Central Valley Chap. 7 Step Foundation v. Younger

• Decision Date: 24 July 1979
• Citation: 95 Cal.App.3d 212,157 Cal.Rptr. 117
• Court: California Court of Appeals Court of Appeals
• Parties: CENTRAL VALLEY CHAPTER OF 7TH STEP FOUNDATION, INC., et al., Plaintiffs and Appellants, v. Evelle J. YOUNGER et al., Defendants and Respondents. Civ. 43712.

Page 117

157 Cal.Rptr. 117

95 Cal.App.3d 212

CENTRAL VALLEY CHAPTER OF 7TH STEP FOUNDATION, INC., et al., Plaintiffs and Appellants, v. Evelle J. YOUNGER et al., Defendants and Respondents.

Civ. 43712.

Court of Appeal, First District, Division 3, California.

July 24, 1979.

Rehearing Denied Aug. 23, 1979.

Hearing Denied Sept. 20, 1979.

Peter E. Sheehan, Henry S. Hewitt, Clifford C. Sweet, Legal Aid Society of Alameda County, Oakland (Charles C. Marson, Stanford, of counsel), for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Jean M. Bordon, Deputy Attys. Gen., San Francisco, for defendants and respondents.

Robert F. Knox, Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for American Civil Liberties Union of Northern California as amicus curiae in support of appellants.

WHITE, Presiding Justice.

Plaintiffs and appellants appeal from an order of dismissal entered after the trial court sustained the demurrer without leave to amend of defendants and respondents Evelle Younger, Attorney General of the State of California, and James R. Rasmussen, Assistant Director of the Identification and Information Branch of the California Department of Justice. ¹ The gist of appellants' legal claim against respondents is that if a public employer, authorized by law to receive criminal offender record information, but prohibited by law from considering a record of an arrest which did not result in a conviction, is sent a record containing any entries of arrest which did not result in convictions, this procedure violates state and federal statutes and constitutions. We have determined that the allegations of the complaint state a prima facie violation of the state constitutional right of privacy.

Parties

Plaintiffs and appellants herein are four individuals and a nonprofit corporation. It is alleged in the complaint and the amendment to the complaint that appellants James Doe and Ronald Roe are residents of the City of Oakland and that they are proceeding under anonymous surnames. It is further alleged that appellants Doe and Roe bring the instant action on their own behalf and on behalf of all others similarly situated. It is alleged that appellant George D. Turner is a taxpayer of the County of Alameda and the State of California. It is alleged that appellant Central Valley Chapter of 7th Step Foundation is a nonprofit corporation and one of its principal purposes and activities is to alleviate the unemployment problems of "ex-offenders." It is alleged that appellant Bart Blackburn is the executive director of appellant Central Valley Chapter of the 7th Step Foundation and is a resident of the County of Sacramento.

The complaint names as defendants, the respondents herein, James R. Rasmussen and Evelle Younger. It is alleged that Rasmussen is the Assistant Director of the Identification and Information Branch of the California Department of Justice and that Younger is the Attorney General of the State of California. The complaint also names as defendants the Alameda County Civil Service Commission, the individual members of the commission, the Director of Personnel of the County of Alameda, the Oakland Civil Service Board of Commissioners, the members of the board, and the Personnel Director of the City of Oakland. The city and county defendants are not parties to this appeal.

Allegations contained in the complaint and the amendment to the complaint

It is necessary to set out the allegations contained in the complaint and the amendment to the complaint since this is an appeal from a judgment entered after respondents' demurrer was sustained. "In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein." (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 737, 433 P.2d 732, 745; see also Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)

1. First cause of action

Appellant Doe, a black male, alleges that he has never been convicted of any criminal offense, but that he has been arrested on two occasions. Doe was first arrested for a violation of Penal Code section 211 (robbery) and was found not guilty after a court trial. Doe was subsequently arrested for an alleged violation of Penal Code section 459 (burglary) but no criminal complaint was ever filed. Doe alleges that his arrest record contains entries that he was arrested on these two occasions. ²

Appellant Doe alleges that in 1976 he applied to the county defendants for employment in a position encompassed by subdivision (a) of Labor Code section 432.7. County defendants requested respondents to forward to them Doe's arrest record and respondents complied. County defendants refused to employ Doe. Doe wishes to seek employment in the future with public employers to whom respondents will disseminate his arrest record.

Appellant Roe, a black male, alleges that he was convicted of two criminal offenses (disturbing the peace and assault with a deadly weapon) in 1969 and was convicted of a criminal offense (drunk driving) in 1976. Roe has been arrested on several occasions after which the charges were dismissed. Roe's arrest record contains ten entries. Some of the entries include the disposition of various arrests as not resulting in convictions, while other arrest entries, which arrests did not result in convictions, show no disposition.

Appellant Roe alleges that in December of 1976, he applied with the city defendants for employment in a position encompassed by subdivision (a) of Labor Code section 432.7, specifically the position of painter. City defendants requested respondents to forward to them Roe's arrest record and respondents complied. The personnel analyst for the position Roe sought then prepared a handwritten summary of all entries, including arrests not resulting in convictions, on Roe's arrest record. The analyst and the director of personnel for the public employer then discussed the entries on Roe's arrest record, including nonconviction data, and incorrectly determined from a review of his arrest record that Roe had been convicted of several offenses when in fact he had not been so convicted. Thereafter he was mailed a printed form with a box checked that "Your conviction record disqualified you" from employment. A hearing was held before the Oakland Civil Service Board at which the personnel analyst, the director of personnel and several members of the board all incorrectly concluded, after reviewing Roe's arrest record, that he had been convicted of several offenses when in fact he had not been so convicted. The board ordered that Roe's application be reconsidered by the personnel director without regard to his conviction record. Roe wishes to seek employment in the future with public employers to whom respondents will disseminate his arrest record.

Appellants allege that the misinterpretation of arrest records by the city and county defendants and other public employers is a common occurrence. In addition appellants allege that few procedural protections exist to remedy rejection from employment based upon misinterpretation or even illegal consideration of arrest records. Appellants allege that there are over 400,000 members of their class in California who face severe problems in seeking employment because of widespread discrimination against "ex-offenders and individuals with arrest records in obtaining employment." It is also alleged that the rate of arrests or detentions not resulting in convictions for black persons and for poor persons exceeds the rate of such arrests or detentions for Caucasian persons and for persons with income above the official government poverty threshold. Appellants allege that appellants Doe and Roe and members of their class as a result of the practice and the policy of respondents are (1) "subjected to damage to their reputations, stigmatized, and exposed to unnecessary and unjustified public embarrassment and humiliation"; and (2) "subjected to, on some occasions, rejection from employment due to the incorrect interpretation of their arrest records by the City and County defendants and other public employers." Finally, appellants allege that "only a slight burden" would be imposed upon respondents if respondents were to delete information concerning arrests and detentions which did not result in convictions from arrest records prior to disseminating the arrest records to the city and county defendants and other public employers.

2. Second cause of action

In the second cause of action appellant Turner alleges that he is a resident and a taxpayer of the County of Alameda and the State of California. The second cause of action incorporates by reference the allegations of the first cause of action.

Appellant Turner alleges that respondents and their agents have either permitted or authorized the reimbursement or expenditure of public funds in enforcing and applying their alleged policy and practice of forwarding to the public employers encompassed by Penal Code section 11105, subdivisions (b)(10) and (b)(12) arrest records requested on applicants or employees for positions encompassed by Labor Code section 432.7, subdivision (a) without first deleting entries concerning arrests and detentions not resulting in a conviction, and without refusing to forward a record wherein all the entries pertain to arrests or detentions not resulting in convictions. Appellant Turner alleges that this policy and practice is evidenced by the allegations of a...