Donovan v. Reinbold

• Decision Date: 27 November 1970
• Docket Number: No. 23622,23671.,23622
• Citation: 433 F.2d 738
• Parties: Michael Arthur DONOVAN, Plaintiff-Appellee, v. Earl REINBOLD and Harley Askew, Defendants-Appellants. Michael Arthur DONOVAN, Plaintiff-Appellant, v. Earl REINBOLD and Harley Askew et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

433 F.2d 738 (1970)

Michael Arthur DONOVAN, Plaintiff-Appellee, v. Earl REINBOLD and Harley Askew, Defendants-Appellants.

Michael Arthur DONOVAN, Plaintiff-Appellant, v. Earl REINBOLD and Harley Askew et al., Defendants-Appellees.

Nos. 23622, 23671.

United States Court of Appeals, Ninth Circuit.

October 5, 1970.

As Modified on Denial of Rehearing November 27, 1970.

COPYRIGHT MATERIAL OMITTED

Joseph A. Wheelock, Jr. (argued), Max L. Gillam, of Latham & Watkins, Los Angeles, Cal., for Earl Reinbold and Harvey Askew et al.

L. A. Newlan, Jr. (argued) of Newlan, Shapiro & Bailey, Los Angeles, Cal., for Michael Arthur Donovan.

Before KOELSCH and HUFSTEDLER, Circuit Judges, and THOMPSON,^* District Judge.

HUFSTEDLER, Circuit Judge:

Two municipal police officers, Chief Earl Reinbold and Lt. Harley L. Askew of the Santa Monica Police Department, appeal from a judgment awarding $5000 damages to plaintiff Donovan on his civil rights complaint against them. (42 U.S.C. § 1983.) The complaint, inter alia, charged that Reinbold and Askew, acting under color of state law, caused Donovan's loss of public employment as a lifeguard in retaliation for Donovan's exercising his First Amendment rights to express himself by authoring newspaper articles concerning activities on the Santa Monica beaches.¹

Donovan cross-appeals from a judgment dismissing the same complaint against two other defendants, Robert G. Cockins and Robert D. Ogle, who were, respectively, City Attorney and Assistant City Attorney of Santa Monica. His complaint charged that Cockins and Ogle contributed to his loss of employment by advising Reinbold and Askew that a decision of the City's personnel board, holding Donovan's discharge unjustified, was not binding and further charging that that advice was motivated by Cockins' and Ogle's desire to punish him for writing the newspaper articles. The district court held, as a matter of law, that Cockins and Ogle were immune from liability under 42 U.S.C. § 1983.²

I.

Askew and Reinbold contend that: (1) Donovan's action was barred by limitations, (2) the evidence was insufficient to support the district court's finding that Donovan was discharged and not rehired because of his newspaper writing, (3) even if his writing were the cause of his loss of employment, at least part of the writings were outside constitutional protection and provided justification for a refusal to reinstate Donovan, (4) both defendants were immune from liability, and (5) the finding of damages was clearly erroneous.

Defendant police officers argue that the district court erred in holding that limitations did not bar Donovan's action against them in that: (1) the applicable limitations period is set by the California Tort Claims Act (Cal.Gov't Code § 810 et seq.), including the claims procedures explicated in sections 905, 911.2, 945.4, and 945.6 of the Government Code, with which Donovan did not comply; and, alternatively, (2) at least part of Donovan's claim was barred by the provisions of section 338(1) of the California Code of Civil Procedure.

In Smith v. Cremins (9th Cir. 1962) 308 F.2d 187, we held that the limitations statute applicable to a Civil Rights Act case arising in California and there being tried was section 338(1) of the California Code of Civil Procedure, limiting to three years the commencement of an action "upon a liability created by statute." Askew and Reinbold ask us to abandon Smith, because after that case was decided, California enacted the Tort Claims Act, the claims procedure and limitations provisions of which, they argue, should control. We reject their argument, disapprove Williams v. Townsend, 283 F.Supp. 580 (C. D.Cal.1968) sustaining their position, and adhere to Smith. (Accord, Willis v. Reddin (9th Cir. 1969) 418 F.2d 702.)

The California Tort Claims Act was the legislative response to the decision of the California Supreme Court in Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, abrogating common law governmental immunity from tort liability. That Act abolished all court declared and common law based forms of tort liability of public entities in the state, with some exceptions, and substituted therefor a statutory system of liability and immunity, together with a procedural scheme to enforce the system. The claims and limitations provisions are an integral part of that statutory scheme.

Reinbold and Askew argue that we should incorporate into the Civil Rights Act the limitations and claim provisions of the Tort Claims Act, instead of the limitation prescribed by section 338(1), because the causes of action to which the Tort Claims Act applies provide a closer analogy to a claim for relief under the Civil Rights Act than do the causes of action to which section 338(1) applies. The assumed analogy between the federal right created by the Civil Rights Act and the state created remedies and immunities found in the Tort Claims Act is ephemeral. As Mr. Justice Harlan observed concurring in Monroe v. Pape (1961) 365 U.S. 167, 196, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 "a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right."

Congress has not evinced any intention to defer to the states the definition of the federal right created in section 1983, or to adopt the states' remedies or procedures for the vindication of that right. It has never indicated an intent to engraft onto the federal right state concepts of sovereign immunity or of state susceptibility to suit, which are the concepts that are the roots of the California Tort Claims Act. Indeed, the history of section 1983, summarized in Monroe v. Pape, supra, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, vividly demonstrates that state concepts of sovereign immunity were alien to the purposes to be served by the Civil Rights Act. (See also, Beauregard v. Wingard (S.D.Cal. 1964) 230 F.Supp. 167, 173.) An incorporation of such state created policies "would practically constitute a judicial repeal of the Civil Rights Act." (Hoffman v. Halden (9th Cir. 1959) 268 F.2d 280, 300; Jobson v. Henne (2d Cir. 1966) 355 F.2d 129.)

Accordingly, we reaffirm our decision in Smith, holding that the applicable limitations statute is California Code of Civil Procedure section 338(1).

We now turn to defendants' contention that at least part of plaintiff's action is barred even by section 338(1). Donovan brought his action on March 16, 1967. He was discharged on April 6, 1963. Any action Donovan may have had arising from his dismissal is barred by the three-year statute of limitations. But Donovan won an order for reinstatement from the City of Santa Monica Personnel Board on April 15, 1964, and was refused reinstatement the next day. The district court decided that an action based on that refusal to reinstate was a cause of action independent of his claim based on his original discharge, and that the former was not barred by limitations. We agree with the district court. (Cf. Walsh v. Chicago Bridge & Iron Co. (N.D.Ill.1949) 90 F.Supp. 322.)

On the merits, Askew and Reinbold strenuously argue that the fourth in the series of newspaper articles written by Donovan exceeded the bounds of constitutional protection afforded a public employee, as those lines were suggested in Pickering v. Board of Education (1968) 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811. Pickering was a teacher who was fired for writing and publishing in a newspaper a letter criticizing the Board of Education and the school superintendent. The Court held that the First Amendment protects public employees from loss of employment as a result of their comment upon matters of public interest. It also indicated that that protection might not be as extensive for public employees as it is for the general citizenry under New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. A public employee's expression of false statements might be beyond First Amendment protection if the particular expression inhibits the efficient discharge of the employee's duties, or if the employee's position lends substantially greater credence to the expression than would be accorded to that of a member of the general public.

The fourth article was somewhat less innocuous than its predecessors. In it, Donovan implied that the police were arresting and firing lifeguards on trumped-up charges and that "the guard service is being used as a scapegoat to place other city departments in a better light; the pot calling the kettle black, so to speak." Assuming, arguendo, that the statements were both false and libelous, the article nevertheless fell within the protection of the First Amendment.

Pickering makes clear that it is the nature of the employment that defines the extent to which the otherwise protected publications of employees may be constrained. The less important to the job is personal loyalty or the confidence of superiors, the weaker is the argument that special restrictions upon criticisms are proper. (391 U.S. at 570, 88 S.Ct. 1731, 20 L.Ed.2d 811.) The less likely it is that the public will attach special importance to the statements made by someone in a particular position, the weaker is the argument that the state needs special restrictions on false or erroneous statements made by someone in that position to prevent substantial deception of the public. (391 U.S. at 574, 88 S.Ct. 1731, 20 L.Ed.2d 811.)

Nothing about Donovan's job as a lifeguard brings him within the exception suggested in Pickering. We conclude that the fourth article was constitutionally protected and that it could not be used to justify refusal to reinstate him.

Askew's and Reinbold's contention that their position as police officers rendered them immune from liability under ...