Garnel v. Bunzel

• Decision Date: 11 April 1977
• Citation: 137 Cal.Rptr. 627,68 Cal.App.3d 999
• Court: California Court of Appeals Court of Appeals
• Parties: Donald GARNEL et al., Plaintiffs and Appellants, v. John H. BUNZEL et al., Defendants and Respondents. Civ. 39603.

Page 627

137 Cal.Rptr. 627

68 Cal.App.3d 999

Donald GARNEL et al., Plaintiffs and Appellants, v. John H. BUNZEL et al., Defendants and Respondents.

Civ. 39603.

Court of Appeal, First District, Division 4, California.

April 11, 1977.

Sheldon L. Greene, Greene, Kelley & Tobriner, San Francisco, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., State of Cal., Richard L. Mayers, Deputy Atty. Gen., San Francisco, for defendants and respondents.

CHRISTIAN, Associate Justice.

Five members of the economics faculty of San Jose State University sued the university president, and other officials, seeking a writ of mandate and injunctive and declaratory relief to overturn a decision of the president excluding the economics department from participation in certain consultative procedures relating to academic matters. The trial court sustained demurrers to the first and second causes of action; a bench trial on the third cause of action resulted in a judgment for the defendants; the plaintiffs appealed.

In April of 1974, the university promotions committee of San Jose State University recommended to the president of the university that the department of economics should be excluded from participation in personnel review functions; apparently the recommendation was based on a determination that department members had improperly blocked the promotion of a colleague. Upon receiving this recommendation, the administration requested the social sciences policy committee, composed of department chairmen, to form a committee of inquiry to investigate whether the economics department was in fact unable to conduct properly its self-governance functions. Appellants received a copy of the memorandum from Academic Vice-President Hobart Burns, asking the school of social sciences review committee (hereinafter the 'factfinding committee') to perform the investigation. Pursuant to the university's rules of confidentiality, the factfinding committee met in closed session. It heard witnesses and reviewed evidence. The committee also invited appellants to submit written statements; each of the appellants did submit a written statement.

The factfinding committee prepared a written report summarizing the factual basis for its recommendation. The recommendation was that the department of economics be 'disenfranchised' and that the customary faculty functions with respect to academic governance be assigned for an indefinite period to an appointed executive committee.

In light of the recommendations of both the university policy committee and the school of social sciences' factfinding committee, as well as the history of difficulties within the department, the president of the university placed the department of economics 'in receivership,' indefinitely suspending ('for more than a year or two') the normal participation of the department of economics' faculty in all personnel and policy activities of the department. The president directed that the customary functions of the departmental faculty be performed by an executive committee composed of six senior faculty members from other departments, working under the chairmanship of the chairman of the economics department.

The academic senate by resolution requested reinstatement of the consultative right of the department of economics and criticized the president's method of action. The president replied with a lengthy explanation which, together with the school of social sciences' factfinding committee report, was distributed to the entire faculty. The so-called 'disenfrancisement' attracted attention in the campus newspaper, was discussed in an editorial in the Wall Street Journal, and was mentioned in an article in the business section of the New York Times.

Following the disenfranchisement, appellants filed individual but essentially identical grievances under procedures which had been established by the chancellor of the state university system for handling individual grievances of faculty members. In one case, the faculty grievance committee held that the complainant was seeking redress for alleged wrongs against the entire academic department and not for individual wrongs and that, therefore, such a claim did not constitute a proper subject for grievance hearings. In other hearings, the faculty grievance committee found that the president had acted properly and prudently, and the grievances were denied. The present litigation followed.

The appeal involves two contentions: (1) that the president's action in placing the department of economics in receivership seriously damaged appellants' professional reputations, depriving them of a 'liberty' interest without due process of law, and (2) that appellants' consultative rights constituted a 'property' interest and that they were deprived of that interest without due process of law.

The protections of due process apply only to interests coming within the 'property' and 'liberty' rights as those terms are used in the Fourteenth Amendment. (Perry v. Sindermann (1972) 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Abeyta v. Town of Taos (10th Cir. 1974) 499 F.2d 323, 327.) In Board of Regents v. Roth, supra, 408 U.S. at page 573, 92 S.Ct. 2701, the court stated that where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, his interest in liberty is implicated and due process protections come into play. (See Wisconsin v. Constantineau (1971) 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515.)

The evidence in the present case, however, well supports the trial court's determination that appellants failed to bring themselves within the criteria established by the Roth court for showing a deprivation of 'liberty.' The evidence did not show serious damages to reputation or foreclosure of opportunities amounting to a deprivation of liberty. (See Schwartz v. Thompson (2d Cir. 1974) 497 F.2d 430, 432; Blair v. Board of Reg. of State Univ. & Com. Col. Sys., Tenn. (6th Cir. 1974) 496 F.2d 322, 324; Adams v. Walker (7th Cir. 1974) 492 F.2d 1003, 1008--1009; Jablon v. Trustees of California State Colleges (9th Cir. 1973) 482 F.2d 997, 999--1000, cert. den. 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116; Olson v. Trustees of California State Universities (C.D.Cal.1972) 351 F.Supp. 430, 432.) The economics department had 22 full-time faculty members at the time of the president's action. The president's letter suspending the consultative rights of the department of economics and placing the department in receivership did not point to or single out any individual faculty member. As the trial court indicated in its memorandum of decision, 'the action indicated that the Department, taken as a whole, and as an entity was unable to govern itself; that some of the members of the Department were unable to get along with one another to the detriment of the teaching program. Although this action did indicate that the conduct of some of the professors was less than exemplary, the said action cannot be said with any degree of certainty to injure the honor, good name or reputation of all of the professors, or any one professor specifically.'

Additionally, the evidence introduced at trial failed to establish that appellants had suffered any loss of reputation or good name. Dr. Sasseen, associate vice-president and dean of the faculty at San Jose State University, reviewed a survey of the professional activities of the faculty of the economics department since September 1974, and testified that 'the professional activity of the faculty in that department proceeds at pace and there is no evidence of harm to it in terms of lessening of professional activity.' Dr. Sasseen stated that many of the activities engaged in by members of the department were the result of invitations to them to participate and other activities were initiated as a result of a member of the department offering a professional paper. Student enrollment in the department of economics continued to be strong. In fact, from the spring of 1973 through the spring of 1975, enrollment in the department of economics showed a steady and continued growth, whereas enrollment in other departments was declining. There was evidence that professional activities such as the ability to teach and to advise students, to engage in scholarly activity and research, to write articles for publication and read professional papers, and to be members of professional associations, have a far greater impact on a professor's professional reputation than his entitlement to be consulted on personnel and policy decisions of the department. Appellants' teaching responsibilities or other duties were not affected by the disenfranchisement; they were not censured by any of the professional associations to which they belonged. Appellant Primack was continuing to co-author a book with another member of the faculty of the department of economics after the disenfranchisement. Appellant Mings was working on a proposal for an experimental course and was invited to present the course to the executive committee.

Although there was evidence that the disenfranchisement of the department had received some newspaper publicity, there was no evidence that appellants' reputations had been damaged by the articles. In fact, Professor Moses Abramovitz, professor of economics at nearby Stanford University, knew generally that the department of economics at San Jose State University had been placed in receivership, but knew little more about the matter and did not know the names of the individual appellants involved in this action. There is nothing in the president's action which imposed a stigma or 'badge of infamy' upon appellants. Appellants have failed to establish that they have been stigmatized in a manner which limits employment opportunities, or that they have been individually damaged in...