STANTON v. DUMKE

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

Dr. William F. STANTON and Dr. Bud R. Hutchinson, Plaintiffs and Appellants, v. Dr. Glenn DUMKE, Chancellor of the State Colleges of California, Dr. John Wahlquist, President of San Jose State College, and the Trustees of the State Colleges of California, Individually and Collectively, Defendants and Respondents.

Civ. 21634.

Decided: April 21, 1965

Thorne, Stanton, Clopton, Herz & Stanek, San Jose, for appellants. Thomas C. Lynch, Atty. Gen., Elizabeth Palmer, Jan Stevens, Deputy Attys. Gen., San Francisco, for respondents.

For Opinion on Hearing, see 49 Cal.Rptr. 380, 411 P.2d 108.

Plaintiffs seek a writ of mandate ordering respondents to restore them to the faculty of San Jose State College as of September 1, 1962. Respondents' general demurrer to the petition was sustained by the superior court without leave to amend. Plaintiffs appeal from the judgment thereupon entered.

Respondents are the Chancellor of the State Colleges of California, the President of San Jose State College, and The Trustees of the State Colleges of California, hereafter referred to as ‘Chancellor,’ ‘President,’ and ‘Trustees,’ respectively.

On this appeal we assume to be true all material and issuable facts properly pleaded in the petition (Flores v. Arroyo, 56 Cal.2d 492, 497, 15 Cal.Rptr. 87, 364 P.2d 263), eliminating conclusions of law and allegations contrary to facts of which we may take judicial notice (Watson v. Los Altes School District, 149 Cal.App.2d 768, 771–772, 308 P.2d 872; Griffin v. County of Colusa, 44 Cal.App.2d 915, 918, 113 P.2d 270), and using such judicially noticed facts as though pleaded in the petition (Watson, supra, 149 Cal.App.2d p. 772, 308 P.2d 872).

Appellants were 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 on June 30, 1962; they would have acquired tenure if employed for a fourth year by contract; they were notified by the President on April 5, 1962 that they would not be so employed.

The charging allegation in appellants' petition is that the failure to rehire them for a fourth year was based upon nonacademic reasons, such as their participation in uncovering and disclosing a secret agreement of state college presidents to exclude southern sit-in students from California state colleges and appellants' membership in and activities on behalf of the San Jose State College Federation of Teachers, a labor union.

Neither the Chancellor nor the President has the legal authority to comply with the requested writ, if issued, and mandamus will not lie against them (Casmalia Sch. Dist. v. Bd. of Supervisors, 180 Cal.App.2d 332, 348, 4 Cal.Rptr. 656; Board of Education v. Council, 1 Cal.App. 311, 312, 82 P. 89; McClatchy v. Matthews, 135 Cal. 274, 276, 67 P. 134). ‘The writ will not be granted to compel the performance of an act where such performance * * * would exceed respondent's legal authority.’ (34 Am.Jur. p. 832; 32 Cal.Jur.2d p. 145.)

The authority in this instance is vested solely in the Trustees. Section 22604 of the Education Code provides in pertinent part as follows: ‘The Trustees of the California State Colleges shall succeed to the powers, duties and functions with respect to the management, administration and control of the state colleges * * *.’ ‘The provisions of this chapter 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 of the Education Code contains the following provision: ‘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.’

Prior to July 1, 1961, such appointments had been made pursuant to section 24202 of the Education Code (repealed by Stats.1961, ch. 1828), which provided in pertinent part 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.’

While the President's favorable recommendation 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 the reappointment of a probationary academic employee for the succeeding academic year, he should so notify such employee not later than April 15th of the academic year for which the employee is then employed. (Title 5, Calif.Admin.Code, § 43302 (formerly § 975.27).) Appellants admit that the notice given on April 5, 1962, ‘was in accord with the statutory requirements.’

Respondents contend that appointments of academic employees during the period of July 1, 1961 to July 1, 1962 continued to require the fovorable recommendation of the President, as provided in former section 24202 of the Education Code. This is on the theory that law was ‘frozen’ during such interim period as to such appointments. We do not agree.

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 Legislature enacted section 24320 of the Education Code, as follows: ‘It is the intent of the Legislature that academic teaching and administrative employees of state colleges shall retain until July 1, 1962, the tenure rights and benefits provided for probationary and permanent employees under the law in effect prior to the time when the Trustees of the California State Colleges succeed to administration of the California State Colleges. It is also the intent of the Legislature that the tenure rights and benefits of such employees will be governed by rules adopted by the trustees on and after July 1, 1962.’ (This section was added by Stats.1961, ch. 1828 and expired under the terms of section 24321 of the Education Code on July 1, 1962.)

It should be noted that section 24320 refers only to tenure rights and benefits. The purpose of the section was to ‘freeze’ the law in this respect during the interim period of July 1, 1961 to July 1, 1962. It does not refer to the appointment of employees.

The appointive power formerly vested in the Director of Education, the State Board of Education, and the President of the College, collectively, under the provisions of section 24202 of the Education Code, was terminated as of June 30, 1961, by the repeal of that section (Stats.1961, ch. 1828). Thereafter, as we have seen, this power was vested solely in the trustees. (Ed.Code, § 22607.)

With regard to appointments made after July 1, 1961, the Legislature contemplated that they would be made pursuant to rules enacted by the Trustees.

Section 24201, as amended in 1961, provides as follows: ‘The trustees shall provide by rule for the government of their appointees and employees, pursuant to the provisions of this chapter and other applicable provisions of law, including, but not limited to, appointment, classification, terms, duties, pay, leave of absence, tenure, vacation, layoff, dismissal, demotion, suspension and reinstatement. The rules adopted by the trustees relating to tenure, layoff, dismissal, demotion, suspension, and reinstatement of academic and administrative employees shall be adopted on or before February 1, 1962 and become effective on July 1, 1962, with respect to employees who are academic teaching and administrative employees * * *.’ (italics added).

The ‘appointment’ of employees, while included in the first sentence of section 24201, is excluded in the ‘delay provision’ contained in the second sentence. The inclusion of ‘tenure’ in the second sentence is consistent with the ‘freezing’ provision as to ‘tenure rights and benefits,’ contained in section 24320 of the Education Code, discussed above.

For the foregoing reasons, we have concluded that on and after July 1, 1961 the Trustees had the power to appoint or not appoint a probationary teacher for the academic year 1962–63 with or without a favorable recommendation by the president of the college.

Appellants allege that on October 23, 1961 they requested a grievance hearing before the Chancellor based upon a letter of May 31, 1961 sent by the President to them. This letter stated: ‘[I]t is not our plan to continue your services beyond the Spring Commencement, 1962. This, of course, is subject to review during the 1961–62 academic year.’

Hearings were held before the Chancellor on July 16, 1962 and August 14, 1962. The official notice sent by the President on April 5, 1962 was included by the Chancellor in his consideration of the grievance.

The conclusion reached by the Chancellor is as follows: ‘Upon review of the oral and written statements, argument and materials referred to above, it is apparent that the decision of the College was not the product of factors not properly involved in decision of this character. Consequently, the conclusion is that the College's decision is sustained.’

Appellants contend that the hearing before the Chancellor was unfairly and improperly conducted. A reporter was furnished by appellants. The transcript of the first hearing contains 316 pages. It is included in appellants' petition by reference thereto and we have read all of it. The President was questioned at great length. The record amply supports the Chancellor's decision. However, we think that the effect of such decision has been given undue significance.

In the first place, the President's letter of May 31, 1961 has no legal effect. It did not relate to or affect the appellants' current employment contracts for the 1960–61 school year. It clearly indicated that appellants would be rehired for the 1961–62 school year. Appellants' grievance relates only to the announced plan not to rehire them for the school year 1962–63.

In the second place, the notice of April 5, 1962 is limited to the effect placed upon it by the following provision of section 43302 of the Administrative Code, Title 5: ‘If the president fails to give notice as herein required, he shall be deemed to have recommended the reappointment of the probationary academic employee for the succeeding academic year * * *.’

As we have seen, the appointments of academic employees such as appellants are to be ‘made solely at the discretion of the trustees.’ (Ed.Code, § 22607; emphasis added.) The rules under which the grievance hearing was held cannot contravene the statute and they do not purport to do so.

As stated in Tucker v. San Francisco Unified School Dist., 111 Cal.App.2d 875, 882, 245 P.2d 597, 602: ‘It is, of course, true that under the rule-making power the Board has no power to adopt rules that contravene or are inconsistent with the statute. [Citations.]’

The grievance rules were prepared by the Chancellor at the request of the Trustees and were issued by him on August 3, 1961. The preamble recites that they were ‘procedures for handling grievances in the interim immediately before us, pending the establishment by the Board [of Trustees] * * * of regular rules and procedures.’

The rules further state: ‘This procedure is intended as a means through which members of the faculty and administrative personnel may obtain consideration of personnel grievances over which the Trustees have jurisdiction and for which redress is not provided in current law or personnel rules. The purpose of the grievance procedure is to provide a systematic means of obtaining further consideration of grievances after initial efforts have failed to resolve the grievance through informal discussions.’

We come now to the crucial issue before us. That issue is whether mandamus will lie against the Trustees to correct an abuse of their discretion in refusing to reappoint a probationary academic employee. We think that it may. (See Inglin v. Hoppin, 156 Cal. 483, 491, 105 P. 582; 32 Cal.Jur.2d, p. 184.)

Section 22607 of the Education Code specifically covers all academic positions to be filled by the Trustees. It then expressly provides that all appointments to such positions shall be made ‘solely at the discretion of the trustees.’ The word ‘discretion’ is of important significance as used in this statute.

In Kentfield v. Reclamation Board of California, 137 Cal.App. 675, 677, 31 P.2d 431, 433, a state statute discussed therein provided that “[a]ll unpaid assessments * * * shall be paid to the county treasurer in separate installments, in such amounts, and at such times, respectively, as the board, from time to time, in its discretion, may, by an order in its minutes, direct * * *.”

The court, after stating that ‘the right of the petitioner to a writ of mandate * * * revolves around the interpretation of the word ‘discretion,” said: ‘The word ‘discretion,’ however, is not unlimited in its meaning. It must be exercised in view of all the conditions existing at the time the demand is made for its exercise. * * * It means, and it must mean, that the discretion as to the time when the installment may be made, and the amount of the calls to be made, shall be seasonably exercised * * *.' (pp. 681, 682, 31 P.2d pp. 434, 435).

The petition herein does not allege sufficient facts to constitute a cause of action based upon abuse of the discretion vested in the Trustees by section 22607 of the Education Code. However, we have concluded that appellant Stanton should be given an opportunity to do so. We are guided by the following language of the Supreme Court in Lemorge Electric v. County of San Mateo, 46 Cal.2d 659, 664, 297 P.2d 638, 641: ‘In the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment.’ (See also, Byrne v. Harvey, 211 Cal.App.2d 92, 118, 27 Cal.Rptr. 110.)

The legal position of appellant Hutchinson differs from that of appellant Stanton. By letter dated June 25, 1962, Hutchinson resigned his position at San Jose State College ‘as of the end of the 1961–62 academic year.’ He did not appear at the hearings before the Chancellor. His counsel, who also represented Stanton, stated to the Chancellor: ‘There is no intent on the part of Dr. Hutchinson to return to San Jose State and teach, because he has made certain commitments. * * * Those commitments are going to involve his employment elsewhere for a considerable length of time * * *.’ The Chancellor therefore limited the scope of the hearing to appellant Stanton.

Appellant Hutchinson, nevertheless, desires to remain in this action even though he made himself unavailable to accept the benefit sued for, viz., to ‘be restored to the faculty of San Jose State College as of September 1, 1962.’

The rule is well established that ‘A court does not do the vain and foolish thing of ordering an inferior board, officer, or tribunal to do that which accomplishes nothing; it exercises power to issue the writ only when some useful purpose may be accomplished. And a mere abstract right, unattended by any substantial benefit to the petitioner, will not be enforced by mandamus.’ (32 Cal.Jur.2d pp. 137–138, Mandamus, § 13, ‘Effectiveness of Remedy.’)

As held in Clementine v. Board of Civil Commissioners, 47 Cal.App.2d 112, 114, 117 P.2d 369, 370, ‘A writ of mandate will not issue to enforce an abstract right, when the occurrence of an event subsequent to the commencement of the proceeding makes the issuance of the writ of no practical benefit to the petitioner.’ (See also, Coyne v. Superior Court, 80 Cal.App.2d 898, 183 P.2d 36.)

Respondents' motion for summary judgment against appellant Hutchinson was granted. This procedure is applicable to mandamus actions. (Taliaferro v. Coakley, 186 Cal.App.2d 258, 260, 9 Cal.Rptr. 529.) The motion was supported by a declaration setting forth the resignation. Nothing was filed in opposition to the motion.

While the findings of the trial court, upon which the summary judgment is based, state that Hutchinson resigned in order to obtain the money in his accumulated state pension fund, there was no evidence before the trial court to this effect. The finding was apparently based upon an unsworn statement of Hutchinson's counsel at the court hearing. In any event, Hutchinson's motive in resigning is irrelevant in this action.

The summary judgment and the judgment entered upon the sustaining of the demurrer are affirmed as to appellant Hutchinson.

The judgment against appellant Stanton is affirmed as to respondents President and Chancellor and reversed as to respondent Trustees; the cause is remanded and the lower court is directed to allow appellant Stanton a reasonable time to amend his petition as against the Trustees if he shall be so advised.

The parties are to bear their own respective costs on appeal.

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