Hollon v. Pierce

• Court: California Court of Appeals
• Citation: 64 Cal.Rptr. 808,257 Cal.App.2d 468
• Decision Date: 26 December 1967
• Parties: , 1 Empl. Prac. Dec. P 9849 Olen HOLLON, Petitioner and Appellant, v. Kelly V. PIERCE, Rudy V. Balma, William Beaty, Eleanor Mazzini, Lawrence Carr, Trustees of Shasta Union High School District, Respondents. Civ. 11397.

Page 808

64 Cal.Rptr. 808

257 Cal.App.2d 468, 1 Empl. Prac. Dec. P 9849

Olen HOLLON, Petitioner and Appellant, v. Kelly V. PIERCE, Rudy V. Balma, William Beaty, Eleanor Mazzini, Lawrence Carr, Trustees of Shasta Union High School District, Respondents.

Civ. 11397.

Court of Appeal, Third District, California.

Dec. 26, 1967.

Rehearing Denied Jan. 23, 1968.

Hearing Denied Feb. 21, 1968.

Marshall W. Krause, Staff Counsel, American Civil Liberties Union of No. Cal., San Francisco, Leep, Saunders & Halpin, Redding, and Robert H. Laws, Jr., San Francisco, for petitioner appellant.

Jere E. Huryel, Jr., Robert A. Rehberg, County Counsel, Redding, for respondents.

FRIEDMAN, Associate Justice.

Petitioner Olen Hollon sought mandate in the trial court to compel reinstatement by his employer, Shasta Union High School District, alleging that the district had discharged him because of his religious beliefs. After a hearing in which evidence was taken and findings were made, the trial court denied the petition. Hollon appeals.

Hollon had been employed by the school district since 1960, first as a bus driver, then as transportation superintendent. In the latter capacity he supervised the operation of 26 school buses, doing some relief driving himself and transporting students to special events. Performance reports rated him as 'capable, efficient, reliable, a good leader.' He was employed on an annual contract, renewable July 1st of each year.

About June 19, 1964, a printed religious tract entitled The 'Upper Room' of Babylon came to the attention of the school district authorities. Hollon's brother-in-law was the author of the tract, but Hollon's name was printed on the front cover, as though he were one of the two authors. Description in limited space of the tone and content of The 'Upper Room' of Babylon is difficult. In general, the theme is the corruption of modern society and its imminent destruction. There are many numerological references. The elect, that is, those not infected by the gereral corruption, are referred to as 'END TIME PEOPLE' and '#7 MINDS.' The corrupt are designated as '#6' or '#666 minds.' ¹ There are violent denunciations of various Christian churches and denominations, also condemnations of named public officials and candidates for public office. Passages in the minor prophets and Book of Revelation are interpreted in highly colored, eschatological terms. Some sample passages are reproduced in the margin. ²

After examining the booklet, the superintendent and the assistant superintendent of the school district interviewed Hollon, its apparent coauthor, questioning his emotional stability and his fitness to drive a school bus. Hollon stated that the book represented his beliefs, that he had helped with the preparation of it, that he was now being crucified and was ready to die for the cause. They requested that he submit to an evaluation by a clinical psychologist in the district's employ. Through his attorney, Hollon refused examination by the district's own employee, but offered to submit to an examination by a private psychiatrist at his own expense. The school district psychologist was asked to examine The 'Upper Room' of Babylon. He informed the superintendent that the book exhibited paranoiac tendencies which called for further investigation; that a diagnosis on the basis of the book alone was not possible. The superintendent notified Hollon that the question of renewal of his contract for the year commencing July 1, 1964, would be considered at a meeting of the district trustees on June 23, 1964, and that he might appear.

On the advice of his attorney Hollon did not attend the meeting. The school board held no formal hearing, but considered the question of contract renewal in executive session. ³ The district superintendent and assistant superintendent, together with the board members, examined a copy of The 'Upper Room' of Babylon. Because Hollon's name was one of two names printed on the front cover, they believed him to be a coauthor. Excerpts from the book were read. According to the later testimony of one of the board members, the trustees took note of the virulent attacks on society and on named public officials, its expressions of violence and hatred, its threats of widespread death and destruction. Hollon's personnel file was reviewed. It mentioned earlier incidents in which Hollon had indulged in emotional outbursts. An administrative investigation of a school bus accident in 1963 had resulted in a finding of his contributory negligence, and this finding aroused an emotional outburst. At another time, after the discharge of one of the district bus drivers, Hollon had become quite emotional, almost incoherent, and had offered to resign. He had also 'flared up' over the rerouting of a bus. Although these incidents had not occasioned much concern at the time, Hollon's apparent coauthorship of The 'Upper Room' of Babylon now caused the trustees to view them as symptoms of emotional instability. They concluded that they did not wish to entrust the safety of school children to Hollon.

Following the executive session, the board adopted a resolution withholding renewal of Hollon's contract for the forthcoming school year but offering to review any psychiatric examination he might obtain. Hollon then filed a complaint with the State Fair Employment Practice Commission (Lab.Code, § 1414), which conducted an investigation. He submitted to examination by two psychiatrists, whose reports were furnished to the commission and by the commission to the school district. Neither of these psychiatrists found him to be maladjusted, disoriented, psychotic or dangerous.

The pyschiatric reports were considered by the school board at its meeting of July 28, 1964. At this second meeting the trustees were aware that Hollon had not actually written any of The 'Upper Room' of Babylon, but that he was responsible for its publication and distribution. Also in the board's hands was a small classified newspaper advertisement in which he had offered The 'Upper Room' of Babylon for sale to 'high school children' at a price of $5. The board declined to reconsider its action.

After some correspondence with the school district, including a recommendation that the district reemploy Hollon, the State Fair Employment Practice Commission appears to have dropped the matter. A description of the proceeding's status is described in a commission document dated January 5, 1965, as follows: 'Case is being held open pending civil action.' Actually, no civil action had been filed. The present action was commenced in May 1965. Relative to the proceeding before the State Fair Employment Practice Commission, the petition alleges that in November 1964 a letter from the commission had informed Hollon: 'Your file is now in the hands of our attorney for recommendation as to the next step. I will be in touch with you as things develop.' The petition further alleges that in March 1965 Hollon learned that the State Fair Employment Practice Commission contemplated no further action. This allegation is not controverted.

In the superior court hearing the district superintendent, the assistant superintendent and one of the trustees testified that the contents of The 'Upper Room' of Babylon led them to believe that Hollon was emotionally unstable and not to be trusted with the safety of school children. Hollon testified that he was not actually an author of The 'Upper Room' of Babylon; that his printed name on the pamphlet cover did signify his belief in the contents; that it did represent a 'basic picture' of his own faith. The trial court found that the school district 'had reasonable cause to believe, and honestly did believe, that (Hollon) might be mentally unbalanced;' that its decision not to reemploy him was based solely upon this belief.

At the request of this court counsel have briefed the question of exhaustion of administrative remedies. Our concern was aroused because Hollon had filed a complaint with the State Fair Employment Practice Commission, which initiated but did not complete proceedings. Where an administrative remedy is provided by statute, relief must be sought from the administrative body and the remedy exhausted before the courts will act; a court violating the rule acts in excess of jurisdiction. (City of Susanville v. Lee C. Hess Co., 45 Cal.2d 684, 689, 290 P.2d 520; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292, 109 P.2d 942, 132 A.L.R. 715.)

A statute investing a public agency with continuing supervisory or investigatory power affords an 'administrative remedy' when it establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties. (Rosenfield v. Malcolm, 65 Cal.2d 559, 565--566, 55 Cal.Rptr. 505, 421 P.2d 697.) The California Fair Employment Practice Act (Lab.Code, §§ 1410--1432) establishes such machinery. The term 'employer' includes public agencies of the state. (Ibid., § 1413.) The act empowers the State Fair Employment Practice Commission to receive, investigate and pass upon complaints alleging discrimination in employment because of religious creed. (§ 1419.) It declares that discharge of an employee because of religion is an unlawful employment practice. (§ 1420.) When a complaint alleging an unlawful employment practice is filed with the commission, it is directed to make an investigation, to attempt correction by conciliation and, if unsuccessful, to initiate a formal hearing. (§§ 1421, 1427.) The commission's final orders are subject to judicial review. (§ 1428.) The commission may seek injunctive relief to restrain violation of a final order. (§ 1429.)

Hollon had filed an administrative complaint alleging facts which, if true, constituted an unfair employment practice. At that point the commission was directed by law to conduct an investigation. (Lab.Code, §§ 1421, 1423.) It had, so to speak, jurisdiction to...