Macphail v. Court of Appeal

• Decision Date: 08 August 1985
• Docket Number: S.F. 24680
• Citation: 217 Cal.Rptr. 36,39 Cal.3d 454,703 P.2d 374
• Court: California Supreme Court
• Parties: , 703 P.2d 374, 44 Fair Empl.Prac.Cas. (BNA) 1147 Alec Campbell MacPHAIL, Petitioner, v. The COURT OF APPEAL, THIRD APPELLATE DISTRICT et al., Respondents. DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING et al., Real Parties in Interest.

Page 36

217 Cal.Rptr. 36

39 Cal.3d 454, 703 P.2d 374, 44 Fair Empl.Prac.Cas. (BNA) 1147

Alec Campbell MacPHAIL, Petitioner, v. The COURT OF APPEAL, THIRD APPELLATE DISTRICT et al., Respondents DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING et al., Real Parties in Interest.

S.F. 24680.

Supreme Court of California,

In Bank.

Aug. 8, 1985.

As Modified Sept. 19, 1985.

Chris Redburn, The Employment Law Center, San Francisco, for petitioner.

Mary Lynn Fisher, Western Law Center for the Handicapped, Los Angeles, Frederick W. Pade, Burbank, Richard Amon, Wichita Falls, Tex., Talmadge L. Jones, Deputy Atty. Gen., Sacramento, for respondents.

Prudence Kay Poppink, Acting Gen. Counsel, Dept. of Fair Employment & Housing, Rogers, Joseph, O'Donnell & Quinn, San Francisco, for real parties in interest.

BROUSSARD, Justice.

Petitioner Alec Campbell MacPhail brings this original writ proceeding ¹ to challenge the validity of the injunction at issue in the related case, State Personnel Board v. Fair Employment and Housing Commission (1985) 39 Cal.3d 422, 217 Cal.Rptr. 16, 703 P.2d 354. Petitioner MacPhail, who alleges he was discriminatorily rejected from employment by the state, seeks a writ of mandate to vacate the orders of respondents Court of Appeal and superior court, which orders are currently preventing the Department of Fair Employment and Housing (DFEH) and the Fair Employment and Housing Commission (FEHC or Commission) from processing his discrimination claim. MacPhail's petition is filed on behalf of himself and all other employees of and applicants to the state civil service who are similarly prevented from pursuing employment discrimination claims with DFEH and FEHC under the broad terms of the injunction issued in State Personnel Board. ²

In 1978 and 1981, MacPhail applied for the position of traffic officer cadet with the California Highway Patrol. Like the real parties in interest in State Personnel Board, MacPhail successfully passed all written and oral examinations, but was subsequently disqualified on the basis of the State Personnel Board's (Board) medical criteria for the position. MacPhail's back X-ray allegedly revealed anomalies of the lumbar spine, which the Board believed would present a higher than average risk of future back injury. MacPhail protested his disqualification, alleging that he had been an active participant in strenuous competitive athletics since childhood and had never suffered from any discomfort, stiffness, reduced movement or any other symptoms of back problems. MacPhail submitted the reports of four physicians, two of them orthopedic specialists, all finding him completely healthy and fit for the duties of a cadet.

After the Board rejected MacPhail's appeals in 1979 and 1981, he filed complaints with DFEH charging the Board and the California Highway Patrol with discrimination on the basis of physical handicap. ³ DFEH has taken no action on MacPhail's complaints because it is enjoined from processing any charges of discrimination against the state civil service, under the terms of the injunction issued by the superior court in State Personnel Board.

MacPhail repeats the arguments made by appellant FEHC and the real parties in interest in State Personnel Board. (See State Personnel Board v. Fair Employment and Housing Commission, supra.) To these arguments MacPhail adds the claim that the injunction against DFEH and FEHC denying him access to the adjudicatory procedures to which he is entitled under the Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) deprives him of a species of property without due process. (See Logan v. Zimmerman (1982) 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265.) MacPhail contends that his "medical appeal" with the Board failed to satisfy the requirements of due process, primarily because the Board is not an impartial adjudicator of the lawfulness of its own employment standards. ⁴ He relies centrally on Wong Yang Sung v. McGrath (1950) 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 and Mennig v. City Council (1978) 86 Cal.App.3d 341, 150 Cal.Rptr. 207.

We need not reach petitioner's due process claim, however, in view of our decision today in State Personnel Board. For the reasons explained in that decision, we hereby grant the relief sought by petitioner MacPhail--namely, an order dissolving the injunction that has prevented DFEH and FEHC from moving forward on his complaint.

Let a peremptory writ of mandamus issue commanding respondent superior court to vacate its orders in State Personnel Board v. Fair Employment and Housing Commission, supra. We reserve jurisdiction for purpose of considering petitioners request for an award of attorney's fees.

BIRD, C.J., and KAUS, J., concur.

GRODIN, Justice, concurring.

I find considerable merit in Judge Gilbert's criticism of the rule that issuance of the alternative writ constitutes a determination of the inadequacy of available legal remedies, and I agree that the rule should be reconsidered. The peculiar procedural history of this case, however, makes it in my view a less than ideal vehicle for that purpose. I therefore concur in the judgment, subject to the reservations I expressed in the "companion" case, State Personnel Bd. v. Fair Employment & Housing Com., 39 Cal.3d 422, 217 Cal.Rptr. 16, 703 P.2d 354.

LUCAS, Justice, dissenting.

I respectfully dissent.

For the reasons stated in my dissent in State Personnel Board v. Fair Employment and Housing Commission (1985), 39 Cal.3d 422, 217 Cal.Rptr. 16, 703 P.2d 354, I would deny the peremptory writ.

MOSK, Justice, dissenting.

I dissent.

For the reasons stated in my dissent in State Personnel Bd. v. Fair Employment & Housing Com., 39 Cal.3d 422, 217 Cal.Rptr. 16, 703 P.2d 354, and in my dissent in American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 611, 186 Cal.Rptr. 345, 651 P.2d 1151, I would deny the peremptory writ.

GILBERT, Justice Pro Tem., ^* dissenting.

While I have joined in Justice Grodin's concurring opinion in State Personnel Board v. Fair Employment and Housing Commission (1985) 39 Cal.3d 422, 217 Cal.Rptr. 16, 703 P.2d 354, I dissent from the result here.

I would deny the extraordinary relief sought by petitioner McPhail here due to the adequacy of available legal remedies and the related absence of sufficient beneficial interest of petitioner in the substance of the litigation.

The procedural context of the instant case suggests the need to question what is, by now, the long standing and accepted rule that issuance of an alternative writ is a final determination of the inadequacy of legal remedies. A review of the origins of the rule also suggests that its present form is not supported by the considerations which prompted the adoption of the original rule from which it derives.

On an appeal from the granting of a peremptory writ of prohibition in Bowles v. Superior Court (1955) 44 Cal.2d 574, 283 P.2d 704, this court deferred to the Court of Appeal's earlier determination of the inadequacy of legal remedy upon its issuance of an alternative writ and reached the merits of the controversy before it. We noted that, "It was, of course, the duty of that court before issuing an alternative writ to determine whether petitioners had another plain, speedy and adequate remedy in the ordinary course of law. Even though we may disagree with the determination of the District Court of Appeal as to the existence of another adequate remedy, it does not follow that we must refuse to allow the use of the writ to test the jurisdiction of the trial court. A final determination of the merits of this controversy at the earliest possible date is of great importance to all the parties, and it would hinder and delay rather than serve the interests of justice if we were, at this stage of the proceedings, to refrain from deciding whether the trial court has acted in excess of its jurisdiction." (Bowles v. Superior Court, supra, (1955) 44 Cal.2d 574, 582, 283 P.2d 704.) ¹ The rule of convenience and judicial economy articulated in Bowles was subsequently applied in a similar context in Atkinson v. Superior Court (1957) 49 Cal.2d 338, 316 P.2d 960.

In City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 333 P.2d 745, the Bowles rule of convenience and economy was expressed as a fixed rule of substance and procedure. In City of Los Angeles, involving the issuance of an alternative writ in the exercise of the court's original jurisdiction, we held that, "The absence of another adequate remedy was determined by this court when we granted an alternative writ." (City of Los Angeles v. Superior Court, supra, 51 Cal.2d at 429, 333 P.2d 745, emphasis added.) Without comment, Atkinson and Bowles were cited as authority for the quoted holding. The same rule, first expressed in cases involving prohibition, has been applied with equal force in cases of mandate. (See, for example, Weber v. Superior Court (1960) 53 Cal.2d 403, 406, 2 Cal.Rptr. 9, 348 P.2d 572.)

The rule that the issuance of the writ is a final determination of the inadequacy of available legal remedies has endured without critical comment or discussion throughout the subsequent decisions of this court and the Courts of Appeal. ² (See, for example, San Francisco Unified School District v. Johnson (1971) 3 Cal.3d 937, 944-945, 92 Cal.Rptr. 309, 479 P.2d 669; Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379; Mannheim v. Superior Court (1971) 3 Cal.3d 678, 686, 91 Cal.Rptr. 585, 478 P.2d 17: Atlas Plastering, Inc. v. Superior Court (1977) 72 Cal.App.3d 63, 140 Cal.Rptr. 59.) ³

The transition from a flexible rule of convenience to a rule of conclusive determination has not gone unnoticed, however. Noting the evolution, Professor Witkin notes that, "But in late cases the theories of waiver and discretion have been abandoned in favor of a positive rule of fictional determination of the issue[.]" (5 Witkin, Cal.Procedure...