Holmes v. California Nat. Guard

• Decision Date: 29 June 2001
• Docket Number: No. A083451.,No. A085180.,A083451.,A085180.
• Citation: 90 Cal.App.4th 297,109 Cal.Rptr.2d 154
• Court: California Court of Appeals Court of Appeals
• Parties: Andrew HOLMES et al., Plaintiffs and Respondents, v. CALIFORNIA NATIONAL GUARD et al., Defendants and Appellants. Andrew Holmes, Plaintiff and Appellant, v. California National Guard et al., Defendants and Respondents.

109 Cal.Rptr.2d 154

90 Cal.App.4th 297

Andrew HOLMES et al., Plaintiffs and Respondents, v. CALIFORNIA NATIONAL GUARD et al., Defendants and Appellants.

Andrew Holmes, Plaintiff and Appellant, v. California National Guard et al., Defendants and Respondents.

No. A083451.

No. A085180.

Court of Appeal, First District, Division 3.

June 29, 2001.

Certified for Partial Publication.^*

Review Denied Oct. 17, 2001.

Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Todd E. Thompson, San Francisco, Anne-Marie Eileraas, Elizabeth

W. Scott, Sherri A. Sokeland and Kimberly A. Bliss, San Francisco, for Plaintiffs and Respondents in Case No. A083451 and for Plaintiff and Appellant in Case No. A085180.

Munger, Tolles & Olson, Jerome C. Roth, San Francisco, Hoojoon Hwang and John L. Flynn, Santa Ana, for Bay Area Lawyers for Individual Freedom as Amicus Curiae on behalf of Plaintiffs and Respondents in Case No. A083451.

Daniel E. Lungren and Bill Lockyer, Attorneys General, Martin H. Milas and David S. Chaney, Senior Assistant Attorneys General, Damon M. Connolly and Miguel A. Neri, Supervising Deputy Attorneys General, Kim M. Settles and Denis S. Kenny, Deputy Attorneys General, for Defendants and Appellants in Case No. A083451 and for Defendants and Respondents in Case No. A085180.

McGUINESS, P.J.

These consolidated appeals arise from a potential conflict between the equal protection and free speech guarantees of the California Constitution and the constraints imposed by preemptive federal law with respect to the policy based on sexual orientation known as "Don't Ask, Don't Tell" (the Policy), as applied to individuals on or eligible for state active duty in the California National Guard. The trial court below declared California Army National Guard Regulation No. 600-1, paragraph 6(d) (hereinafter the Regulation) facially unconstitutional under the California Constitution insofar as it applies the Policy to individuals on state active duty employment in the California National Guard, or bars them from obtaining such state active duty employment if they have been discharged, separated or released from federal service under the Policy. The California National Guard, the State of California, Major General Tandy K. Bozeman and California Governor Gray Davis (collectively defendants) appeal from the judgment entered in favor of First Lieutenant Andrew Holmes (plaintiff), individually and on behalf of a class of persons similarly situated. Plaintiff in turn has appealed from the trial court's denial of his motion for attorney fees.

Contrary to the position of defendants, we hold that plaintiff does in fact have standing to challenge the constitutionality of the subject Regulation. Contrary to plaintiff, however, we agree with the defendants that the trial court's rulings potentially conflict with preemptive federal law upholding the constitutionality of the Policy under the United States Constitution with respect to individuals serving in active duty positions in the National Guard for which federal recognition is required. In order to avoid possible encroachment on areas specifically preempted by federal law, we therefore remand the cause to the trial court with orders to modify its declaratory judgment so as to clearly limit the scope of its coverage to individuals seeking state active duty employment in positions not requiring federal recognition. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff enlisted in the California National Guard in 1986. He received a California state officer's commission on May 21, 1988, at which point he incurred an eight-year period of obligated state service. On March 28, 1990, he was sworn in and received a commission as an officer of the California National Guard. He thereafter received temporary federal recognition and was sworn in as an officer of the United States Army National Guard pursuant to title 32 of the United States Code section 308 (hereafter U.S.C.).¹ As a National Guard officer in a federally recognized unit, plaintiff was required by 32 U.S.C. section 502(a) to assemble for drill and instruction 48 times each year, and participate in training at encampments, maneuvers, outdoor target practice and other exercises at least 15 days each year. As a member of a federally recognized United States Army National Guard unit, he received a federal paycheck and was subject to being called into the service of the United States.²

During the course of his service, plaintiff earned many honors, including promotion to first lieutenant and combat military police platoon leader. He received the Army Achievement Medal, the Army Reserve Components Achievement Medal and the National Defense Service Ribbon for superior performance while deployed to Germany in support of Operation Desert Shield and Operation Desert Storm. His California National Guard performance rating for the years 1993 to 1994 stated that plaintiff "is a dedicated officer who supports the commander in every respect," "is loyal to his troops in every respect," and "has the potential to become a fine staff officer." In addition, the performance review stated that plaintiffs "strong leadership style was exemplified by the outstanding performance of his platoon during annual training," which "was a shining example of cohesion."

Beginning in December 1991, plaintiff served in full-time active duty status commanding a California National Guard task force unit engaged in counternarcotics efforts requiring federal recognition. According to plaintiffs declaration, at that time he was receiving "pressure" from his commanding officer "to communicate to members of my unit that I was not homosexual." On or about June 3, 1993, plaintiff voluntarily sent a written memorandum to his commanding officer at the California National Guard, in which he stated: "[A]s a matter of conscience, honesty and pride, I am compelled to inform you that I am gay." Based on this memorandum, the commanding officer initiated a request to withdraw plaintiffs federal recognition as an officer in the United States Army National Guard.

On June 15, 1993, plaintiff received a memorandum informing him that his commanding officer was initiating a request to withdraw plaintiffs federal recognition because of his written statement acknowledging his homosexuality. On May 21, 1994, in accordance with the Policy, a federal recognition withdrawal board (the Board) was convened by the Sixth United States Army Commander, and commenced proceedings to determine if plaintiffs federal recognition should be withdrawn based on his June 3, 1993, memorandum.³ Based on plaintiffs written acknowledgement of homosexuality, the Board found there was a rebuttable presumption plaintiff had engaged in homosexual conduct, which he had failed to rebut; and recommended that his federal recognition be withdrawn pursuant to 10 U.S.C. section 654, 32 U.S.C. section 323 and 32 C.F.R. former section 1101.3(c). The Board's recommendation that plaintiffs federal recognition be withdrawn was approved by the Sixth United States Army Commander and the federal National Guard Bureau. By order of the Governor of California dated October 21, 1994, and as mandated by 32 U.S.C. section 324(a)(2), the California National Guard honorably discharged plaintiff from his federally recognized position, effective September 12, 1994.⁴

On January 3, 1995, plaintiff received notification from the National Guard Bureau of the termination of his employment with the United States Army National Guard of California, based on the withdrawal of his federal recognition. According to the defendants, after the withdrawal of his federal recognition plaintiff reverted to his former reserve status and remained a state commissioned officer of the California State Military Reserve, pursuant to California Military and Veterans Code section 213, for the unexpired duration of the eight-year period of his obligated service— that is, until May 21, 1996. On the other hand, according to plaintiffs declaration, after notification of his honorable discharge he never received any further pay or communications of any kind from the California National Guard, was never informed that he retained his commission in the California National Guard, and was never told that he was eligible for any form of state active duty employment not requiring federal recognition.

In February 1995, plaintiff initiated the underlying litigation in federal district court against the defendants as well as the United States Army National Guard, the Secretary of Defense and the United States. The original action challenged plaintiffs discharge from the California National Guard and the United States Army National Guard under the Policy, and sought damages as well as injunctive and declaratory relief based on the United States Constitution and California state law. The District Court granted partial summary adjudication in favor of plaintiff on his federal equal protection and free speech claims against all defendants, and dismissed his remaining federal claims. (Holmes v. California Army Nat. Guard (N.D.Cal.1996) 920 F.Supp. 1510, 1536-1537.)

On September 5,1997, the Ninth Circuit Court of Appeals reversed the judgment, holding the Policy constitutional on its face and as applied to plaintiffs loss of federal recognition. (Holmes v. California Army National Guard, supra, 124 F.3d at pp. 1131-1137.) The federal appellate court also made the factual determination that after his October 1994 discharge from the United States Army National Guard and the January 1995 notification that he was being discharged from "the part of [the California National Guard] subject to being called into federal service, based solely on his loss of federal recognition," plaintiff retained and "currently holds an officer position in the state and United States reserve groups that does not require federal recognition and is not subject to being...