Stanton v. Dumke

CourtUnited States State Supreme Court (California)
Citation411 P.2d 108,64 Cal.2d 199,49 Cal.Rptr. 380
Decision Date23 February 1966
Parties, 411 P.2d 108 Dr. William F. STANTON et al., Plaintiffs and Appellants, v. Dr. Glenn DUMKE, as Chancellor of the State Colleges of California, et al., Defendants and Respondents. S. F. 22072.

Thorne, Stanton, Clopton, Herz & Stanek and William F. Stanton, San Jose, for plaintiffs and appellants.

Marshall W. Krause, San Francisco, and Albert M. Bendich, Berkeley, amici curiae on behalf of plaintiffs and appellants.

Thomas C. Lynch, Atty. Gen., Elizabeth Palmer and Jan Stevens, Deputy Attys. Gen., for defendants and respondents.

BURKE, Justice.

In this mandamus proceeding plaintiffs seek to compel defendants 1 to restore them to the faculty of San Jose State College as of September 1, 1962, and to recover salary from that date. The trial court sustained defendants' demurrer without leave to amend as to both plaintiffs, and also granted defendants' motion for summary judgment against plaintiff Hutchinson. Judgments were entered accordingly, and plaintiffs appeal. As will appear, we have concluded that the rulings of the trial court were correct, and that the judgments appealed from should be affirmed.

In ruling on the sufficiency of the petition for mandate as against demurrer, the court will assume to be true all material and issuable facts properly pleaded (Flores v. Arroyo (1961) 56 Cal.2d 492, 497, 15 Cal.Rptr. 87, 364 P.2d 263), disregarding conclusions of law and allegations contrary to facts of which judicial notice may be taken (Watson v. Los Altos School District (1957) 146 Cal.App.2d 768, 771-772, 308 P.2d 872; Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 918, 113 P.2d 270), and considering such judicially noticed facts as though pleaded in the petition. (Watson v. Los Altos School District, supra.)

When the petition is so viewed it appears that plaintiffs were appointed (i. e., employed) as probationary teachers at San Jose State College on a year to year basis for the three school years prior to the year ending June 30, 1962; they would have acquired tenure if employed for a fourth year by contract; on April 5, 1962, plaintiffs were notified in writing by the college president that they would not be so employed. Plaintiffs charge in their petition for the writ that failure to rehire for the fourth year was based upon non-academic reasons, such as their participation in uncovering an asserted agreement of state college presidents to exclude certain students from California's state colleges, and their activities on behalf of a teachers union.

Prior to July 1, 1961, the Education Code provided in pertinent part (in § 24202) 2 that 'the members of the teaching staff of each state college * * * shall be appointed by the Director of Education, subject to the approval of the State Board of Education, only upon the recommendation of the president of the college.'

In 1961 section 24202 was repealed. Section 22604, added in 1960, specifies that 'The Trustees of the State College System shall succeed to the powers, duties and functions with respect to the management, administration and control of the state colleges heretofore vested in the State Board of Education or in the Director of Education * * *. The provisions * * * relating to the transfer of the powers, duties, and functions with respect to the management, administration and control of the state colleges shall become operative on July 1, 1961.'

Section 22607, also added in 1960, states among other things that 'All academic and administrative positions filled by the trustees on and after July 1, 1961, shall be filled by appointment made solely at the discretion of the trustees.'

While the president's favorable recommendation thus was no longer essential to the appointment of a probationary academic employee after July 1, 1961, the Administrative Code continued to require that in the event a state college president should determine not to recommend reappointment of a probationary academic employee for the succeeding academic year, he should so notify such employee not later than April 15 of the academic year for which the employee is then employed. (Cal.Admin.Code, tit. 5, § 43302, formerly § 975.27.) Plaintiffs admit that the notice given on April 5, 1962, 'was in accord with the statutory requirements.'

Further, the Education Code contemplates that appointments made after July 1, 1961, although to be made 'solely at the discretion of the trustees' (§ 22607), should be made pursuant to rules adopted by the trustees. Section 24201, as amended in 1961, states (in its first paragraph) that 'The trustees shall provide by rule for the government of their appointees and employees * * * including, but not limited to, appointment, * * * terms, * * * tenure, * * * dismissal, demotion, suspension and reinstatement.' 3 (Italics added.)

In order to provide the law to be applied to the tenure rights and benefits of academic employees during the period from July 1, 1961, to July 1, 1962 (the date on which the rules adopted by the trustees would become effective pursuant to the second paragraph of section 24201, see fn. 3, ante), the Legislature enacted sections 24320 through 24324 (otherwise known as Article 3) and (§ 24321) expressly made them effective only until July 1, 1962. 4 (Stats. 1961, ch. 1828, p. 3903, § 32.5.)

From such sections it appears that during the interim period between July 1, 1961, and July 1, 1962, probationary teachers (as were petitioners here) retained any rights which had accrued to them prior to July 1, 1961, but nowhere does it appear that any new rights were bestowed upon them. Thus plaintiffs retained credit for their three years as probationary teachers, which would ripen into permanent tenure provided they were employed for the fourth year by contract. Further, although after July 1, 1961, the favorable recommendation of the college president was not a statutory prerequisite to appointment of a probationary academic employee (§ 22607), as it had been prior thereto (former § 24202), plaintiffs were given no new right to require that during the interim period the trustees appoint them for the fourth year or independently exercise a discretion with respect to such appointment in the absence of the president's favorable recommendation. Section 22607, quoted hereinabove, declares affirmatively that appointments shall be 'made solely at the discretion of the trustees,' but does not specify or suggest that the trustees must exercise their discretion with respect to each decision not to reappoint a probationary teacher.

Further, it appears that following the enactment of section 22607 transferring appointment power to the trustees as of July 1, 1961, the trustees by formal regulation continued in effect during the crucial period here involved the same system of appointments and retentions used by the State Board of Education. (Former Cal.Admin.Code, tit. 5, § 42701, subd. (a).) This rule provided that 'Appointments to academic * * * positions in the state colleges shall be made by the Trustees upon recommendation of the Chancellor. The president of each college shall recommend to the Chancellor the appointment of all academic * * * employees.' 5 Moreover, when plaintiffs were notified by the president of the college in April 1962 that they would not be reappointed, the trustees were expressly authorized to delegate any power vested in them 'to any officer, employee, or committee as the trustees may designate.' (Ed.Code, § 23605, Stats.1961, ch. 1796; see also § 24305.) 6

Before the transfer of the appointment power to the trustees, appointments were made by the Director of Education on recommendation of the college president subject to approval by the State Board of Education. After such transfer, appointments were made for terms of one academic year by the trustees on recommendation of the president submitted through the chancellor; if the president determined not to recommend reappointment for a succeeding year the probationary teacher's name was not submitted, but the president was required to comply with the regulations concerning notice to him. This was the procedure followed here, and no error is shown.

Plaintiffs and amici curiae attempt to inject a constitutional issue based upon plaintiffs' allegations as to the reasons they claim they were not employed for the fourth (tenure) year. 7 Accepting plaintiffs' contention that a person cannot properly be barred or removed from public employment in disregard of his constitutional rights (see Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 334, 38 Cal.Rptr. 625, 392 P.2d 385) plaintiffs still fail to make their case here. Plaintiffs could ask for no more than an opportunity to present their charges of arbitrary denial of such rights at a fairly conducted hearing at which the record supports the decision of the employing authority. Since that hearing was accorded to plaintiffs here, and the record supports the decision, we need not further explore, or adjudicate, the claimed constitutional issue.

Plaintiffs referred in their petition to, and lodged with the trial court, the 316-page transcript of the first hearing before the chancellor, 8 and refer to some four pages thereof as 'evidence' of the 'anti-union bias' of the college president. The testimony which appears on the four pages demonstrates on the contrary the care taken by the president to guard against any 'antiunion bias' on the part of the college committees and departments which in routine administrative procedure make the original reports and recommendations as to retention or nonretention of probationary employees. Since it is made a part of their petition, we have read the entire transcript of the hearing, which reflects lengthy questioning of the president by or on behalf of plaintiffs; the record fully supports the chancellor's conclusion that neither...

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