Monroe v. Trustees of the California State Colleges

• Decision Date: 30 December 1971
• Citation: 491 P.2d 1105,6 Cal.3d 399,99 Cal.Rptr. 129
• Court: California Supreme Court
• Parties: , 491 P.2d 1105 Albert E. MONROE, Plaintiff and Appellant, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES, Defendant and Respondent. L.A. 29926. In Bank

Page 129

99 Cal.Rptr. 129

6 Cal.3d 399, 491 P.2d 1105

Albert E. MONROE, Plaintiff and Appellant, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES, Defendant and Respondent.

L.A. 29926.

Supreme Court of California,

In Bank.

Dec. 30, 1971.

Rehearing Denied Jan. 26, 1972.

Gibson, Dunn & Crutcher, Samuel O. Pruitt, Jr., Paul G. Bower, Bette B. Gallo, Don Parris, David A. Cathcart, Thomas E. Gallagher, Joan L. Freeman, Robert A. Miller and Merle W. Wood II, Los Angeles, for plaintiff and appellant.

Thomas C. Lynch, Atty. Gen., Sanford N. Gruskin, Asst. Atty. Gen., Henry G. Ullerich and Howard J. Schwab, Deputy Attys. Gen., for defendant and respondent.

TOBRINER, Justice.

In November 1950, Albert E. Monroe (hereinafter petitioner), then a tenured, full professor and Chairman of the Language Arts Division at San Francisco State College, was discharged from his teaching position solely on the basis of his refusal to sign the 'Levering Oath,' a loyalty oath formerly embodied in section 3103 of the Government Code. In 1952 this court in Pockman v. Leonard (1952) 39 Cal.2d 676, 249 P.2d 267, upheld the Levering Oath in the face of a constitutional attack, but in 1967, in Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961, we expressly overruled Pockman and concluded that the Levering Oath, proscribing public employees' mere membership in certain organizations, constituted an unconstitutional infringement of First Amendment rights.

One week after Vogel became final, Monroe wrote to the Trustees of the California State Colleges, respondent herein, requesting, in light of Vogel, reinstatement to his former position and restoration of lost salary and pension rights; the Trustees, acting without a hearing, refused to grant petitioner either reinstatement or the restoration of any financial benefits. Monroe then filed his petition in the instant action, seeking a writ of mandate to compel the Trustees (1) to reinstate him to his former position, (2) to restore his pension rights upon payment of his required contribution, and (3) to reimburse him for the difference between the salary he would have earned if he had not been discharged and the salary he actually earned in other employment, a sum of $79,000. The trial court sustained a general demurrer to Monroe's first amended petition with leave to amend, and upon petitioner's failure to amend, entered an order dismissing Monroe's petition; it is from that order that petitioner Monroe now appeals.

To support the order sustaining the general demurrer, the Trustees contend primarily that petitioner's own pleading reveals on its face that the present action encounters the bar of the applicable statute of limitations, since its allegations demonstrate that Monroe's discharge became final in the early 1950's. As discussed more fully below, however, we have determined that although the statute of limitations does presently preclude an attack on petitioner's Initial discharge, the instant complaint attacks not only the propriety of the 1950 discharge but also the validity of the Trustees' Refusal to reinstate Monroe in 1968, after the Vogel decision. Insofar as the Trustees' 1968 refusal to reinstate him constitutes the basis of petitioner's suit, we conclude that this action, commenced in December 1968, was timely filed.

Moreover, we hold that the allegations of the present pleadings establish petitioner's right to reinstatement because they show that even after Vogel exposed the constitutional infirmity of the basis for his discharge the Trustees summarily denied reinstatement: they held no hearing on his petition nor did they render any finding on the question of whether any 'cause' remained to justify Monroe's continued forced separation from the state college system. Finally, we conclude that, although petitioner has properly set forth his right to reinstatement as of 1968, he does not establish the right to back pay or to the restoration of pension benefits which accrued between 1950 and 1968, because those incidental remedies could only flow from an invalidation of his Initial discharge, and the statute of limitations has run on such a claim. Under the circumstances of the instant case, petitioner is entitled only to the restoration of pension rights obtained prior to his 1950 discharge and to back pay and pension benefits which have accrued since the Trustee's refusal to reinstate him in 1968.

We begin our analysis with a review of the relevant facts. In determining the sufficiency of petitioner's amended complaint against a demurrer, we must, of course, treat the demurrer as admitting all material facts properly pleaded. (Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.) According to the amended complaint, until November 4, 1950, petitioner taught at San Francisco State College as a full professor, with tenure under the California state college system, serving as Chairman of the college's Language Arts Division. On November 4, 1950, Monroe suffered dismissal from his position solely because he would not sign the newly enacted state loyalty oath, the 'Levering Oath'; ¹ petitioner's refusal to sign the oath rested entirely on his conscientious belief that the oath embodied an unconstitutional abridgement of academic freedom and his constitutional rights of freedom of speech, freedom of assembly and freedom of association.

In October 1952, while Monroe was duly challenging his discharge throught the appropriate administrative channels, this court upheld the constitutionality of the Levering Oath in the case of Pockman v. Leonard (1952) 39 Cal.2d 676, 249 P.2d 267. Thereafter the State Personnel Board sustained Monroe's dismissal on September 11, 1953. Reasoning that resort to the judiciary at that time would obviously be futile in light of the then-recent Pockman decision, Monroe did not challenge the State Personnel Board's affirmance of his dismissal in the courts.

On December 21, 1967, however, in Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961, this court concluded that the Levering Oath was unconstitutional and expressly overruled our earlier Pockman decision; Vogel became final on March 20, 1968. On March 26, 1968, petitioner wrote to the Trustees of the California State Colleges, requesting (1) that he be reinstated to his position, (2) that his pension rights be restored upon his payment of the requisite contribution to the pension fund, and (3) that he be reimbursed for the difference between the salary he would have earned if he had not been dismissed and the salary he actually earned in other employment. The Trustees declined either to reinstate petitioner or to authorize the restoration of pension rights and the reimbursement of back pay. On May 7, 1968, petitioner filed with the State Board of Control his claim for the differential in back pay, some $79,000, as well as his claim for the restoration of pension benefits; these claims were rejected a month later, on June 18, 1968. On December 18, 1968, Monroe filed his initial petition for writ of mandate in the instant action.

In addition to describing the foregoing chronology of events, Monroe's pleading alleges that the state college system would not be burdened by his reinstatement because of a current shortage of teachers with petitioner's professional qualifications; the petition asserts that no person will be required to be dismissed or demoted to accommodate Monroe's reinstatement. Petitioner further alleges that over the years not more than 15 persons throughout the state have been dismissed for refusing to sign the Levering Oath, and that, as a result, the possible financial burden to the state, in the event of a ruling fully favorable to his position, would not exceed $500,000. Finally, Monroe declares that he is fully willing to sign the present loyalty oath contained in article XX, section 3 of the California Constitution; indeed he notes that when he first entered service at San Francisco State College he signed a substantially identical loyalty oath, which he has never repudiated.

As noted above, the Trustees' primary contention in support of the demurrer is that petitioner's pleading reveals on its face that it is barred by the applicable statute of limitations. We address this issue first.

1. Insofar as petitioner attacks the Trustees' refusal to reinstate him in 1968, and not his initial discharge in 1950, the statute of limitations begins to run from April 1968, and the present action, commenced in December 1968, was timely filed.

Although there is some dispute between the parties as to whether the governing limitations period in this matter is one year, as the Trustees urge (see Gov.Code, §§ 19630, 945.6), or three years, as petitioner suggests (see Code Civ.Proc., § 338, subd. 1; Lerner v. Los Angeles City Board of Education (1963) 59 Cal.2d 382, 389, 29 Cal.Rptr. 657, 380 P.2d 97), the crucial question turns not upon the appropriate length of the limitations period, but instead, upon the date from which the appropriate period is to commence. If, as the Trustees contend, the statute of limitations starts to run from September 1953, when petitioner's dismissal became final with the exhaustion of his administrative remedies, then, whether the applicable limitations period is one year or three years, petitioner's claim clearly comes too late. If, however, the limitations period is to be measured from April 1968, when the Trustees denied reinstatement despite our decision in Vogel, as petitioner suggests, then this action, instituted in December 1968, would be timely under either a one-year or three-year limitations period. Well established precedent decrees, of course, that the statute of limitations in a mandamus proceeding 'begins to run when the (petitioner's) right first accrues. (Citations.)' (...