Schmid v. Lovette

• Decision Date: 13 April 1984
• Citation: 201 Cal.Rptr. 424,154 Cal.App.3d 466
• Court: California Court of Appeals
• Parties: , 16 Ed. Law Rep. 1313 Marvin SCHMID, Plaintiff and Respondent, v. Richard LOVETTE, et al., Defendants and Appellants. AO15163. Civ. 54157.

Page 424

201 Cal.Rptr. 424

154 Cal.App.3d 466, 16 Ed. Law Rep. 1313

Marvin SCHMID, Plaintiff and Respondent, v. Richard LOVETTE, et al., Defendants and Appellants.

AO15163.

Civ. 54157.

Court of Appeal, First District, Division 2, California.

April 13, 1984.

John Van de Kamp, Atty. Gen., Charlton G. Holland, Asher Rubin, Deputy Attys. Gen., San Francisco, Russell Taylor, Taylor & Field, Oakland, for defendants and appellants.

Amitai Schwartz, Alan L. Schlosser, Margaret C. Crosby, American Civil Liberties Union Foundation of Northern Calif., San Francisco, James Chanin, Berkeley-Albany-Kensington Chapter ACLU, Oakland, for plaintiff and respondent.

KLINE, Presiding Justice.

INTRODUCTION

The Richmond Unified School District and certain officials thereof appeal the award of attorney's fees against them and in favor of plaintiff Marvin Schmid. Said fees were awarded in connection with plaintiff's successful action against appellants and various state agencies and officials ¹ in which the court granted injunctive relief and declared the unconstitutionality of former Education Code sections 7001, 7003 and 7006. ² These statutes required that employees of school and community college districts subscribe to an oath stating they are not knowing members of the Communist Party. The sole issue on appeal is whether the superior court abused its discretion in awarding attorney's fees to plaintiff's counsel pursuant to Code of Civil Procedure section 1021.5 (California's private attorney-general statute) and 42 U.S.C. section 1988 (awarding fees to the "prevailing party" in civil rights litigation).

STATEMENT OF THE CASE

Plaintiff sought injunctive and declaratory relief by way of an action in the Superior Court of Contra Costa County against officials of the district and against the district itself, officials of the Contra Costa County Community College District and the district itself, and against the State Superintendent of Public Instruction and the State Board of Education on the grounds that administration and enforcement of the non-Communist Party oath was repugnant to the state and federal constitutions.

On April 24, 1981, the superior court granted summary judgment to plaintiff. On June 2, 1981, the court filed its judgment restraining administration and enforcement of the unconstitutional oath provision of the statutes and ordered the state defendants to notify all school and community college districts that the statutes are unconstitutional and void and requiring the State Board of Education to promulgate regulations forbidding their enforcement. The court also awarded reasonable attorney's fees against the Richmond Unified School District defendants, and reserved jurisdiction to fix the amount of the fee and enforce the award.

FACTS

Plaintiff Marvin Schmid is a resident taxpayer of the Richmond Unified School District and the Contra Costa Community College District. In early 1980 she applied for a teaching position with the Richmond Unified School District on two occasions and was required to sign statements that "I am not knowingly a member of the Communist Party." She signed the required oath, but "wrote a disclaimer beneath it, objecting to discrimination against any group in public employment."

On July 2, 1980, one of plaintiff's attorneys, cooperating with the American Civil Liberties Union of Northern California (ACLU), wrote Dr. Richard Lovette, the district superintendent, "demanding that you immediately cease administering or attempting to administer the ... oath to any of your employees or prospective employees." Dr. Lovette responded, in pertinent part: "In response to your letter of July 2, 1980, I wish to inform you that I have met with members of the Board of Education and a decision has been reached concerning your demand.... The Board of Education will continue to administer the oath described above, which includes the presentation of the oath on an employment application. This is a requirement of the Education Code."

On December 9, 1980, plaintiff filed her complaint in the superior court.

The Contra Costa Community College District defendants filed a disclaimer of interest in the lawsuit since the college district did not administer the oath and did not intend to do so. The State Board of Education and Superintendent of Public Instruction admitted all allegations of the complaint, including the allegation that the statutes were unconstitutional, except allegations that they had not followed the constitution.

The Richmond Unified School District defendants, unlike all other defendants, denied most of the critical allegations of the complaint and vigorously opposed the relief sought. ³

Plaintiff moved for summary judgment on March 9, 1981. Plaintiff included in her moving papers several declarations designed to show the need for injunctive relief and the broad impact that a declaration of unconstitutionality would have throughout the state. Benjamin Visnick filed a declaration stating that he had been required by the Richmond Unified School District to sign a statement under oath stating that he did not belong to the Communist Party and that he was required to do so on January 12, 1981, after the filing of this lawsuit. James Kilgore of Hacienda Heights, California, filed a declaration stating that he had been required to sign the non-Communist oath by the Hacienda-La Puente Unified School District in Los Angeles County in January 1981. Sandra Obermeyer a law student extern with the ACLU, filed a declaration showing that she had contacted 31 school districts and that the vast majority did not administer or enforce the oath. A few districts, however, continued to do so, including the Turlock Unified School District, the Hickman Unified School District, Ceres Unified School District, and the Office of Education of San Benito County; Obermeyer later received a copy of the Stanislaus County Department of Education oath for applicants for employment with the school district, which oath included the challenged non-Communist Party member oath.

The district defendants' response to the motion was to renew its grounds for opposing the earlier motion for preliminary injunction and also to contend that fees should not be awarded.

On April 24, 1981, the court filed its memorandum of decision granting summary judgment and indicating its intention to award reasonable attorney's fees against the district defendants. ⁴ The court found that the challenged statutes were clearly "repugnant to both the United States and California Constitutions," citing e.g., Keyishian v. Board of Regents (1967) 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell (1966) 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961; Monroe v. Trustees of the California State Colleges (1971) 6 Cal.3d 399, 99 Cal.Rptr. 129, 491 P.2d 1105.

The court awarded attorney's fees under both Code of Civil Procedure section 1021.5 ⁵ and 42 U.S.C., section 1988, ⁶ the Civil Rights Attorney's Fees Award Act of 1976. The court held that plaintiff was entitled to fees pursuant to section 1021.5: "The Richmond Unified School District opposes an award of attorney's fees on the ground that this judgment will not confer a benefit on a large class of persons. It is the opinion of this court that a class of sufficient size has been indicated, since this defendant promises to enforce the code sections for an indefinite future if not restrained."

The court also held that an award of fees was appropriate under section 1988, citing Perez v. University of Puerto Rico (1st Cir.1979) 600 F.2d 1, 2, for the proposition that section 1988 was concerned with enforcement of the civil rights of individual plaintiffs as well as of the public.

On June 9, 1981, judgment was entered declaring the statutes unconstitutional, enjoining their enforcement by the district, and requiring the state defendants to inform all school and community college districts that the statutes are unconstitutional and that each such district must promulgate regulations forbidding their enforcement. The district defendants appeal only that portion of the judgment awarding attorney's fees to the plaintiff.

DISCUSSION

I.

Initially, appellants contend that they had no choice but to enforce the loyalty oath provisions of the Education Code arguing that the California Constitution, article III, section 3.5, precluded them from declaring the loyalty oath sections unconstitutional prior to an appellate court determination to that effect. ⁷

We agree with the trial court and with plaintiff that the former Education Code sections requiring the non-Communist loyalty oaths were patently unconstitutional following decisions rendered long ago by both state and federal authorities. (See, e.g. Wieman v. Updegraff (1952) 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Keyishian v. Board of Regents, supra, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, supra, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Vogel v. County of Los Angeles, supra, 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961; Monroe v. Trustees of California State College, supra, 6 Cal.3d 399, 412, 99 Cal.Rptr. 129, 491 P.2d 1105.) This conclusion, which it is rather distressing to be required to reiterate at this late date, is certainly no surprise to the overwhelming number of school districts in California, which prior to this action did not comply with the statutes, nor to the State Board of Education, which did not enforce them.

Moreover, even if we assume appellants genuinely believed the loyalty oath statutes had not effectively been determined to be unconstitutional by the appellate courts and that as a result appellants were precluded by article III, section 3.5, from refusing to enforce them, they still would not be insulated against an award of attorney's fees.

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