,
it expressly distinguished the level of [plaintiff’s] entitlement from that in
It ordered that the hearing was to determine the ‘status of
[plaintiff’s] revived interest in employment,’ thereby recognizing that the
hearing would involve the threshold question of whether [plaintiff] possessed a
revived interest in employment by reason of his conviction being reversed. The trial court’s order expressly allowed for
the possibility that [plaintiff] did not retain any constitutionally protected
property interest in continued employment and possessed only a ‘unilateral
expectation’ not afforded constitutional protection.†(Brumbaugh,
supra, B202117 [pp. 9-10, nonpub.
opn.].)
The Division Two
opinion established as a rule of law that governed all the subsequent
proceedings relating to enforcement of the 2007 Judgment that, unless plaintiff
was determined to be fit to serve as a peace officer in accordance with
Government Code section 1031 and the POST requirements, he only had a
“ ‘unilateral expectation’ †of reinstatement and no constitutional
right to an evidentiary hearing. This
legal principle was essential to Division Two’s analysis in affirming the trial
court’s denial of fees, and therefore became “ ‘ “the law of the case
and must be adhered to throughout [the case’s] subsequent progress, both in the
lower court and upon subsequent appeal . . . .†’ †(Barragan,
supra, 32 Cal.4th at p. 246.)
The 2012 Judgment
ordering the City to provide an evidentiary hearing on plaintiff’s fitness to
serve must be reversed, because it does not adhere to, but departs from, the
previous decision of this court that plaintiff had no constitutionally
protected property interest in reinstatement unless and until he was found fit
to serve as a police officer. “The
primary purpose served by the law-of-the-case rule is one of judicial economy. Finality is attributed to an initial
appellate ruling so as to avoid the further reversal and proceedings on remand
that would result if the initial ruling were not adhered to in a later
appellate proceeding.†(
Cal.3d 425, 435.)
Not only did the
trial court fail to adhere to this court’s opinion of September 16, 2008,
establishing that plaintiff had no constitutional
rights attendant to the fitness determination, but the court also
unexpectedly departed from two previous decisions of its own. In May 2008, the trial court denied
plaintiff’s ex parte motion claiming the City’s proposed hearing procedure did
not comport with due process. In June
2008, the trial court found no basis to hold the City in contempt for failing
to hold an evidentiary hearing before declining to reinstate plaintiff. The trial court was without authority to
unexpectedly reverse course and depart from the initial appellate ruling on
which the City had relied, and its judgment disserved the purpose of the law of
the case doctrine to the detriment of the parties and this court.
The Hearing
Provided by the City in May 2008 Complied with the 2007 Judgment
Although plaintiff
plainly had no constitutional right to an evidentiary
or quasi-judicial hearing, plaintiff
was afforded fair process in the consideration of his fitness for reinstatement
as a police officer. The May 2008
hearing before the city council not only complied with the dictates of the 2007
Judgment, but bore the quintessential hallmarks of due process: notice and an opportunity to be heard. “ ‘The essence of due process is the
requirement that “a person in jeopardy of serious loss [be given] notice of the
case against him and opportunity to meet it.â€
[Citation.] All that is necessary
is that the procedures be tailored, in light of the decision to be made, to
“the capacities and circumstances of those who are to be heard†[citation], to
insure that they are given a meaningful opportunity to present their
case.’ †(Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th
371, 392, quoting Mathews v. Eldrige
(1976) 424 U.S. 319, 348-349 (Mathews);
see also Cleveland Board of Education v.
Loudermill (1985) 470 U.S. 532, 546 [“essential requirements of due process
. . . are notice and an opportunity to respondâ€].) The precise contours of due process are
elusive. “It is a flexible concept
requiring accommodation of the competing interests involved, and its procedural
requisites necessarily vary depending on the importance of the interests
involved and the nature of the controversy.â€
(Burrell v. City of Los Angeles
(1989) 209 Cal.App.3d 568, 576.)
Pursuant to the
2007 Judgment, the City undertook an extensive background investigation
consistent with Government Code section 1031 and POST guidelines—an
investigation which was repeatedly thwarted in many aspects by plaintiff’s
refusal to participate and cooperate.
The City provided the investigative materials and the police
department’s report to plaintiff in advance of the hearing and gave due notice
of the hearing date and briefing schedule.
At no time did plaintiff seek a continuance to review the lengthy
materials or prepare an opposition. The
City allowed for briefing and argument before the city council. Counsel for plaintiff chose not to use all of
the time allotted, arguing instead that he could not effectively do so unless
an evidentiary hearing was provided.
Despite having an
opportunity to participate and present his side of the fitness question to the
city council, plaintiff chose not to fully participate, and also to obstruct
the fitness investigation from being fairly completed and presented to the city
council for decision. We do not decide
here the City’s argument that plaintiff’s conduct warrants a finding of mootness
or waiver; suffice it to say that we find plaintiff’s behavior undermines his
claim he was denied a fair hearing. The
numerous instances set forth by the police department in its report to the City
concerning plaintiff’s refusals to cooperate in the background investigation as
to matters required by POST for determining peace officer fitness for duty
plainly show a belligerent disregard for the process being afforded to
him. Due process requires an opportunity
to be heard, but if the opportunity is squandered, that does not equate with a
denial of due process. Even the trial
court, in issuing the 2012 Judgment, acknowledged that plaintiff was given due
notice and opportunity for argument, but “essentially declined to challenge
anything in the report or seek a continuance, standing on his right to an
evidentiary hearing.â€
As the United
States Supreme Court explained in Mathews,
three factors are generally considered and weighed in determining what process
is due. “First, the private interest
that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.†(Mathews, supra, 424 U.S.
at p. 335.)
The City has an
interest in protecting the public safety and in faithfully discharging its
duties under Government Code section 1031 with regard to the selection and
hiring of police officers. It is
incumbent on the City to endeavor to hire only those individuals deemed fit to
serve as peace officers, and to discharge or not hire those individuals who do
not fulfill the minimum standards of physical and psychological fitness and
moral character to serve as a peace officer.
(See, e.g., Gilbert v. City of
Sunnyvale (2005) 130 Cal.App.4th 1264, 1279 [“The government has a strong
interest ‘ “in terminating law enforcement officers who are of
questionable moral character, and in doing so in an expeditious, efficient, and
financially unburdensome manner.†’ â€]; see also Adams, supra, 235
Cal.App.3d at p. 881.)
The purposes served
by the POST guidelines and the requirements for a thorough background
investigation of officer candidates set forth in Government Code section 1031
would be sorely undermined if they were required to be tested in a
quasi-judicial hearing format. Individuals
who are asked for oftentimes sensitive and personal information in the course
of a background investigation would be less likely to come forward or provide
accurate and complete information if faced with the prospect of
cross-examination. Requiring such a
procedure would operate to reduce the information available to public entities
in selecting qualified peace officers and thwart the entire purpose of the
statutory scheme. Nothing in the
procedures outlined in Government Code section 1031 or in the statutes
authorizing POST (Pen. Code, § 13500 et seq.) even remotely suggests that
background investigations should be tested through an adversarial evidentiary
hearing procedure.
Plaintiff has not
shown he was denied a fair hearing or
denied any relief granted to him under the 2007 Judgment. Plaintiff has not established any basis
supporting entitlement to yet another hearing on his fitness, and the 2012
Judgment must therefore be reversed.
DISPOSITION
The
judgment entered January 27, 2012, is reversed and the action remanded to the
superior court for further proceedings that are consistent with this
opinion. The superior court is directed
to vacate its order issuing a writ of mandate.
The court may consider whether there is any basis, in the existing
factual record, for granting plaintiff the relief requested that the court had
not previously considered (and which is not barred by the doctrine of law of
the case); and if there is none, then the court is directed to enter a new
order denying plaintiff’s petition.
Defendants and appellants City of
Torrance, John Neu and Ross Bartlett shall recover costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
RUBIN, ACTING P. J.
FLIER, J.
name="_ftn1" title="">[1] As
to the opinion in B202117, defendants requested we take judicial notice and we
granted that request. On our own motion,
we take judicial notice of the opinion in B210529.
name="_ftn2" title="">[2] We
changed the designation of plaintiff as the “appellant†in that opinion to
“plaintiff,†to be consistent with our designation here.
