Leger v. Stockton Unified School Dist.

• Decision Date: 25 July 1988
• Docket Number: No. C000367,C000367
• Citation: 202 Cal.App.3d 1448,249 Cal.Rptr. 688
• Court: California Court of Appeals Court of Appeals
• Parties: , 47 Ed. Law Rep. 1093 Jaime LEGER et al., Plaintiffs and Appellants, v. STOCKTON UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Page 688

249 Cal.Rptr. 688

202 Cal.App.3d 1448, 47 Ed. Law Rep. 1093

Jaime LEGER et al., Plaintiffs and Appellants, v. STOCKTON UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

No. C000367.

Court of Appeal, Third District, California.

July 25, 1988.

Laura E. Bainbridge, Lodi, for plaintiffs and appellants

Mayall, Hurley, Knutsen, Smith & Green and Peter J. Whipple, Stockton, for defendants and respondents.

SIMS, Associate Justice.

In this case, we hold that the complaint of a high school student states a cause of action for damages against his school district and its employees. The complaint alleges employees of the district negligently failed to protect plaintiff Jaime Leger from an attack by a nonstudent in a school restroom, where they knew or reasonably should have known the restroom was unsafe and attacks by nonstudents were likely to occur.

Plaintiff contends the trial court erroneously sustained the demurrer of defendants Stockton Unified School District (District), Dean Bettker, and Greg Zavala to plaintiff's first amended complaint without leave to amend.

Since a general demurrer admits the truthfulness of properly pleaded factual allegations of the complaint (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 804, 205 Cal.Rptr. 842, 685 P.2d 1193), we recount the pertinent allegations:

At all relevant times defendant Bettker was the principal of Franklin High School, and defendant Zavala was a wrestling coach. Each such defendant was an employee of defendant District and was acting within the scope of his employment respecting the matters stated in the complaint.

Plaintiff, a student at Franklin High School, was injured on the school campus when he was battered by a nonstudent on February 14, 1983. Plaintiff was attacked in a school bathroom where he was changing his clothes before wrestling practice. Defendants knew or should have known the bathroom was an unsupervised location unsafe for students and that attacks by nonstudents were likely to occur there.

The complaint pled three legal theories of relief against defendants. The first count alleged a violation of plaintiff's inalienable right to attend a safe school. (Cal. Const., art. I, § 28, subd. (c).) The second count alleged the constitutional provision imposed a mandatory duty on defendants, within the meaning of Government Code section 815.6, to make plaintiff's school safe, the breach of which entitled him to damages. The third count alleged defendants negligently failed to supervise him or the location where he was changing his clothes for wrestling practice, knowing or having reason to know the location was unsafe for unsupervised students.

DISCUSSION

I

Article I, section 28, subdivision (c) of the California Constitution is not self-executing in the sense of providing a right to recover money damages for its violation.

Plaintiff first argues that article I, section 28, subdivision (c) of the California Constitution is self-executing and by itself provides a right to recover damages. That provision, enacted as a part of "the Victim's Bill of Rights," reads: "Right to Safe Schools. All students and staff of public primary, elementary, junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful." (Referred to hereafter for convenience as section 28(c).)

Article I, section 26 of the California Constitution provides: "The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."

Under this constitutional provision, all branches of government are required to comply with constitutional directives (Mosk v. Superior Court (1979) 25 Cal.3d 474, 493, 159 Cal.Rptr. 494, 601 P.2d 1030, fn. 17; Bauer-Schweitzer Malting Co. v. City and County of San Francisco (1973) 8 Cal.3d 942, 946, 106 Cal.Rptr. 643, 506 P.2d 1019) or prohibitions (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 8, 95 Cal.Rptr. 329, 485 P.2d 529). Thus, in the absence of express language to the contrary, every constitutional provision is self-executing in the sense that agencies of government are prohibited from taking official actions that contravene constitutional provisions. (Ibid.) "Every constitutional provision is self-executing to this extent, that everything done in violation of it is void." (Oakland Paving Co. v. Hilton (1886) 69 Cal. 479, 484, 11 P. 3; see Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 8, 95 Cal.Rptr. 329, 485 P.2d 529.)

The question here is whether section 28(c) is "self-executing" in a different sense. Our concern is whether section 28(c) provides any rules or procedures by which its declaration of rights is to be enforced, and, in particular, whether it provides citizens with a specific remedy by way of damages for its violation in the absence of legislation granting such a remedy. (See Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 858, 182 Cal.Rptr. 813 (dis. opn. of Kaufman, J.).)

"A provision may be mandatory without being self-executing. It is self-executing if no legislation is necessary to give effect to it, and if there is nothing to be done by the Legislature to put it into operation. A constitutional provision contemplating and requiring legislation is not self-executing. [Citation.] In other words, it must be regarded as self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the Constitution itself, so that they can be determined by an examination and construction of its terms and there is no language indicating that the subject is referred to the Legislature for action [citation]; and such provisions are inoperative in cases where the object to be accomplished is made to depend in whole or in part on subsequent legislation." (Taylor v. Madigan (1975) 53 Cal.App.3d 943, 951, 126 Cal.Rptr. 376.)

The following rule has been consistently applied in California to determine whether a constitutional provision is self-executing in the sense of providing a specific method for its enforcement: " 'A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.' " (Older v. Superior Court (1910) 157 Cal. 770, 780, 109 P. 478, quoting Cooley, Constitutional Limitations (7th ed. 1903) p. 121; see Winchester v. Howard (1902) 136 Cal. 432, 440, 64 P. 692; Chesney v. Byram (1940) 15 Cal.2d 460, 462, 101 P.2d 1106; People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723; California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594, 131 Cal.Rptr. 361, 551 P.2d 1193.)

We recognize that a constitutional provision is presumed to be self-executing unless a contrary intent is shown. ( Winchester v. Howard, supra, 136 Cal. at p. 440, 64 P. 692; 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 38, p. 3278.) Here, however, section 28(c) declares a general right without specifying any rules for its enforcement. It imposes no express duty on anyone to make schools safe. It is wholly devoid of guidelines, mechanisms, or procedures from which a damages remedy could be inferred. Rather, " 'it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.' " ( Older v. Superior Court, supra, 157 Cal. at p. 780, 109 P. 478, citation omitted.) ¹

Although not cited by plaintiff, we note that in White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, the court held that the constitutional provision protecting the right of privacy (Cal. Const., art. I, § 1) ² was self-executing and supported a cause of action for an injunction. (13 Cal.3d at pp. 775-776, 120 Cal.Rptr. 94, 533 P.2d 222.)

White's conclusion was based upon an "election brochure 'argument,' a statement which represents ... the only 'legislative history' of the constitutional amendment...." ( Id., at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222.) The court reasoned that a statement in the brochure that the amendment would create " 'a legal and enforceable right of privacy for every Californian' " By way of contrast, there is no indication in any of the sparse "legislative history" of section 28(c) to suggest it was intended to support an action for damages in the absence of enabling and defining legislation. The ballot arguments do not so much as hint at such a remedy. "The Victim's Bill of Rights" itself declares that, "The rights of victims pervade the criminal justice system, encompassing ... the ... basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance. [p] Such public safety extends to public ... senior high school campuses, where students and staff have the right to be safe and secure in their persons. [p] To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives." (Art. I, § 28, subd. (a)., emphasis added.) Thus, the goal of public safety, including the safety of those in our schools, is to be reached through reforms in the criminal laws (see Brosnahan v. Brown (1982) 32 Cal.3d 236, 247-248, 186 Cal.Rptr. 30, 651 P.2d 274); a private right to sue for damages is nowhere mentioned nor implied. Since the enactment of section 28(c) was accomplished without "legislative history" comparable to that relied on by the court in White v. Davis, supra, that case does not aid pl...