Toney v. State of California

• Decision Date: 23 January 1976
• Citation: 126 Cal.Rptr. 869,54 Cal.App.3d 779
• Court: California Court of Appeals Court of Appeals
• Parties: Joe David TONEY, Plaintiff, Appellant and Respondent, v. The STATE of California, Defendant and Appellant, Phillip Walker, Defendant and Respondent. Civ. 2307.

Page 869

126 Cal.Rptr. 869

54 Cal.App.3d 779

Joe David TONEY, Plaintiff, Appellant and Respondent, v. The STATE of California, Defendant and Appellant, Phillip Walker, Defendant and Respondent.

Civ. 2307.

Court of Appeal, Fifth District, California.

Jan. 23, 1976.

Irwin & Thuesen and Donald C. Thuesen, Fresno, for plaintiff, appellant and respondent Joe David Tonney

Evelle J. Younger, Atty. Gen., John M. Morrison and Philip B. Laird, Jr., Deputy Attys. Gen., Sacramento, for defendant and appellant State of California and defendant and respondent Phillip Walker.

OPINION

GEO. A. BROWN, Presiding Justice.

Dr. Joe David Toney was a black professor of chemistry at Fresno State College. ¹ Dr. Phillip Walker was the Acting Dean of the School of Arts and Sciences at the same institution. Toney sued Walker and the State of California (hereinafter 'State') in two causes of action for defamation and intentional infliction of emotional distress. There were also fictitiously named defendants who were dismissed from the action at the pretrial conference. The jury returned a money verdict in Toney's favor against State only for $10,000. The verdict was in favor of Walker individually and against Toney on the complaint.

Walker cross-complained against Toney, alleging intentional infliction of emotional distress and false imprisonment. The jury found in favor of Toney and against Walker on the cross-complaint. No appeal has been filed from that part of the judgment.

State has appealed the judgment against it, and Toney filed an appeal from the judgment in favor of Walker on the complaint. However, Toney admits that he is seeking a reversal of the judgment as to Walker only if the judgment against State is reversed. Therefore, since we affirm the judgment against State, we need consider only those issues raised on State's appeal.

FACTS

The imbroglio out of which this case arises was initiated at a meeting on March 19, 1970, held between 40 and 50 black students and Toney on the one hand, and at their request, and Walker on the other hand, in a confrence room on the campus of Fresno State. The black students wanted to discuss certain problems relative to the ethnic studies program at the college.

Shortly after Walker began to address the group, one of the students shouted 'Well, we don't want any of this procedural bullshit!' The rest of the students then joined in, indicating their discontent. Walker responded by saying, 'If this is going to be turned into a shouting match I am not going to stay here.' Walker attempted to leave but was told that he could not leave, and a group of the students moved to block his exit. Walker shouted for 'security' (i.e., campus security officers), but no one responded to Walker's shout. He then sat down and refused to speak for approximately 45 minutes while the students taunted him with abusive language and insults. Walker attempted a second time to leave but was again prohibited from leaving.

Eventually the mood became more tranquil, and Walker believed that a productive interchange would be possible. Real communication between Walker and the students began to take place. However, the meeting once again became highly emotional. It was during this period of time that Toney spoke to Walker. Prior to the meeting Walker had never met Toney and he did not knwo Toney on sight. Only at some point during the meeting did Walker conclude that the faculty member attending the meeting and addressing him was Toney. Walker testified at trial that he could recall the substance of three statements addressed to him by Toney, whom he considered as having begun to assume a leadership role at the meeting. The first remark concerned the rehiring of a member of the ethnic studies faculty. Walker recalled the second statement as being, 'Man, you better watch out because on some dark night on a street you are going to get run down,' or 'You might get run down by a car.' The third was an accusation that Walker was attempting to place the students in jeopardy of being charged with trespass. However, in his testimony Toney denied ever making the second statement or one similar to it, and Walker's assertion was not corroborated by anyone else at the meeting, including two caucasian campus news reporters who attended the meeting.

At this time the campus police, who had been advised of the meeting previously, had become concerned for Walker's safety. One of the officers forced his way into the room and asked Walker if he wished to leave. Walker responded that he did and stood to leave. Immediately one of the students pushed Walker back into his seat and shoved the officer out of the room. The other students then began to barricade the two doors leading into the room with tables and chairs. A group of campus security officers then forcibly broke into the room through the makeshift barricades and lined the students and Toney up against the wall and photographed them. One of the officers then asked 'Who is in charge of this group?' Toney responded, 'I am. You know me. I am Toney.' When the officers entered the room, Walker immediately left.

After leaving the room, Walker went directly to the office of Dr. Falk, the then President of Fresno State, to inform his office of what had occurred. Also present at some time during this meeting was Dr. James Fikes, executive vice president. Walker then proceeded to record his recollection of the day's events on a dictaphone. At approximately 5 p.m. Dr. Baxter, Academic Vice President of Fresno State, visited Walker, and Walker gave him a general outline of what had occurred that day. He implicated Toney by name as being actively involved during the latter part of the meeting and of assuming a position of leadership.

Walker decided to proceed with criminal and disciplinary proceedings against those whom he felt were responsible for the incident, specifically, Toney. The members of the administration with whom Walker discussed the incident, including Falk, Baxter and Fikes, indicated that they would support him whether he chose to take any action or not.

Walker caused to be filed against Toney a criminal complaint for breach of the peace and false imprisonment, and approximately seven days after the incident Toney was arrested. On motion of the district attorney, these charges were dismissed on May 6, 1970 for insufficient evidence and in the interest of justice.

On April 1, 1970, pursuant to Walker's request and under statutory authority, ² President Falk suspended Toney from teaching for a period of 30 days.

Walker gave statements regarding the incident to various officials and members of the press, radio and television, and it received broad coverage. When Walker gave the statements to interviewers he knew they would be reported to the public and he never specifically used Toney's name. The press reports were generally straightforward statements of his version of the facts. There were also two televised interviews with Walker. A written copy of Walker's statement in one of the interviews is attached as Appendix 1.

There was only one publication in which Walker did not participate. This was an official release from the community relations office of the college, issued at a press conference called by President Falk and Fikes. This release was made on or about April 1, 1970, and it advised that Toney had been suspended and faced criminal charges and disciplinary action because of his leadership of the students at the meeting wherein Walker had been imprisoned and assaulted by the students, a copy of which is attached as Appendix 2.

On or about April 1, 1970, disciplinary proceedings requested by Walker were commenced pursuant to internal college administrative procedures prescribed in a document entitled 'Transitional Disciplinary Action Procedures for Academic Personnel Executive Order No. 81.' Issued by the state college system. As required by that executive order, Dr. William Dienstein, a professor of criminology, was appointed as the initiator to investigate the facts and to frame charges that he felt were appropriate as revealed by the investigation. He interviewed 25 to 30 persons and reported to Walker and Toney that in his opinion there was no independent evidence to substantiate the charges and recommended that they be dropped. Walker refused to dismiss the charges, and the college administrators took the position that disciplinary proceedings could be dropped only at the request of Walker. This was contrary to prior practice as exemplified by the case of faculty member Cecil Coleman, against whom disciplinary action had been dismissed without the consent of the complaining party.

A three-member panel to hear the complaint was then selected by lot. Walker objected to the makeup of the panel. The panel did not proceed. As a result of Walker's refusal to dismiss and objections to the panel, the charges remained unresolved until December 2, 1970--a period of eight months. Such a long-standing request for discipline has adverse effects upon the career of a person in higher education.

On December 1, 1970, Toney was notified by Dr. Baxter, who had replaced Falk as president of the college, that he would not be rehired for the following academic year. No express reason was given for the decision not to retain Toney, and it was made despite very high recommendations from Toney's colleagues in the chemistry department. Apparently his technical qualification as an instructor in chemistry was not in issue.

On December 2, 1970, one day after Toney was notified that he would not be rehired, Walker caused the disciplinary charges to be dismissed.

Shortly after April 1, 1970, Toney complained to the Office of Fair Employment Practices of the State of California that his suspension and the disciplinary proceedings against him were being pursued because of racial bias of Fresno State officials, including Falk, Fikes and Baxter. Simon Connelly of that office...