Doe v. Regents of the Univ. of Cal.

• Decision Date: 27 October 2022
• Docket Number: C094414
• Parties: JOHN DOE, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

JOHN DOE, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.

C094414

California Court of Appeals, Third District, Yolo

October 27, 2022

NOT TO BE PUBLISHED

Super Ct. No. CV2016765

RENNER, J.

This case arises out of various policies adopted by the University of California system and the University of California, Davis (UC Davis) that were used by UC Davis to impose an interim suspension and then, based on separate but overlapping charges that were not all fully adjudicated, multiple final disciplinary sanctions and conditions on former law student John Doe.^[1] In particular, John was suspended for a total of two years and his final suspension apparently became a withdrawal from the UC Davis School of Law when he did not apply for readmission under the imposed conditions within the required time. John appeals from the superior court's denial of his writ petition. John sought to set aside his interim suspension and all of the disciplinary sanctions and conditions as well as his underlying adjudication of guilt for: (1) dating violence under applicable sexual harassment and sexual violence policies; and (2) physical abuse and unlawful use of controlled substances under the policy on student conduct and discipline that applies to all students in the University of California system (UC Conduct &Discipline Policy).

In this appeal, John contends UC Davis failed to provide a fair process. We affirm John's interim suspension, but agree UC Davis failed to provide a fair process with respect to his final disciplinary sanctions and conditions as well as the hearing officer's decision that preceded them. Specifically, and as explained more fully below, we conclude that UC Davis imposed punishment, in part, for charges that never proceeded to hearing and utilized a private attorney as a hearing officer, which was prohibited by the relevant rules. Thus, the hearing officer's decision and the disciplinary sanctions and conditions issued by UC Davis's Director of the Office of Student Support and Judicial Affairs (Student Judicial Affairs) should be set aside. We will order the superior court to vacate its judgment denying John's petition for writ of administrative mandamus and to enter a new judgment granting the petition in this regard.

I. BACKGROUND

A. Initiation of Title IX Investigation

On July 28, 2015, the Title IX compliance officer for UC Davis sent John a letter notifying him of a complaint that he "engaged in conduct that may have violated the University's sexual harassment and sexual violence policy. Specifically, it [wa]s alleged that [John] subjected professional student [Jane Doe] to the following behavior during [his] relationship with her during the 2014-[20]15 academic year: [he] threatened her, verbally abused her and forced her to be a passenger in [his] car while [he] w[as] driving under the influence of drugs or alcohol." The letter further stated: "This allegation will be investigated under the University's sexual harassment and sexual violence policy, which is available at: http://manuals.ucdavis.edu/PPM/400/400-20.pdf."^[2]

The letter stated Bruce Hupe from the Office of the Provost and Executive Vice Chancellor was assigned to investigate the allegations. The linked sexual harassment and sexual violence policy provided the investigator would interview witnesses and prepare a report with findings of fact and a determination as to whether "University policy" had been violated. The policy also required the Title IX officer to submit the investigator's report "to the appropriate University official with authority to implement the actions necessary to resolve the complaint. The report may be used as evidence in other procedures, such as . . . disciplinary actions." The letter instructed John to contact Donald Dudley, the director of Student Judicial Affairs, "to discuss the student conduct process."

On July 30, 2015, Dudley informed John that he had assigned Hupe, "who [wa]s conducting the investigation into the charge of dating violence[,] to also investigate charges of illegal drug use[,] including, but not limited to[,] methamphetamine and driving under the influence of drugs and/or alcohol."

On August 3, 2015, a judicial officer for Student Judicial Affairs instructed John not to have any further contact with Jane. John was also provided a description of the process after referral to Student Judicial Affairs for alleged sexual assault, stalking, domestic violence, or dating violence. This document explained that if the investigation report concluded the allegations were substantiated, Student Judicial Affairs would schedule a formal hearing. If the hearing officer then found John had violated university policy, the hearing officer would recommend disciplinary sanctions and Student Judicial Affairs would issue a decision. As we will set forth, the hearing officer never addressed whether John violated any university policy with respect to dating violence.

B. Interim Suspension

On August 30, 2015, Jane emailed Dudley to report John had violated the no contact order in the previous two weeks.

On September 7, 2015, Dudley notified John that he had been placed on interim suspension from UC Davis, "[b]ased on information [he had] recently received." The notice stated: "Recently, the University has been informed that you may be engaging in further behavior that threatens the health and safety of [Jane] and others. Such behavior includes, but is not limited to, one or more of the following acts: following this individual with your vehicle, breaking into and rummaging through her vehicle, and stealing this person's house keys. Such behavior, if true, violates Section 102.08 and 102.10 of the [UC Conduct and Discipline Policy].... [¶] . . . [¶] Based on this reported information, I find there is reasonable cause to believe that your continued presence on campus represents a threat to the health and safety of the reported victim and to the campus community at large as well as a disruption to the orderly operation of the campus."^[3] John and Dudley met the following day, September 8, 2015. On September 12, Dudley notified John that he believed the interim suspension should remain in place: "While you were not consistently in Davis between August 16 and September 3, your response left open sufficient time to engage in the activities we discussed."

C. Allegations and Investigation

On October 2, 2015, John was sent a list of dating violence allegations against him that consisted of various factual allegations, such as that, on April 1, 2015, John told Jane he would punch her in the face, beat her up, and kill her if she did not give him back his car keys. Further, it was alleged that John forced Jane to be a passenger in his car while he was under the influence of drugs or alcohol on four separate occasions. The allegations that formed the basis for John's interim suspension were also on this list.

On November 13, 2015, the Title IX compliance officer sent John a letter stating: "The University has completed its investigation into the report that you engaged in behavior toward professional student [Jane] that constituted dating violence under University Policy....[¶] Mr. Hupe determined that a preponderance of the evidence supports the finding that you violated the applicable University sexual harassment and sexual violence policy by threatening [Jane] with physical harm on April 1, 2015[,] as well as driving under the influence of alcohol with her as your passenger on multiple occasions. [¶] I have accepted Mr. Hupe's conclusions and consider this matter closed. I am referring these findings to [Student Judicial Affairs] for further handling consistent with its discipline process." Additionally, the letter explained Dudley would communicate with John regarding Student Judicial Affair's "review process" and "the outcome of the investigation into allegations charged by [Dudley] under the Student Code of Conduct."

D. Notice of Hearing

On November 23, 2015, Dudley sent John a notice of a formal hearing to resolve his referral to Student Judicial Affairs. The notice stated, in part:

"The University alleges that you engaged in the following conduct:

"1. Threatening another student, [Jane], with physical harm on or about April 1, 2015.

"2. Driving under the influence of alcohol on multiple occasions while [Jane] was your passenger, thereby threatening the health and safety of the Complainant.

"3. Using illegal controlled substances.

"4. Physically abusing [Jane] on multiple occasions including but not limited to March 5, April 1, May 17 and June 19, 2015.

"If established, such behavior would violate Sections 102.08 and 102.17 of the [UC Conduct and Discipline Policy].

"• Section 102.08 prohibits 'Physical abuse including but not limited to sexual assault, sex offenses, and other physical assault; threats of violence; or other conduct that threatens the health or safety of any person.'

"• Section 102.17 prohibits the unlawful manufacture, distribution, dispensing, possession, use, or sale of, or the attempted manufacture, distribution, dispensing, or sale of controlled substances, identified in federal and state law or regulations."^[4]

The notice made no reference to any sexual harassment and dating violence policies. It did identify various witnesses for the hearing, including Hupe, who would testify to his investigation and report.

On December 6, 2015, a week before the hearing, John was notified that "an attorney with the law firm of Vandermyden Maddux Law Corporation w[ould] serve as the hearing officer. As an exception to policy and to provide an impartial hearing, the University [] decided to use a hearing officer outside of the...