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Court of Appeal, Third District, California.

CALIFORNIA TEACHERS ASSOCIATION et al., Plaintiffs and Respondents, v. STATE of California et al., Defendants and Appellants.

No. C019678.

Decided: November 24, 1997

Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Senior Assistant Attorney General, Linda Cabatic Supervising Deputy Attorney General, Michelle Gluck and Karen Leaf, Deputy Attorneys General, for Defendants and Appellants. Tuttle & McCloskey and Ernest H. Tuttle III, Fresno, for Plaintiffs and Respondents.

The State of California and Kathleen Connell, in her capacity as State Controller, appeal from a judgment granting a peremptory writ of mandate in favor of the California Teachers' Association (CTA) and Gary Daloyan.   In its judgment the trial court found to be unconstitutional a provision of the Education Code which imposes upon a dismissed teacher one-half of the costs of a hearing before a commission on professional competence.  (Ed.Code, § 44944, subd. (e).)  We agree with the trial court that the challenged portion of this section violates the teacher's Fourteenth Amendment right to due process of law and thus shall affirm the judgment.


This dispute arose out of proceedings involving the dismissal of Daloyan as a certificated employee of the Lincoln Unified School District.   Daloyan was first employed by the school district in 1971.   In 1986, some 15 years later, he was served with a “Notice of Intention to Immediately Suspend and Dismiss.”  (Ed.Code, § 44941.)   He requested and was accorded a hearing before a commission on professional competence.  (Ed.Code, §§ 44941, 44943, 44944.)

A commission on professional competence is composed of one member selected by the employee, one member selected by the governing board of the school district, and an administrative law judge of the Office of Administrative Hearings who serves as chairperson and who is responsible for protecting the legal rights of the parties.  (Ed.Code, § 44944, subd. (b).)  The commission on professional competence acts by majority vote and is required to render a written decision containing findings of fact, determinations of issues, and a disposition.  (Ed.Code, § 44944, subd. (c).)  In a dismissal action the disposition is limited to whether or not the employee should be dismissed;  the commission has no authority to impose probation or other alternative sanctions.  (Ed.Code, § 44944, subd. (c).)  In a suspension action the disposition is limited to whether the employee should be suspended without pay for a specific period of time, or should not be suspended.  (Ibid.)

The evidentiary basis for Daloyan's dismissal is irrelevant here;  it is sufficient to note that the commission found that Daloyan did not engage in immoral conduct as charged by the school district but that he did demonstrate evident unfitness for service.  (Ed.Code, § 44932.)   In 1987, by decision of the commission on professional competence, Daloyan was dismissed from his employment.

Education Code section 44944, subdivision (e), provides, in relevant part:  “If the Commission on Professional Competence determines that the employee should be dismissed or suspended, the governing board and the employee shall share equally the expenses of the hearing, including the cost of the administrative law judge.  ․ The employee and the governing board shall pay their own attorney fees.”  (Emphasis added.)   In the event the commission determines that the employee should not be dismissed or suspended, then the governing board pays all the expenses of the hearing as well as reasonable attorney fees incurred by the employee.  (Ed.Code, § 44944, subd. (e).)

Following the decision of the commission on professional competence, the Department of General Services sent Daloyan a bill for $7,747.97, purportedly representing his share of the expenses of the hearing.   Daloyan failed to pay the bill.   The matter apparently remained dormant for the next several years, until October 1992, when the Department of General Services notified Daloyan that his name would be submitted to the California Franchise Tax Board for a tax refund offset pursuant to Government Code section 12419.5.1  In March and April 1993, Daloyan received notices that his state tax refunds for the years 1991 and 1992, in the amounts of $55.55 and $777 respectively, were applied as offsets for the amount due as his share of the hearing expenses.

Daloyan, joined by the CTA, filed a petition for a writ of mandate and complaint for declaratory relief.   They alleged that Education Code section 44944, subdivision (e), is unconstitutional and void on its face because it places an undue burden and infringement on the right to due process in a dismissal proceeding, and that in any event the statute of limitations barred any collection action against Daloyan.   The trial court agreed that Education Code section 44944, subdivision (e), is unconstitutional and granted a peremptory writ of mandate.   The defendants appeal.


The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law․”  In Rankin v. Independent School Dist. No. I-3 (10th Cir.1989) 876 F.2d 838, the federal court of appeals held that an Oklahoma statute, which was markedly similar to Education Code section 44944, subdivision (e), violated the federal due process clause.2  The Rankin court concluded “that the statute challenged here is unconstitutional on its face because it imposes a significant and unjustified open-ended penalty on the exercise of a constitutional right.”  (Id. at p. 841.)   The parties dispute the validity and applicability of that decision here.   We find the rationale of the decision in Rankin unpersuasive and accordingly decline to adopt it.   Nevertheless, because we agree with the trial court, and with the result reached in Rankin, we shall affirm the judgment.

In Rankin, the court found that the Oklahoma statute imposed a substantial burden on the right to procedural due process and therefore had to be justified by a compelling state interest and had to be narrowly tailored to impose no greater a burden than necessary.  (876 F.2d at p. 840.)   Since no specific state interest, compelling or otherwise, was shown, it followed that the statute was unconstitutional.  (Ibid.)

It is difficult, if not close to impossible, for a state to meet the compelling state interest or strict scrutiny test applied in Rankin.   Thus, in all but the most rare of cases, the conclusion that the compelling state interest test is applicable foreordains the result.   Accordingly, in most cases of constitutional adjudication, the pivotal question concerns the test to be used to make the constitutional measurement.   The Rankin court applied the compelling state interest test with little explanation or examination of why that test was applicable.   In our view, that test is not applicable to the challenged statute.

 The compelling state interest or strict scrutiny test is a standard of judicial review that finds its most frequent application in cases involving equal protection or substantive due process challenges to legislation.  (See Shapiro v. Thompson (1969) 394 U.S. 618, 634, 641-642, 89 S.Ct. 1322, 1331, 1335-1336, 22 L.Ed.2d 600, 615, 619;  Bolling v. Sharpe (1954) 347 U.S. 497, 499, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884, 886-887;  see also 8 Witkin, Summary of Cal. Law (9th ed.   1988) Constitutional Law, § 602, pp. 55-56.)   Legislation is generally evaluated under a rational basis test with deference to the legislative judgment, but where a legislative classification involves suspect classifications or touches on fundamental constitutional interests then strict judicial scrutiny is required and the distinction drawn by the law must serve a compelling state interest and be necessary to serve that purpose.3  (See Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198;  Weber v. City Council (1973) 9 Cal.3d 950, 958-959, 109 Cal.Rptr. 553, 513 P.2d 601;  Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 16-17, 95 Cal.Rptr. 329, 485 P.2d 529.)   To the extent the Rankin court drifted into equal protection principles in its procedural due process discussion, or applied some “amalgam of the equal protection and due process guaranties,” it erred in finding the compelling state interest test applicable.  (Harrah Independent School Dist. v. Martin (1979) 440 U.S. 194, 196-200, 99 S.Ct. 1062, 1063-1065, 59 L.Ed.2d 248, 253-255.)   Defendants concede that as a tenured teacher, Daloyan had a property interest in his employment which is protected by the due process clause.   Nevertheless, although a tenured teacher's interest in his or her job is significant and is entitled to due process protection, it involves neither a fundamental constitutional interest nor a suspect classification.  (Ibid.) As we held in Graham v. Kirkwood Meadows Pub. Util. Dist. (1994) 21 Cal.App.4th 1631, 26 Cal.Rptr.2d 793, “there is no fundamental constitutional right to continued public employment so as to trigger strict scrutiny․”  (Id. at p. 1645, 26 Cal.Rptr.2d 793;  see also Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 503, 55 Cal.Rptr. 401, 421 P.2d 409.)   This distinction between a property interest protected under the due process clause and a fundamental constitutional right was clearly drawn in Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 177 Cal.Rptr. 566, 634 P.2d 917.   There the California Supreme Court noted that “[p]laintiff's reliance on this line of procedural due process cases appears to rest upon an assumption that whenever a ‘property’ or ‘liberty’ interest is accorded the protections of procedural due process, that interest becomes a ‘fundamental constitutional right’ so that legislative measures regulating such an interest are necessarily subject to strict scrutiny.   This assumption is totally unfounded.   Recent decisions have established that the whole panoply of ordinary property rights are generally protected from summary termination or deprivation by procedural due process [citations] but no case has even remotely suggested that the constitutionality of substantive legislative measures regulating or restricting such ‘protected property’ rights are to be judged under a ‘strict scrutiny standard.’ ”  (Id. at p. 81, 177 Cal.Rptr. 566, 634 P.2d 917.)

The compelling state interest or strict scrutiny test is generally anomalous in procedural due process adjudication.   In procedural due process litigation the issues are whether the affected party has an interest that is entitled to due process protection and, if so, the nature of the process that is due.  (Board of Regents v. Roth (1972) 408 U.S. 564, 570-571, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548, 557.)   Where the affected party has a protected interest, and there can be no doubt that a tenured teacher has such an interest, then the applicable minimum procedural requisites depend upon a complexity of factors, including the government function involved, the nature of the private interest affected, and the burdens and benefits of the challenged aspect of a procedure.  (Mathews v. Eldridge (1976) 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18, 33;  see also Smith v. Organization of Foster Families (1977) 431 U.S. 816, 848-849, 97 S.Ct. 2094, 2111-2112, 53 L.Ed.2d 14, 37-38;  Hannah v. Larche (1960) 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, 1321.)   As commentators have observed, “[a]ll courts must now employ the Mathews v. Eldridge balancing test to determine the type of procedures that are required by due process when a governmental action would deprive an individual of a constitutionally protected liberty or property interest.”  (2 Rotunda & Nowak, Treatise on Constitutional Law (2d ed.1992) § 17.8, p. 663.)   This involves a weighing process and the government is not required to justify with a compelling state interest every aspect of the process the affected party finds burdensome.  (Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 848-849, 97 S.Ct. at pp. 2111-2112, 53 L.Ed.2d at pp. 37-38;  Board of Regents v. Roth, supra, 408 U.S. at pp. 570-571, 92 S.Ct. at pp. 2705-2706, 33 L.Ed.2d at p. 557.) 4

 Since the Rankin court applied the compelling state interest test without explaining why that test is applicable, and since we find that test generally inapplicable in a procedural due process context, we do not find the reasoning of the Rankin decision to be persuasive.   Nevertheless, we agree with the trial court, and with the result in Rankin, that the statute in question does not pass constitutional muster.   In reaching this conclusion we are guided by a trilogy of decisions of the United States Supreme Court.

In Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, it appeared that the average cost for bringing an action for divorce in Connecticut was $60 and certain welfare recipients complained that they were precluded from obtaining divorces because they could not afford the fees.   In considering the validity of the fees as applied to the plaintiffs, the high court found two factors pivotal.   First, the marriage relationship is an interest of basic importance in our society, that is, it occupies a basic position in our society's hierarchy of values.  (Id. at pp. 374, 376, 91 S.Ct. at pp. 784, 785, 28 L.Ed.2d at pp. 116, 118.)   Second, the state had completely monopolized the means for legally dissolving the relationship;  there was no known mechanism by which spouses could divorce without invoking the state's legal machinery.  (Ibid.) Given these critical factors, the court held that the Connecticut statutes denied due process of law to indigent persons by refusing to permit them to bring divorce actions except on payment of court fees and service of process costs which they were unable to pay.   While emphasizing that its holding was narrow, the court concluded that the state could not preempt the right to dissolve the legal relationship of marriage without according access to the means for doing so to all citizens.   (Id. at pp. 382-383, 91 S.Ct. at pp. 788-789, 28 L.Ed.2d at p. 122.)

In United States v. Kras (1973) 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626, a provision of the bankruptcy law required, as a condition of discharge, the payment of fees amounting to $50, and the indigent petitioner objected that he could not afford the fees to obtain a discharge.   The court distinguished its decision in Boddie and upheld the imposition of the fees.   First, although the bankrupt's interest in obtaining a bankruptcy discharge was important, it was not on the same constitutional level as the fundamental interest involved in Boddie.  (409 U.S. at p. 445, 93 S.Ct. at p. 636, 34 L.Ed.2d at pp. 635-636.)   Second, the government did not monopolize the means for adjustment of debtor-creditor relationships.  (Ibid.) “However unrealistic the remedy may be in a particular situation,” the court stated, renegotiation, statutes of limitation, and other nonbankruptcy alternatives existed.  (Ibid.) Accordingly, the decision in Boddie was not controlling.  (Ibid.)

In Ortwein v. Schwab (1973) 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572, the State of Oregon imposed a $25 filing fee as a condition of obtaining appellate review of an agency decision in a public assistance matter.   Once again the high court upheld the fee, finding Kras rather than Boddie to be controlling.   In Ortwein, the pivotal fact was that the complaining parties had already been accorded, at no cost, the fair hearings that due process required and they were then seeking appellate review of the decisions reached in their agency hearings.   Their interest in obtaining increased welfare payments through appellate review was of far less constitutional significance than the interest of the Boddie appellants, and appellate review was not necessary to provide the minimum procedural safeguards required by due process principles.  (410 U.S. at pp. 659-660, 93 S.Ct. at pp. 1174-1175, 35 L.Ed.2d at pp. 575-576.)

In all of these decisions the parties complaining about the imposition of fees were affirmatively seeking some form of relief in a government controlled forum.   In Boddie and Kras the complaining parties were in fact in the position of a “plaintiff” and in Ortwein the complaining parties were invoking procedures additional to those required by due process principles.   Only Boddie presented a successful challenge to the imposition of fees.   We have already noted the factors that supported this result, those being the significance of the interest at issue and the state's monopolization of the means of obtaining relief.   But the Boddie court did not jump directly from these factors to the invalidation of the fees.   Instead, the court noted that generally a plaintiff has the choice of whether to resort to an official forum, “[b]ut the successful invocation of this governmental power by plaintiffs has often created serious problems for defendants' rights.   For at that point the judicial proceeding becomes the only effective means of resolving the dispute at hand and denial of a defendant's full access to that process raises grave problems for its legitimacy.”  (401 U.S. at pp. 375-376, 91 S.Ct. at pp. 784-785, 28 L.Ed.2d at pp. 117-118.)   Accordingly, due process adjudication has typically involved rights of defendants rather than persons affirmatively seeking access to the judicial process in the first instance.  (Ibid.) In the narrow circumstances presented, the Boddie court found that the would-be plaintiffs' position was akin to that of defendants facing exclusion from the only forum empowered to settle their disputes and that their contention should be resolved in light of the principles normally applicable to defendants.  (Id. at pp. 376-377, 91 S.Ct. at pp. 785-786, 28 L.Ed.2d at p. 118.)   It was in that light that the imposition of access-barring fees was impermissible.

Because of the procedural posture of the parties in this case we find it unnecessary to rely upon the precise factors the United States Supreme Court found determinative in Boddie, Kras and Ortwein, in order to hold that Boddie rather than Kras or Ortwein is the more analogous case.   Here, regardless of the terminology employed, when the school district sought to terminate Daloyan's employment, he was placed in the position of a defendant.   In short, Daloyan was vested with a property interest in his job and the school district was affirmatively attempting to strip him of that interest by proffering charges against him.   In serving the notice of intention to dismiss Daloyan, the school district chose the forum and commenced the proceeding.   At that point a hearing before a commission on professional competence became “the only effective means of resolving the dispute at hand and denial of a defendant's full access to that process raises grave problems for its legitimacy.”  (Boddie v. Connecticut, supra, 401 U.S. at p. 376, 91 S.Ct. at p. 785, 28 L.Ed.2d at pp. 117-118.)

This conclusion is not altered by the fact that under the Education Code the teacher is the party who must request a hearing before a commission on professional competence.  (Ed.Code, § 44937;  see also Gov.Code, § 11506.)   Due process requires an opportunity for a hearing rather than that a hearing actually be held and accordingly the state can treat a failure to request a hearing after adequate notice to be a waiver or default.  (Boddie v. Connecticut, supra, 401 U.S. at p. 378, 91 S.Ct. at p. 786, 28 L.Ed.2d at p. 119.)   However, after charges are proffered, a request for a hearing is the only avenue open to the teacher for resolving the dispute and in that hearing he or she is in the position of a defendant regardless of a procedural rule that requires the teacher to demand the right to be heard.5

 Likewise, our conclusion is not changed by the fact that the Education Code hearing procedures may accord a teacher more rights and greater procedural safeguards than the minimum requisites of due process.   Due process is a flexible concept and states are free to prescribe their own procedures provided they comply with the minimum demands of the federal Constitution.   (See Mathews v. Eldridge, supra, 424 U.S. at pp. 348-349, 96 S.Ct. at pp. 909-910, 47 L.Ed.2d at p. 41.)   However, where a procedure fails to meet all of the minimum constitutional requisites, it is no answer that in some other respect the procedure is more than is constitutionally required.  (Ibid.)  A hearing before a commission on professional competence is the only remedy available to a teacher to defend against an attempt to terminate his employment and thus a teacher forced to settle his claims of right and duty through such a process must be given a meaningful opportunity to be heard.  (Boddie v. Connecticut, supra, 401 U.S. at p. 377, 91 S.Ct. at p. 785. 28 L.Ed.2d at p. 118.) 6

When we consider the statutory scheme in question under principles of due process applicable to defendants, we find the following factors significant:

(1) This case does not involve a claim for state-paid aid or assistance in making the opportunity to be heard more effective.   Such a situation would be presented where a defendant sought such things as appointed counsel, an interpreter, appointment of an expert, or investigative funds.  (See, e.g., Lassiter v. Department of Social Services (1981) 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640;  Little v. Streater (1981) 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627;  Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 216 Cal.Rptr. 425, 702 P.2d 583;  Jara v. Municipal Court, supra, 21 Cal.3d 181, 145 Cal.Rptr. 847, 578 P.2d 94;  Payne v. Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565.)   Although in some unusual circumstances the courts have agreed with such claims (see Little v. Streater, supra, 452 U.S. at p. 16, 101 S.Ct. at p. 2210, 68 L.Ed.2d at p. 638;  Payne v. Superior Court, supra, 17 Cal.3d at p. 924, 132 Cal.Rptr. 405, 553 P.2d 565), generally there are alternatives, such as appearing in propria persona, and the denial of the aid or assistance claimed does not necessarily equate with the denial of a meaningful opportunity to be heard within the meaning of the Constitution (see Lassiter v. Department of Social Services, supra, 452 U.S. at p. 32-33, 101 S.Ct. at p. 2162-2163, 68 L.Ed.2d at p. 652;  Jara v. Municipal Court, supra, 21 Cal.3d at p. 186, 145 Cal.Rptr. 847, 578 P.2d 94).   In contrast, in this case we are concerned with a statutory scheme that imposes a substantial monetary obligation on an accused teacher for exercising the constitutional right to a due process hearing.   Such a teacher has no alternative in order to exercise the right to be heard, and thus if he or she is unwilling or unable to undertake such an obligation the right to be heard will be denied altogether.7

(2) The amount of the obligation is open-ended.   After requesting a hearing, an accused teacher has little or no control over the costs to be imposed.   The teacher cannot limit the school district's prosecution of the charges and can limit his or her response only at the risk of failing to be fully heard.   Thus, the decision to exercise the right to a hearing imposes an indeterminate but substantial potential obligation upon an accused teacher.

(3) The costs imposed on a dismissed teacher are substantial.   The fees in Boddie ($60), Kras ($50) and Ortwein ($25), were both determinate and modest, while here the costs must be considered substantial by any measure.   In Daloyan's case the bill submitted to him was for $7,747.97, which is a considerable sum, particularly for a person who has just been terminated from his employment.8

(4) There is no provision in the law for abatement of all or part of the costs based upon the ability to pay or other exceptional factors.

(5) There is no provision in the law for apportionment or abatement of the costs when the teacher prevails in part.   In this case Daloyan was charged with evident unfitness for service as well as immoral conduct.   The charge of immoral conduct provided a constitutional basis for the right to be heard independent of Daloyan's tenured status.  (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 346, 159 Cal.Rptr. 440.)   And in that respect Daloyan prevailed, since the commission found that charge to be unproven.   Nevertheless, the unabated costs of the hearing were imposed upon Daloyan because he did not prevail in toto and was dismissed from his employment.

(6) The imposition of costs under Education Code section 44944, subdivision (e), does not depend upon a finding of any kind of conduct at the hearing that might be regarded as sanctionable.   Adjudicatory bodies, whether judicial or administrative, are not required to tolerate misconduct by the parties to a dispute and thus sanctions may be imposed for a wide variety of conduct such as discovery violations, delaying or harassing tactics, raising and pursuing frivolous issues, and, of course, contemptuous conduct.   But the fees imposed under Education Code section 44944, subdivision (e), do not depend upon such conduct.   They are imposed if the teacher fails to prevail regardless of the teacher's good faith, the arguable merit of his or her position, or how reasonably he or she pursues the matter.

When we consider the totality of these factors we are satisfied that the relevant portion of the challenged statute, Education Code section 44944, subdivision (e), places too great a burden on a teacher's exercise of his or her constitutional right to due process of law.   Accordingly, we hold that the portion of Education Code section 44944, subdivision (e), imposing half of the expenses of the hearing upon the employee violates the procedural due process of law guarantee of the Fourteenth Amendment and consequently is unconstitutional.

We emphasize that under this statutory procedure the government is the moving party seeking the affirmative relief of depriving the teacher of his or her property interest in employment, and the hearing before a commission on professional competence is the initial, first-level hearing at which a teacher can exercise the constitutional right to be heard.   It is unquestionably the government's constitutional duty to provide an accused, tenured teacher with at least an initial, first-level opportunity to be heard and that duty is not satisfied where the exercise of the right to be heard is accompanied by the threat of the imposition of substantial, open-ended financial burdens.

We have considered the state's asserted justification for the statutory scheme and find no state interest entitled to constitutional weight.   We are told that the state “has a financial interest in preventing a proliferation of meritless hearings at the state's expense.”   It bears reiteration that in a proceeding to dismiss a tenured teacher the school district is the moving party and the teacher is in the position of a defendant.   A hearing before a commission on professional competence, as we have emphasized, is the first hearing at which the accused teacher is accorded the constitutional right to be heard.   It is the state's constitutional duty to provide an opportunity to be heard before a teacher may be stripped of his or her property interest in employment.   Consistent with principles of due process, the state can have no legitimate interest in denying a teacher a meaningful opportunity to be heard regardless of the strength of the school district's position or how meritless the teacher's defense may ultimately prove to be.

In concluding that the imposition of a portion of the costs of a due process hearing upon a dismissed teacher under Education Code section 44944, subdivision (e), fails to meet constitutional requirements of due process, we have considered the scheme in its totality.   We need not, and hence do not, hold that no costs can be imposed upon a teacher in connection with a hearing before a commission on professional competence.   Nor do we hold that modification of the statutory scheme with respect to one or more of the factors we have addressed would salvage the scheme.   We hold only that the statutory scheme as presently constituted fails to satisfy the demands of the due process clause of the Fourteenth Amendment.


The judgment is affirmed.

I dissent.

Because the state has “no legitimate interest in denying a teacher [threatened with discharge] a meaningful opportunity to be heard” (maj. opn. p. 269), the majority holds Education Code section 44944, subdivision (e) (section 44944(e)) on its face violates the Fourteenth Amendment in that it “places too great a burden on a teacher's exercise of his ․ constitutional right to due process of law” (maj. opn. p. 269).   In reaching this conclusion, the majority relies principally upon Boddie v. Connecticut (1971) 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113.   In Boddie, the high court held unconstitutional as applied to the plaintiff, Boddie, an indigent, a Connecticut statute that required payment of court fees and costs averaging $60 as a condition of bringing an action for divorce.   It was undisputed that because he was indigent, Boddie could not pay the statutory fees and costs and, as a result, he was unable to bring a divorce action in the Connecticut courts.

Daloyan, the discharged teacher in this case, is an unlikely poster boy for the principle announced in Boddie.   Whereas Boddie was denied access to the Connecticut courts because of his inability to pay statutory fees and costs, section 44944(e) did not deny Daloyan access to the hearing process.   Indeed, Daloyan received notice and was afforded the hearing provided by Education Code section 44944, the fairness and adequacy of which he does not dispute.   Contrary to the majority's assertion, section 44944(e) did not “place too great a burden on [Daloyan's] exercise of his ․ constitutional right to due process of law.”  (Maj. opn. p. 269.)   In fact, it burdened him not at all.   Undoubtedly for that reason, Daloyan does not attack section 44944(e) as applied, because as it was applied to him, it deprived him of nothing to which he was constitutionally entitled.

Daloyan attacks section 44944(e) on its face.   In that posture, he must show that under no circumstances can the statute be applied without violating the Constitution.  (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)   Since the statute provides for notice and hearing, Daloyan must show it is constitutionally flawed in some way not involving those two defining hallmarks of procedural due process.   Relying on Boddie, Daloyan contends section 44944(e) is facially unconstitutional because it requires that a teacher, whose discharge is upheld by the hearing tribunal, share the cost of the hearing equally with the employer.  Boddie offers no support for this proposition.   The plaintiff in Boddie was relieved from the financial burden imposed by the Connecticut statute because he was indigent.   So far as the record shows, Daloyan is not indigent and may be as rich as Croesus.   While it is abundantly clear that Daloyan does not want to pay his share of the hearing costs, the desire to avoid a financial exaction is not equivalent to the inability to pay it.   Daloyan's argument thus comes down to this:  one who defends against a threatened infringement by the state of a constitutionally protected interest, irrespective of his financial ability to bear the cost, has a constitutional right, as a function of due process, to notice and a hearing at the taxpayer's expense.

The existence of the rule for which Daloyan contends would no doubt come as a great shock to the hosts of nonindigent litigants, past and present, who have sought vindication against state incursions upon their constitutionally protected interests, perforce, at their own expense.   For example, a plaintiff who unsuccessfully prosecutes a civil rights action against the government must not only bear his own costs but those of the prevailing government defendant.  (28 U.S.C. § 1915, subd. (e);  Flint v. Haynes (4th Cir.1981) 651 F.2d 970;  and see Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297, 262 Cal.Rptr. 754 [prevailing governmental defendant in inverse condemnation action involving a claim of governmental deprivation of protected property interest is entitled to an award of costs against the unsuccessful plaintiff].)

While it is true that one cannot be denied access to a forum in which to vindicate a constitutionally protected interest because of the inability to pay required fees and costs, that is not this case.   In this case Daloyan, after availing himself of the forum, seeks to turn that principle on its head, arguing that the state, as a function of due process, must foot the entire bill for his unsuccessful effort despite the fact that, on this record, it must be assumed he is financially able to pay the costs imposed upon him by section 44944(e).

Even if the costs are “substantial,” as asserted by the majority, Daloyan cites no authority for the proposition that a litigant seeking to vindicate a constitutionally protected interest who is able to pay such substantial costs must nevertheless be excused therefrom.   In any event, whether or not the costs are substantial, they are directly related to the cost of the proceeding and thus to the benefit received and hence are neither arbitrary nor unlimited.

Moreover, the claim the statute is facially unconstitutional because it lacks an explicit mechanism for waiving fees and costs for indigents is a red herring because Daloyan is not indigent.   Also unpersuasive is the assertion the statute is constitutionally flawed because it lacks any provision for partial abatement of costs in favor of the teacher who partially prevails.   Implicit in this argument is the assumption that our statutory regime of cost shifting in favor of the prevailing party is constitutionally mandated.   I know of no authority for such a proposition and hence no reason why the Legislature may not reasonably conclude that the allocation of costs should be determined by the ultimate outcome of the case, i.e., whether or not the discipline, as distinct from the entire charge, is sustained.

Finally, the state does have a legitimate interest in requiring the teacher to share the costs of an unsuccessful challenge to the imposition of discipline.   No one knows better than intermediate appellate judges the utility of disincentives as a counter balance to the benefits of litigation if the judicial resources provided by the state are not to be stretched to the breaking point.   Even those contemplating a federal civil rights action, indigents included, “are routinely forced [by the potential shifting to them of the costs of a losing effort] to decide whether their claim is worth it.”   (Flint v. Haynes, supra, 651 F.2d at p. 973.)   In fact, it is well that litigation is so costly, else we should grow too fond of it.1

I would reverse the judgment and instruct the trial court to enter judgment for the defendant.



1.   Government Code section 12419.5 provides:  “The Controller may, in his or her discretion, offset any amount due a state agency from a person or entity, against any amount owing that person or entity by any state agency.   The Controller may deduct from the claim, and draw his or her warrants for the amounts offset in favor of the respective state agencies to which due, and, for any balance, in favor of the claimant.   Whenever insufficient to offset all amounts due state agencies, the amount available shall be applied in such manner as the Controller, in his or her discretion, shall determine.   If, in the discretion of the Controller, the person or entity refuses or neglects to file his or her claim within a reasonable time, the head of the state agency owing the amount shall file the claim on behalf of that person or entity.   If approved by the Controller, the claim shall have the same force and effect as though filed by that person or entity.   The amount due any person or entity from the state or any agency thereof is the net amount otherwise owing that person or entity after any offset as provided in this section.  [¶] For purposes of this section, an amount owing to a person or entity by any state agency shall include any tax refund.  [¶] This section shall not apply to payment of on-line game prizes of ninety-nine dollars ($99) or lower by California State Lottery Retailers pursuant to subdivision (a) of Section 8880.32.”

2.   The primary distinction between Education Code section 44944, subdivision (e), and the Oklahoma statute involved in Rankin was that the Oklahoma statute required a teacher facing dismissal to share the cost of the hearing regardless whether he or she prevailed.   Although the defendants attempt to distinguish Rankin on this basis, since we do not rely upon Rankin we need not address this distinction.

3.   It has been noted that in a number of modern cases, the United States Supreme Court has applied an intermediate test and thus “has not employed either the traditional rational basis or compelling interest standard.”  (3 Rotunda & Nowak, Treatise on Constitutional Law (2d ed.1992) § 18.3, p. 16.)   As these commentators note, “[t]he Supreme Court has used this intermediate standard of review in cases involving gender classifications and cases involving illegitimacy classifications.”  (Id. at p. 17.)   We are not concerned here with that standard of review.

4.   It has been suggested that the compelling state interest test would be applicable if the state were attempting to justify the outright denial of the right to procedural due process based upon some classification or distinction.  (See Payne v. Superior Court (1976) 17 Cal.3d 908, 914, 132 Cal.Rptr. 405, 553 P.2d 565.)   However, that rule cannot apply unless it is first determined that the state action, or refusal to act, amounts to an outright denial of the right to procedural due process for some individuals.  (See Jara v. Municipal Court (1978) 21 Cal.3d 181, 186, 145 Cal.Rptr. 847, 578 P.2d 94.)   An outright denial of the right to due process cannot be found until it is first determined what the right entails, that is, what process is due under the circumstances of the case.   That question must be resolved under the weighing test we have outlined above.   It is the Rankin court's leap straight to the compelling state interest test, without explaining how it got there, that we find lacking.Other than the occasional suggestion that a compelling state interest might justify the complete denial of procedural due process, the nearest thing to that test in procedural due process adjudication is the rule that an extraordinary situation where some valid governmental interest is at stake may justify postponing (but not denying altogether) the procedural safeguards that otherwise must precede significant deprivation.  (See Board of Regents v. Roth, supra, 408 U.S. at p. 570, fn. 7, 92 S.Ct. at p. 2705, fn. 7, 33 L.Ed.2d at p. 556, fn. 7;  Bell v. Burson (1971) 402 U.S. 535, 542, 91 S.Ct. 1586, 1592, 29 L.Ed.2d 90, 96.)   No issue with respect to the timing of an adjudicatory hearing was at issue in Rankin, nor is such an issue presented here.

5.   When a notice is served and the teacher demands a hearing, the governing board has the option of scheduling a hearing or rescinding its action.  (Ed.Code, § 44943.)   Thus, the governing board has alternatives within the meaning of Boddie, Kras and Ortwein.   However, the teacher, as putative defendant, can only waive a hearing and accept dismissal or request a hearing.

6.   The issue might stand in a different light if a teacher was accorded a hearing meeting minimum due process requisites and a hearing before a commission on professional competence was a means of reviewing the result of that procedure.  (See Ortwein v. Schwab, supra, 410 U.S. at p. 659, 93 S.Ct. at p. 1174, 35 L.Ed.2d at p. 576.)   The situation might also stand on different footing if multiple remedies were provided and the choice of the more formal, and potentially costly, procedure were relegated to the teacher.  (See Samaan v. Trustees of Cal. State University & Colleges (1983) 150 Cal.App.3d 646, 656-659, 197 Cal.Rptr. 856.)   But where, as here, a teacher chooses to defend himself and his property interests in the only forum available to him then his due process rights must be adjudicated under general principles applicable to defendants.

7.   The statutory scheme does not require the teacher to pay for the hearing up front and in the event the teacher prevails he or she is relieved of the burden of paying for the hearing.   Nevertheless, under the statutory scheme it is the act of requesting a hearing that exposes the teacher to the potential burden of paying for the hearing and it is the effect on the teacher's decision whether to exercise the right to a hearing that must provide the focus for our consideration.

8.   The decision of the commission on professional competence indicates that Daloyan's hearing occurred on 13 nonconsecutive days.   It does not indicate whether those days consisted of full or partial hearing days.   The bill imposed on Daloyan was for an average of $596 per day or partial day of hearing.

1.   Watching his troops engage in a particularly bloody repulse of a Federal attack at Fredericksburg, General Robert E. Lee remarked:  “It is well that war is so terrible[, else we] should grow too fond of it.”  (The Civil War:  A Narrative:  Fredericksburg to Meridian, (Random House 1963) p. 37.)

SPARKS, Associate Justice.* FN* Retired Associate Justice of the Court of Appeal, Third District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

SIMS, J., concurs.

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