No. 11-__
In the Supreme Court of the United States
___________
MIRACLE STAR WOMEN’S RECOVERING
COMMUNITY, INC.,
Petitioner,
v.
KATHERINE JETT, IN HER OFFICIAL CAPACITY, AND
THE CALIFORNIA STATE HEALTH AND HUMAN
SERVICES DEPARTMENT OF ALCOHOL AND
DRUG PROGRAMS,
Respondent.
___________
On Petition for Writ of Certiorari to the
Court of Appeal of the State of California
for the Second Appellate District
____________
PETITION FOR WRIT OF CERTIORARI
___________
JEFFREY D. MOFFATT
Counsel of Record
LAW OFFICE OF JEFFREY D. MOFFATT
43625 N. Sierra Hwy, Suite A
Lancaster, CA 93534
(661) 945-6121
jeffreymbajd@hotmail.com
i
QUESTIONS PRESENTED
This Court has repeatedly admonished that when
state courts address federal claims under 42 U.S.C.
§ 1983, they cannot change the remedial scheme that
Congress has provided. Testa v. Katt, 330 U.S. 386,
391 (1947). Part of the Section 1983 remedial scheme
is compensatory damages, which includes an award
of money. Carey v. Piphus, 435 U.S. 247, 256 (1978).
Despite the clarity of federal law in this area, the
California Court of Appeals overturned a jury verdict
awarding
petitioner
close
to
$400,000
in
compensatory damages for the state’s infringement
of petitioner’s federal right to due process. In doing
so, the court below held that monetary damages are
unavailable when state officials violate the federal
rights of its citizens.
The state court’s rule is unique in several respects:
it conflicts with the purpose of 42 U.S.C. § 1983; it is
contrary to several of this Court’s decisions; it
deprives millions of California citizens a state court
forum to litigate abuses of their federal rights; it
grants immunity to state officials where none exists;
and it will drive Section 1983 claims to overburdened
federal district courts.
The question presented is:
Whether a state court, addressing a 42 U.S.C.
§ 1983 claim, can prohibit an award of compensatory
money damages without violating the Supremacy
Clause.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
TABLE OF AUTHORITIES .......................................iv
PETITION FOR WRIT OF CERTIORARI .................1
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL
AND
STATUTORY
PROVISION INVOLVED ...........................................1
STATEMENT OF THE CASE ....................................2
A. State courts and Section 1983 suits ............3
B. Damages for constitutional violations in
California ..........................................................4
C. The Proceedings Below ................................6
REASONS FOR GRANTING THE WRIT ................11
I. THE CALIFORNIA COURT OF APPEAL’S DECISION
PROHIBITING COMPENSATORY DAMAGES FOR A
FEDERAL CONSTITUTIONAL VIOLATION IS AN
AFFRONT TO FEDERAL LAW AND THIS COURT’S
DECISIONS, AND CONTRAVENES THE SUPREMACY
CLAUSE ...................................................................11
II. THE SUPREMACY CLAUSE ISSUE IS OF THE
UTMOST IMPORTANCE .............................................15
III. THE ISSUE IS RIPE FOR REVIEW........................20
CONCLUSION ..........................................................21
iii
APPENDIX
California Court of Appeals' opinion..................App. 1
California Superior Court judgment................App. 14
State of California Department of Alcohol
and Drug Programs' proposed decision
and decision...................................................App. 14
Supreme Court of California order...................App. 35
Petitioner's Fourth Amended Complaint.........App. 36
Brief of Appellee, California Court of Appeal..App. 75
Petition for Review,
California Supreme Court............................App. 85
Brief of Appellant,
California Court of Appeal...........................App. 94
iv
TABLE OF AUTHORITIES
CASES
Allen v. McCurry, 449 U.S. 90 (1980) ................... 4, 17
Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971) ..............................................6, 7
Bonner v. City of Santa Ana,
45 Cal.App.4th 1465 (1996) .................................5, 6
Brown v. Plata, 131 S. Ct. 1910 (2011).....................22
Burnett v. Grattan, 468 U.S. 42 (1984).....................15
Carey v. Piphus, 435 U.S. 247 (1978) ......... 4, 5, 15, 22
Claflin v. Houseman, 93 U.S. 130 (1876) .................13
Felder v. Casey, 487 U.S. 131 (1988) ............ 14, 19, 22
Free v. Bland, 369 U.S. 663 (1962) ...........................14
Howlett v. Rose, 496 U.S. 356 (1990) .................. 14, 16
Johnson v. Fankell, 520 U.S. 911 (1997) ............ 16, 22
Katzberg v. The Regents of the University of
California, 29 Cal.4th 300 (2002)........................6, 7
Martinez v. California, 444 U.S. 277 (1980).............16
McCulloch v. Maryland, 17 U.S. 316 (1819) ............13
Mondou v. New York, New Haven & Hartford R.R.
Co., 223 U.S. 1 (1912) ............................................13
Monroe v. Pape, 365 U.S. 167 (1961) ..........................4
Owen v. City of Independence,
445 U.S. 622 (1980) ................................................19
Robb v. Connolly, 111 U.S. 624 (1884).. .....................4
Smith v. Wade, 461 U.S. 30 (1983) ....................... 5, 15
Testa v. Katt, 330 U.S. 386 (1947) ............................22
v
CONSTITUTIONAL PROVISIONS
U.S. Const. art. VI, Section 2 ......................................1
STATUTES
28 U.S.C. § 1257 ..........................................................1
42 U.S.C. § 1983 ................................................ passim
OTHER AUTHORITIES
2 F. Harper & F. James, Law of Torts § 25.1 (1956)14
Diane Feinstein, Senator Feinstein Introduces
Legislation to Reduce Caseload in Overburdened
Federal Courts, (May 17, 2011) .............................18
Lauren Robel, Impermeable Federalism, Pragmatic
Silence, and the Long Range Plan for the Federal
Courts, 71 IND. L.J. 841 (1996 ...............................18
Myriam E. Gilles, In Defense of Making Government
Pay: The Deterrent Effect of Constitutional Tort
Remedies, 35 GA. L. REV. 845 (2001) .....................17
Paul M. Bator, The State Courts and Federal
Constitutional Litigation, 22 WILLIAM & MARY L.
REV. 605, 606 (1981) ................................................3
Steven H. Steinglass, Section 1983 Litigation in
State Courts § 1:1 (2002) .......................................18
1
PETITION FOR WRIT OF CERTIORARI
Petitioner, Miracle Star Recovering Community,
Inc., respectfully petitions for a writ of certiorari in
this case to review the judgment of the California
Court of Appeal for the Second Appellate District.
OPINIONS BELOW
The opinion of the California Court of
unreported. App. 1. The judgment of the
Superior Court is unreported. App. 14.
denying a petition for review by the
Supreme Court is unreported. App. 35.
Appeal is
California
The order
California
JURISDICTION
The California Supreme Court denied review on
June 15, 2011. This Court granted an extension of
time to file the petition for certiorari to September
28, 2011. See 11A209. This Court’s jurisdiction rests
on 28 U.S.C. § 1257.
CONSTITUTIONAL AND STATUTORY
PROVISION INVOLVED
Article VI, Section 2 of the United States
Constitution provides that:
This Constitution, and the Laws of the United
States which shall be made in pursuance thereof;
and all treaties made, or which shall be made,
under the authority of the United States, shall be
the supreme law of the land; and the judges in
every state shall be bound thereby, anything in
the constitution or laws of any state to the
contrary notwithstanding.
2
Title 42, United States Code, Section 1983
provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any
action brought against a judicial officer for an act
or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or
declaratory relief was unavailable. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia
shall be considered to be a statute of the District
of Columbia.
STATEMENT OF THE CASE
This case arises from a 42 U.S.C. § 1983 suit filed
in state court. Petitioner, Miracle Star Recovering
Community, Inc. alleged and proved that the state
illegally deprived her of a property interest without
due process of law. A jury held the state accountable
and concluded that the state caused petitioner nearly
$400,000 in economic damages. The California Court
of Appeal, however, reversed that award, holding
that monetary damages are unavailable as
compensation for violations of federal constitutional
rights.
3
The Court of Appeal’s ruling is disastrous for the
37 million citizens of California. The decision denies
access to state courts for violations of federal
constitutional rights by removing the availability of
compensatory monetary damages and acts as a
shield of immunity for state officials who commit
egregious violations of federal law. In addition, the
decision disrespects Congressional policies and the
purpose of § 1983 suits; it also ignores several
decisions from this Court. Such a decision, if allowed
to stand, is as dangerous as it is wrong.
As this Court has repeatedly held, the Supremacy
Clause does not afford states the power to disregard
federal law even when it is inconsistent with their
own policies. Because the defiant decision below
conflicts with federal law in a most obvious manner,
because it removes—for millions of people—the state
court as a forum to vindicate violations of federal
law, and because it provides state officials with
immunity from monetary damages where none
exists, the Court should grant review.
A. State courts and Section 1983 suits
There is a long history of state court involvement
in the application of federal constitutional principles.
Indeed, that is the “explicit premise of the supremacy
clause, and has been deeply engrained in our
institutional structures since the beginning.” Paul M.
Bator, The State Courts and Federal Constitutional
Litigation, 22 WILLIAM & MARY L. REV. 605, 606
(1981). Part of the promise of our federalist system is
that on state courts “rests the obligation to guard,
enforce, and protect every right granted or secured
by the Constitution of the United States.” Robb v.
Connolly, 111 U.S. 624, 637 (1884). Because the state
4
courts have a duty—the same as federal courts—to
enforce and apply the federal constitution, this Court
has held that state and federal courts have
concurrent jurisdiction over 42 U.S.C. § 1983 claims.
Allen v. McCurry, 449 U.S. 90, 99 (1980); Monroe v.
Pape, 365 U.S. 167, 183 (1961).
Under Section 1983 every person, who under color
of state law, subjects another person to a violation of
federal rights “shall be liable to the party injured in
an action at law.” (emphasis added). While “[t]he
Members of the Congress that enacted § 1983 did not
address directly the question of damages,” they did
base the statute on the principle that “damages are
designed to compensate persons for injuries caused
by the deprivation of rights.” Carey v. Piphus, 435
U.S. 247, 256 (1978). For this reason, the Court has
held that compensatory money damages are
available for violations of federal rights under §
1983—as are punitive damages. See Carey, 435 U.S.
at 255-58 (compensatory damages), and Smith v.
Wade, 461 U.S. 30, 51-52 (1983) (punitive damages).
By imposing monetary liability for injuries of federal
rights, Congress sent a clear message to anyone who
violates, under the color of state law, the
constitutional rights of another. And, under the
Supremacy Clause, the states may not change that
message.
B. Damages for constitutional violations in
California
Starting with Bonner v. City of Santa Ana, 45
Cal.App.4th 1465 (1996), state courts in California
have become increasingly hostile to the belief that
state constitutional violations allow for monetary
damages. In Bonner, the plaintiff sued for damages,
5
asserting violations of his due process right to
property and of his equal protection rights. The court
there found no intent by the electorate to provide a
damages remedy for violations of the state equal
protection clause, and declined to allow such an
action. Bonner, 45 Cal.App.4th at 1473.
The Bonner court also determined whether
damages were available for due process violations.
The court first reviewed Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971), and noted that
the federal due process clause supports an action for
damages, in the absence of an alternative or equally
effective remedy. The court in Bonner hypothesized
that the voters’ intent in enacting the due process
right set out in the state constitution was to mirror
the due process right recognized in its federal
counterpart. Id. at 1475. The court concluded that in
the absence of an alternative or equally effective
remedy, the state due process clause similarly
provided a right to damages. Id.
In Katzberg v. The Regents of the University of
California, 29 Cal.4th 300 (2002), the California
Supreme Court laid out the standard for determining
whether damages are allowed for various state
constitutional violations. A court will first inquire
whether the constitutional provision at issue
contains “intent either to authorize or to withhold a
damages action to remedy a violation.” Id. at 495. If
no affirmative intent is found, a court will next
undertake the “constitutional tort analysis adopted
by Bivens and its progeny.” Id. That test uses a
number of factors including “whether an adequate
remedy exists, the extent to which a constitutional
tort action would change established tort law, and
the nature and significance of the constitutional
6
provision.” Id. If the court finds factors that favor
damages, the court will then consider “the existence
of any special factors counseling hesitation in
recognizing a damages action, including deference to
legislative judgment, avoidance of adverse policy
consequences, considerations of government fiscal
policy, practical issues of proof, and the competence
of courts to assess particular types of damages.” Id.
In other words, California has made it
significantly harder to obtain damages for a state
constitutional violation than it is to obtain damages
for a federal constitutional violation under § 1983.
As will be shown below, the California Court of
Appeal extended Katzberg to the federal realm, and
in the process, they made it significantly harder to
obtain
compensatory
damages
for
federal
constitutional violations.
C. The Proceedings Below
1. Petitioner, Miracle Star Women’s Recovering
Community, Inc., is a Lancaster, California, nonprofit corporation operating two drug treatment
facilities (property 44664 which was used as the
women and children facility and property 558) and
seeking to add an additional facility (property 556).
App. 21-22. Licensed by the State of California
Health and Human Services Department of Alcohol
and Drug Programs (“Department”) since 1998,
Miracle Star provided residential alcohol and drug
treatment to the disabled citizens of Los Angeles and
surrounding areas. The facility tried to stem the tide
of drug addiction by offering 27 beds—nearly 10,000
“bed days” per year—to people in need of them.
7
Prior to this case, Miracle Star had quarrels with
several state departments over perceived injustices
with the way those state agencies handled drug
treatment referrals. In 2002, Miracle Star acted as a
whistleblower against the California Department of
Corrections. Additionally, Miracle Star filed a
complaint against the Department of Corrections
alleging breach of contract.
A superior court judge issued a Tentative Ruling
in Miracle Star’s favor and noted that defendants
had breached the contract by:
•
•
•
•
•
Intentionally retaliating against Plaintiffs for
exercising the Constitutional rights of free
speech; purposely going above and beyond the
contours of the right to monitor;
Initiating unnecessary investigations;
Discriminating against and humiliating
Plaintiffs by insinuating that Plaintiffs was
[sic] under criminal investigation and that
Plaintiff had been arrested, falsely accusing
Plaintiff of being closed;
Suspending referrals despite finding no
serious contract deficiencies;
Failing to follow procedures for patient
removal;
Tentative Ruling, Case No. BC282335.
2. From 1998 through 2004, the Department
automatically renewed Miracle Star’s license every
two years. But in 2004, the Department declined to
renew the license.
The failure to renew the license was a result of
two minor deficiencies reported by Department
8
inspector Robert Rose. During a routine inspection,
Rose noted two deficiencies requiring correction: a
missing light bulb and a loose trash can lid. Rose
also reported that the Miracle Star facility was
housing “sober living” clients on one floor of the 558
property, which he apparently believed was a
condition outside the terms of the license. App. 22.
On February 3, 2004, Rose sent Miracle Star a
deficiency notice, identifying the missing light bulb
and trash can lid, requesting a fire certification for
the facility 556 (a property that Miracle Star was
hoping to add to its license), and citing Miracle Star
for “operating outside the conditions of its license.”
App. 24. Miracle Star responded on March 1, 2004,
and notified the Department that the deficiencies
were corrected and provided a copy of the fire
certification. App. 24-25. A few days later, Miracle
Star sent the Department a second letter stating
that it was acceptable to house sober living clients at
the treatment facility and citing authority for that
position. The Department failed to respond.
Miracle Star’s license was set to expire on April
30, 2004, so Miracle Star submitted a standard
renewal application. Two weeks later, Miracle Star
received a letter from inspector Rose demanding
receipts proving that the deficiencies were corrected;
receipts for a light bulb and trash can lid were
promptly sent. App. 26. Nevertheless, on May 21,
2004, Miracle Star received a letter from the
Department stating that they would not renew
Miracle Star’s license and that Miracle Star needed
to cease operations immediately. App. 26.
9
In a series of letters sent to the Department and to
the Office of Administrative Hearings, Miracle Star
repeatedly requested a hearing on the Department’s
refusal to renew their license. App. 26-27. When
Miracle Star finally received a response from the
Office of Administrative Hearings, it stated that only
the Department could initiate a hearing.
Despite receiving several notices from Miracle
Star requesting a hearing, the Department failed to
take any steps to initiate a hearing until nearly a
year later. By then, Miracle Star was out of business
because Miracle Star could not operate without
having a renewed license.
3. In December of 2006, an administrative hearing
was held. The administrative court found that there
was insufficient evidence that Miracle Star had
failed to correct the deficiencies, and therefore, cause
did not exist to deny renewal of Miracle Star’s
license. App. 30-32. Shortly thereafter Miracle Star’s
license was renewed.
Miracle Star filed suit against the Department in
state court seeking damages for violations of various
state and federal laws, including for a violation of
federal due process. App. 36. In addition, to state
statutory vehicles, Miracle Star alleged a 42 U.S.C. §
1983 cause of action. App. 55-61. By the time of trial,
the main cause for adjudication was whether the
Department had violated Miracle Star’s federal right
to due process.
The jury returned a special verdict finding that
the Department had failed to provide Miracle Star
with due process and that the failure caused Miracle
10
Star past and future economic damages in the
amount of $392,600. App. 14-16.
4. On appeal, the state acknowledged that the
cause of action decided by the jury was whether the
state
had
violated
Miracle
Star’s
federal
constitutional right of due process. See Brief of
Appellants, App. 98 (“Miracle Star’s cause of action
against appellants for a violation of the due process
clauses of the Fifth and Fourteenth Amendments to
the United States Constitution was the sole cause of
action submitted to the jury.”); App. 98 (“In fact,
during trial, the court urged the parties to consider
whether case law barred Miracle Star from
recovering money damages on its federal due process
cause of action.”); App. 100 (“There is no indication
in the federal due process clause that Congress
intended to allow, or to not allow, a party to sue for
money damages for a violation of the provision.”).
The state, nevertheless, contended that the
California Supreme Court’s decision in Katzberg—
holding that monetary damages are unavailable for
violations of state constitutional provisions—was
equally
applicable
to
federal
constitutional
violations.
The California Court of Appeal agreed. App. 1.
The court decided to extend Katzberg to federal
constitutional rights. App. 6-12. In doing so, the
court glossed over the fact that petitioner had raised
a valid § 1983 claim, and that this Court has held
that monetary damages are appropriate to vindicate
federal rights.
Miracle Star filed a petition to the California
Supreme Court asking them to reign in the Court of
Appeal and its decision extending Katzberg to federal
11
constitutional rights. The Supreme Court denied
review. App. 35.
REASONS FOR GRANTING THE WRIT
Conflict is not the right word, but it is the first one
that comes to mind.
The California Court of Appeal’s decision is in
significant conflict with the purpose of 42 U.S.C. §
1983 and several of this Court’s decisions. If the
decision was not so far reaching, it could be tolerable;
unfortunately, it affects the federal rights of millions.
If the decision stands, other states will also
immunize state officials from monetary damages
when those officials abuse the federal rights of their
citizens, and the deterrent for violating federal rights
that monetary damages provide will vanish. If that is
not bad enough, the lower court decision threatens to
inundate overburdened federal district courts with §
1983 suits—because why would anyone file a § 1983
action in state court if those courts have taken
monetary damages off the table. For these reasons,
the Court’s review is warranted.
I. THE CALIFORNIA COURT OF APPEAL’S DECISION
PROHIBITING COMPENSATORY DAMAGES FOR A
FEDERAL CONSTITUTIONAL VIOLATION IS AN
AFFRONT TO FEDERAL LAW AND THIS COURT’S
DECISIONS, AND CONTRAVENES THE SUPREMACY
CLAUSE
Supremacy is an essential component of our
constitutional design because the federal government
“is the government of all; its powers are delegated by
all; it represents all, it acts for all.” McCulloch v.
Maryland, 17 U.S. 316, 405 (1819). The Supremacy
Clause makes federal law the law of the land, and a
12
state court is as much “subject * * * to the laws of the
United States, and is just as much bound to
recognize these laws as operative within the State as
it is to recognize the State laws.” Claflin v.
Houseman, 93 U.S. 130, 137 (1876).
The Supremacy Clause is the primary reason why
state courts maintain concurrent jurisdiction on §
1983 claims. State courts, just as much as federal
courts, are responsible for ensuring that state
officials do not run roughshod over the federal rights
of its citizens. As a result, when an individual files a
§ 1983 action in state court, it cannot decline
jurisdiction over a federal claim on the ground that
an act of Congress “is not in harmony with a policy of
the state.” Mondou v. New York, New Haven &
Hartford R.R. Co., 223 U.S. 1, 57-58 (1912).
In order for federal and state courts to operate
properly under concurrent jurisdiction, this Court
has long required that when state courts address
federal claims, they cannot change the federal
remedial scheme. Howlett v. Rose, 496 U.S. 356, 360
(1990). Indeed, when a state court entertains a
federal law claim, it must entertain all of the
relevant federal law; it cannot merely pick among
the various aspects of federal law or substitute state
policies that are inconsistent with the relevant
federal ones. See Felder v. Casey, 487 U.S. 131, 141
(1988). And, under the Supremacy Clause, when a
state rule burdens federal law, or, outright conflicts
with it, the state rule necessarily “must yield.” Free
v. Bland, 369 U.S. 663, 666 (1962). That is so even if
the state rule merely conflicts with a policy behind §
1983. State law must also yield if the state rule will
produce different outcomes in § 1983 litigation based
13
on whether the claim is filed in state or federal court.
Felder, 487 U.S. at 138.
The California Court of Appeal’s rule removing
money damages from the menu of compensation for
infringement of federal rights conflicts with the
purpose of § 1983 and this Court’s decisions. This the
Supremacy Clause will not stand.
1. Although the statutory language of Section
1983 does not explicitly speak to the existence of
monetary damages, this Court has held that the
“central objective” of § 1983 was “to ensure that
individuals whose federal constitutional or statutory
rights are abridged may recover damages or secure
injunctive relief.” Burnett v. Grattan, 468 U.S. 42, 55
(1984). Given that the purpose of § 1983 is
compensation, this Court has held that compensation
under § 1983 includes monetary damages. Carey v.
Piphus, 435 U.S. 247, 256 (1978). Moreover, in cases
where the state has recklessly disregarded federal
rights, punitive damages are also available. Smith v.
Wade, 461 U.S. 30, 51-52 (1983).
California’s rule prohibiting monetary damages
for federal constitutional violations is not merely in
friction with the compensatory purpose of § 1983; it
stands in opposition to it. Even though a jury held
that the state accosted petitioner’s property interest
without due process of law—indeed, her business
was destroyed with not so much as a hearing—the
state court concluded that petitioner could not
receive just compensation. Such a view is anathema
to § 1983’s “cardinal principle” that the law should
provide “compensation for the injury caused to
plaintiff by defendant's breach of duty.” Carey, 487
U.S. at 254-55 (citing 2 F. Harper & F. James, Law
14
of Torts § 25.1, p. 1299 (1956) (emphasis in original)).
Section 1983 provides monetary damages as
compensation to those whose federal rights are
accosted and far be it from the state to remove this
federal remedy.
2. Not only does the state’s rule conflict with the
compensatory purpose of § 1983, it also flouts several
of this Court’s decision in the process.
This Court has repeatedly held that if a state rule
“frequently and predictably produce[s] different
outcomes depending upon whether § 1983 claims
were brought in state or federal court, it [is]
inconsistent with the federal interest in uniformity.”
Johnson v. Fankell, 520 U.S. 911, 920 (1997). It is
obvious that the state court’s rule taking monetary
compensation off the table for infringement of federal
civil rights is an incompatible remedy compared to
the one employed by federal courts and authorized by
this Court.
Similarly, this Court has repeatedly held that
state courts may not “immunize[] government
conduct otherwise subject to suit under § 1983 * * *
because the application of the state immunity law
would thwart the congressional remedy.” Martinez v.
California, 444 U.S. 277, 284 (1980); see also,
Howlett v. Rose, 496 U.S. 356, 375 (1990). Once
again, by removing monetary damages, the state rule
immunizes conduct that would otherwise be subject
to those damages in federal court. As the Court has
noted in similar instances:
Congress entitled those deprived of their civil
rights to recover full compensation from the
governmental officials responsible for those
15
deprivations. A state law that conditions that
right of recovery upon compliance with a rule
designed to minimize governmental liability * * *
is inconsistent in both purpose and effect with the
remedial objectives of the federal civil rights law.
Felder, 487 U.S. at 153 (emphasis added).
Finally, by removing monetary damages from the
compensation equation of § 1983, the state court has
removed, from civil rights victims, the right to choice
of forum. As noted above, state and federal courts
have concurrent jurisdiction over § 1983 claims.
Allen, 449 U.S. at 99. Concurrent jurisdiction, of
course, affords litigants a valuable choice of forum to
file their claim. But that choice is largely foregone if
monetary damages are unavailable in one forum but
not another.
There is no tension between the state court rule
here and this Court’s decisions; that rope has been
broken. Only this Court can tie the pieces back
together by placing civil rights victims in the same
position they would occupy without the state’s
conflicting rule.
II. THE SUPREMACY CLAUSE ISSUE IS OF THE
UTMOST IMPORTANCE
Removing the state court’s rule denying monetary
damages and giving back the citizens of California
their full panoply of compensation for federal rights
violations is immensely important. It is important
because the state rule deprives many millions of the
compensation intended by Congress under § 1983,
conflicts with the full compensation and deterrence
purposes of § 1983, removes from plaintiffs an
important forum to vindicate federal rights, drives
16
plaintiffs to already overburdened federal district
courts, and performs a brazen end-run around
federal law.
1. The state court rule does more than just deny
petitioner a right to compensation for the violation of
federal rights; the rule will also deny millions of
California citizens the same ability to seek
compensation for violations of federal law. This is no
small matter. At 37 million people, the citizens of
California comprise more than the states that make
up both the Fourth and the Tenth Circuits—
combined.1 The state’s rule effectively deprives two
circuits worth of people the full protection of federal
rights by removing the compensation they can
receive when state officials violate their rights. In
addition, California has long been viewed as an
“experiment” state: a state that often creates new
legal doctrine that other states follow. See c.f.,
Gonzales v. Raich, 545 U.S. 1 (2005). It is therefore
no small matter that California has sought to
exclude monetary compensation as a means to
remedy federal constitutional violations; for if this
decision is left to stand, other states could likewise
decide to immunize their state officials from the
threat of monetary damages.
2. Federal constitutional rights play a vital role in
an age increasingly dominated by the state. When
the state deprives someone of their rights, Congress
entitles them “to recover full compensation from the
governmental officials responsible for those
deprivations.” Felder, 487 U.S. at 153. And, as this
1 See U.S. Census Bureau, Annual Population Estimates 2000
to 2009, available at: http://www.census.gov/popest/states/NSTann-est.html (last visited September 5, 2011).
17
Court has held, full compensation obviously includes
monetary damages.
The reason monetary damages are included within
the menu of compensation is two-fold. First, if the
purpose of § 1983 is full compensation, then
Congress believed that when the state causes
monetary damage, the state needs to make the
individual whole by providing money back. Second,
the purpose of 1983 is “not only to provide
compensation to the victims of past abuses, but to
serve as a deterrent against future constitutional
deprivations, as well.” Owen v. City of Independence,
445 U.S. 622, 651 (1980); see also, Myriam E. Gilles,
In Defense of Making Government Pay: The Deterrent
Effect of Constitutional Tort Remedies, 35 GA. L. REV.
845 (2001). Without the deterrent of money damages,
state officials are free to abuse California citizens
with impunity. By removing monetary damages from
the menu of constitutional compensation, the state
rule does damage to the important deterrent purpose
of § 1983.
3. The state’s rule precluding money damages affects
other areas of constitutional litigation besides just
the scope of damages. As noted above, plaintiffs may
file § 1983 suits in either federal or state court.
Concurrent jurisdiction thus affords litigants a
choice of forum. That choice includes considerations
such as the plaintiff’s geographic location, the costs
of litigation, the composition of respective jury pools,
and the applicable rules of civil procedure. Because
of concurrent jurisdiction, many “[s]tate courts have
emerged in recent years as the forum of choice for an
increasing number of plaintiffs suing state and local
defendants under * * * § 1983.” Steven H. Steinglass,
Section 1983 Litigation in State Courts § 1:1, at 1-1,
18
1-4 (2002). But the state’s rule here entirely
precludes consideration in state courts of § 1983
suits—for why would someone seek compensation in
state court if money damages are unavailable. The
state’s rule has therefore caused the citizens of
California to lose an important forum to vindicate
federal constitutional rights.
4. It is not just the citizens of California who will
lose by the application of the state’s rule. In addition
to giving plaintiff’s a choice for filing § 1983 claims,
concurrent jurisdiction provides a “blessing” for the
legal system, by “allowing for the development of
empathy between the sovereigns, and an enrichment
of the law.” Lauren Robel, Impermeable Federalism,
Pragmatic Silence, and the Long Range Plan for the
Federal Courts, 71 IND. L.J. 841, 850 (1996). If
plaintiffs are unwilling to file § 1983 claims in state
court, that blessing will vanish—to the detriment of
the legal system as a whole.
More importantly, the state’s rule will drive the
citizens of California to federal district courts, some
of the most overburdened courts in the entire
country. See Diane Feinstein, Senator Feinstein
Introduces Legislation to Reduce Caseload in
Overburdened Federal Courts, (May 17, 2011) (“The
Eastern District of California * * * faces far and
away the worst caseload crisis in the nation. As of
December 31, 2010, the District was managing 1,133
weighted filings per authorized judgeship—a
caseload that is not only the highest in the nation,
but also 300 weighted filings per judge higher than
any other District Court in the country and almost
three times the threshold at which the Judicial
Conference recommends additional judgeships.”).
The Court should spare the federal district courts in
19
California by removing the state’s erroneous and
dangerous rule precluding monetary damages for §
1983 claims. Such a move would again provide state
courts as a viable forum for § 1983 plaintiffs.
5. The state’s rule here was made not in an area of
the law where clarity is lacking. This Court has
repeatedly acknowledged that when state courts
address federal claims under § 1983, they cannot
change the remedial scheme that Congress provided.
See Testa v. Katt, 330 U.S. 386, 391 (1947); Fankell,
520 U.S. at 920; Felder, 487 U.S. at 138. Part of that
remedial scheme is compensatory and punitive
damages, which includes an award of money. See
Carey v. Piphus, 435 U.S. 247, 256 (1978). It is thus
hard to see how the state could ignore these plain
pronouncements from the Court and remove
monetary damages from the § 1983 equation. This
brazen side step around federal law is intolerable.
And this was not just an academic end-run around
federal law; it had a real-world effect for the citizens
of California. Because of the Department’s failure to
renew Miracle Star’s license, Petitioner was unable
to accept early release prisoners, which contributed
to the severe overcrowding this Court recognized last
term in Brown v. Plata, 131 S. Ct. 1910 (2011).
Mandating that the programs providing substance
abuse and mental health treatment receive
compensation for due process violations falls
squarely under Brown as both appropriate and
proper.
The Supremacy Clause, at the very least, means
that states lack the power to override the choice
made by Congress and force plaintiffs to resort to a
different one. Congress provided for suits against
20
state employees, including suits for compensatory
and punitive damages, and this Court’s decisions
have done nothing to retreat from that
understanding. Because the state’s rule amounts to
an express encroachment of clearly established
federal law, the Court should reverse the decision.
III. THE ISSUE IS RIPE FOR REVIEW
There are no procedural issues that would prevent
the Court from reviewing the question of whether the
state court’s rule prohibiting compensatory money
damages in a § 1983 suit is compatible with federal
law. First, petitioner raised the federal issue at every
stage of the state court proceedings. Petitioner pled a
42 U.S.C. § 1983 claim in the complaint and argued
for damages due to federal rights violations before
both California appellate courts. App. 36, 55-61.
Even the state conceded that it was federal due
process at issue. App. 98-100. Second, the only issue
in this case is whether monetary damages are
available as compensation for a violation of federal
rights; that was the sole basis of the state court’s
decision. Third, a favorable resolution of the question
by the Court would be outcome determinative; if the
Court holds that money damages are available to
petitioner that will be the end of the matter. This
factor also favors review.
The state court here flagrantly disobeyed federal
law and this Court’s decisions. This Court should
remind the lower court that when federal claims are
at issue, the state is not free to deviate from the
policies set forth by Congress through enactment of
42 U.S.C. § 1983.
21
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
Respectfully submitted,
JEFFREY D. MOFFATT
Counsel of Record
LAW OFFICES OF JEFFREY D. MOFFATT
43625 N. Sierra Hwy, Suite A
Lancaster, CA 93534
(661)945-6121
jeffreymbajd@hotmail.com
App. 1
2011 WL 803634
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MIRACLE STAR WOMEN’S
RECOVERING COMMUNITY
INC.,
B214489
Plaintiff and Respondent,
(Los Angeles County
Super. Ct.
No. MC016888)
v.
(Filed Mar. 9, 2011)
KATHERINE JETT etc. et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court
of Los Angeles County, Robert H. O’Brien, Judge.
Reversed with directions.
Edmund G. Brown, Jr., and Kamala D. Harris,
Attorneys General, Douglas M. Press, Senior Assistant Attorney General, Jennifer M. Kim and Chara L.
Crane, Deputy Attorneys General, for Defendants
and Appellants.
Mazur & Mazur, Janice R. Mazur and William E.
Mazur, Jr., for Plaintiff and Respondent.
-----------------------------------------------------------------------
App. 2
INTRODUCTION
Defendants Katharine Jett, Director, and the California State Health and Human Services Department
of Alcohol and Drug Programs appeal from a judgment in favor of plaintiff Miracle Star Women’s
Recovering Community, Inc. Defendants contend the
trial court erroneously submitted a constitutional
question to the jury and erred in denying their
motions for judgment in their favor. They also claim
evidentiary error. We agree that defendants were
entitled to judgment in their favor and reverse.
FACTS1
Miracle Star Women’s Recovering Community,
Inc. (Miracle Star) was licensed by the California
State Health and Human Services Department of
Alcohol and Drug Programs (Department) as a residential alcohol and drug treatment facility. It operated a facility on Cedar Avenue in Lancaster and a
second facility on an adjoining property on Newgrove
Avenue. The facilities are owned and operated by
Jeffrey and Star Moffatt (Moffats [sic]).
1
Plaintiffs move to strike defendants’ opening brief on the
ground defendants’ statement of facts improperly refers to
findings of fact in an administrative decision of which we took
judicial notice, but which was excluded from evidence in the trial
court. To the extent defendants cite these findings in reference to
their discussion of the facts in this case or rulings based on those
facts, we grant plaintiffs’ motion. We cannot consider facts not
before the court when determining the correctness of the judgment.
(Cf. Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.)
App. 3
On January 28, 2004, Department inspector
Robert Rose (Rose) conducted a routine inspection of
the two facilities, as well as another adjoining property
on (respond to Newgrove already licensed in 2001)
Newgrove Avenue which Moffatt hoped to have added
to the license. Rose noted two “deficiencies” requiring
correction – a missing light bulb and a loose trash can
lid. He also observed two women at the Newgrove
Avenue facility who were living there as “sober living”
clients2. He told Ms. Moffatt that he did not know
whether sober living clients could be housed in the
treatment facility. He would check with his supervisor and let her know.
On February 3, 2004, Rose sent the Moffatts a
Notice of Deficiency, identifying the missing light
bulb and trash can lid as deficiencies, requesting a
fire certification for the property the Moffatts hoped
to add to Miracle Star’s license, and citing Miracle
Star for “operating outside the conditions of its license.”
The Moffats responded by letter on March 1,
2004 that the deficiencies had been corrected and
provided Rose with a copy of the requested fire certification. On March 5, the Moffats sent Rose a second
letter stating their belief it was acceptable to house
2
“Sober living” clients are no longer in treatment for
substance abuse but are receiving assistance in preparation for
independent living. The Department does not have jurisdiction
over sober living programs.
App. 4
sober living clients at a treatment facility and citing
authority for their position. Rose did not respond to
either letter. Nevertheless, within about two weeks
the Moffats moved the two women out of the treatment facility. Ms. Moffatt called Rose and told him
that the women were no longer living in the treatment
facility, but he said the matter was now out of his
control.
Miracle Star’s license was to expire on April 30,
2004. The Moffatts submitted a renewal application
prior to that date. On May 15, they received a letter
from Rose demanding receipts proving they had
corrected the deficiencies. They sent him the receipts.
On May 21, they received a letter from the Department stating that Miracle Star’s license had not been
renewed and the facilities were required to cease
operations.
The Moffats communicated with both the Department and the Office of Administrative Hearings, requesting a hearing on the Department’s refusal to
renew Miracle Star’s license. They were informed that
only the Department could initiate an administrative
hearing.
The Department took the first step toward initiating an administrative hearing on April 7, 2005,
when it filed a Statement of Issues, citing Miracle
Star for the missing light bulb, the loose trash can lid
and operating outside the scope of its license. The administrative hearing did not take place until December 2006.
App. 5
On February 26, 2007, the administrative law
judge issued an order dismissing the statement of
issues and granting Miracle Star’s request for renewal
of its license. The order also provided that the third
facility could be added to the license once it passed
the Department’s inspection.
PROCEDURAL BACKGROUND
Miracle Star filed this action against the Department on November 10, 2005, alleging 15 causes of
action for violation of various constitutional and
statutory provisions. By the time of trial, however, in
December 2008, the matter had been reduced to one
cause of action for violation of due process. Although
the Moffatts were at one time plaintiffs, by the time
the case was submitted to the jury they were no
longer parties.
At trial, the Department sought to introduce the
administrative decision into evidence. The trial court
allowed only one page of the decision – the order
dismissing the Statement of Issues and granting the
license renewal – into evidence. The court explained
that the decision contained “too much law” that might
be different from the law applicable to the civil lawsuit. Additionally, the findings of the administrative
law judge had no relevance to the case.
The Department also filed a motion for directed
verdict or, in the alternative, dismissal, and a second
motion for directed verdict or, in the alternative,
judgment on the pleadings. The basis of both motions
App. 6
was the same: that Miracle Star had no right to
money damages for a due process violation. The trial
court denied these motions.
The jury was instructed as to the elements of a
due process violation, the requirements of a Notice of
Deficiency, and tort damages. By special verdict, the
jury found that the Department “fail[ed] to provide
Due Process to” Miracle Star, causing damage in
the amount of $302,000 for past economic loss and
$90,600 for future economic loss, for a total of
$392,600 in damages.
DISCUSSION
The Department contends that the trial court
erred in denying its motions for a directed verdict,
dismissal or judgment on the pleadings, in that
Miracle Star had no right to money damages for a due
process violation when there were alternative legal
remedies available. In support of this contention,
the Department relies, as it did below, on Bonner v.
City of Santa Ana (1996) 45 Cal.App.4th 1465 and
Katzberg v. Regents of University of California (2002)
29 Cal.4th 300.
In Bonner, the court held that a plaintiff has no
right to money damages for violation of the state due
process or equal protection clauses. This holding was
based on the conclusion that the voters did not intend
to provide a damages remedy for violation of these
provisions. (Bonner v. City of Santa Ana, supra, 45
Cal.App.4th at pp. 1471-1476.)
App. 7
In Katzberg, the Supreme Court examined the
question whether a plaintiff may maintain an action
for money damages based on a violation of his due
process liberty interests. (Katzberg v. Regents of
University of California, supra, 29 Cal.4th at p. 307.)
The court adopted a framework for determining the
availability of a damages remedy for an asserted
constitutional violation. First, it would look for evidence from which it could find or infer an affirmative
intent either to authorize or to withhold a damages
action to remedy a violation of the constitutional
provision at issue. Second, if no such intent or inference could be found, it would undertake a “ ‘constitutional tort’ ” analysis. This analysis requires an
examination of such factors as “whether an adequate
remedy exists, the extent to which a constitutional
tort action would change established tort law, and the
nature and significance of the constitutional provision.” (Id. at p. 317.) If these factors weighed in favor
of recognizing a constitutional tort, then the court
would “consider the existence of any special factors
counseling hesitation in recognizing a damages action,
including deference to legislative judgment, avoidance
of adverse policy consequences, considerations of government fiscal policy, practical issues of proof, and
the competence of courts to assess particular types of
damages.” (Ibid.)
In examining the due process clause, the court
found no express or implied right to seek monetary
damages for a due process violation. (Katzberg v. Regents of University of California, supra, 29 Cal.4th at
App. 8
p. 324.) It then proceeded to examine the factors that
would help it determine whether a damages remedy
would be appropriate. As to the adequacy of existing
remedies, it concluded “that this consideration does
not support recognition of a constitutional tort cause
of action for damages to remedy an asserted violation
of the due process ‘liberty’ interest. . . .” (Id. at p. 326.)
Rather than pursuing an action for damages, the
plaintiff could have sought to remedy the alleged
wrong by filing a petition for writ of mandate seeking
to compel the defendant to hold a timely hearing.
(Ibid.) He also could have sought to establish a due
process violation by seeking declaratory or injunctive
relief. (Ibid.) In addition, in that particular case, the
plaintiff could have brought a defamation action to
obtain damages for the alleged wrong. (Id. at p. 327.)
The court further found that allowing a constitutional tort action would change established tort law.
(Katzberg v. Regents of University of California, supra,
29 Cal.4th at pp. 327-328.) Although the plaintiff
“suggest[ed] that a damages action to remedy an
asserted violation of his due process liberty interest
[was] contemplated by tort law as codified by Civil
Code sections 1708 and 3333,” the court rejected his
claim. (Id. at p. 327.) Section 1708 merely provides
that every person is bound to abstain from injuring
another, and section 3333 provides the general measure of damages in tort cases. Neither provides support
for a claim that tort law contemplates a cause of
App. 9
action for damages for a due process violation. (Katzberg, supra, at pp. 327-328.)
While the rights protected by the due process
clause are significant, the court concluded that in the
absence of any other relevant factors supporting a
damages remedy for its violation, and particularly
because of the availability of a meaningful alternative
remedy, there was no constitutional tort remedy for the
alleged due process violation. (Katzberg v. Regents of
University of California, supra, 29 Cal.4th at p. 328.)
Miracle Star claims that in this case it had no
meaningful alternative remedy and specifically that
seeking a writ of mandate to compel the Department
to provide it with a hearing would not have been
effective. It argues that “[i]n this case, the Department never gave Miracle Star any determination that
it was not entitled to a hearing – it just dragged its
feet in providing one. It would be unduly burdensome
to require a plaintiff who seeks an administrative
remedy to go to court to force the agency to provide a
remedy when the agency has not refused to do so in
the first place.”
We disagree. We see no reason for distinguishing
between the agency’s refusing to hold a hearing or
foot-dragging which delays the hearing for the purpose
of determining whether a person has a meaningful
remedy. In either case, the person is being deprived of
his right to a timely administrative hearing. Under
the circumstances, Miracle Star could have sought to
establish a violation of its due process rights through
App. 10
an action for declaratory or injunctive relief. (Katzberg v. Regents of University of California, supra, 29
Cal.4th at p. 326.) By these it could have established
its right to an administrative hearing within a certain time period and an order that the Department
provide a hearing within the specified period.
As to whether a constitutional tort action would
change established tort law, Miracle Star asserts that
an action for damages is permitted here because it is
tied to a statutory action. It cites a footnote in Katzberg, in which the Supreme Court declined to “consider the propriety of actions such as those based upon
grounds established under common law tort principles
– for example, actions for false arrest, false imprisonment, wrongful termination based upon violation of
public policy, or the like. In such actions, a breach of
duty or violation of public policy may be established
by demonstrating a violation of a constitutional
provision, and damages properly may be awarded to
remedy the tort. We consider here only whether an
action for damages is available to remedy a constitutional violation that is not tied to an established
common law or statutory action.” (Katzberg v. Regents
of University of California, supra, 29 Cal.4th at
pp. 303-304, fn. 1.)
In City of Simi Valley v. Superior Court (2003) 111
Cal.App.4th 1077, the court in reliance on Katzberg
stated: “Plaintiffs have alleged no facts tying a state
constitutional right to a common law action or a
statutory cause of action.” (Id. at p. 1085.) It therefore
App. 11
precluded them from suing for damages on a constitutional claim. (Id. at p. 1086.)
Miracle Star argues that its “constitutional due
process claim is directly tied to statutory violations,”
specifically violations of the California and federal
administrative procedures acts, the California Code
of Regulations, the Government Code, the Health and
Safety Code, and the federal Civil Rights Act as
alleged in its complaint. In determining whether a
constitutional tort should be recognized, the question
is not whether the claim is tied to a statutory violation but whether it is “tied to an established common
law or statutory action.” (Katzberg v. Regents of University of California, supra, 29 Cal.4th at p. 304, fn. 1,
italics added.)
Miracle Star acknowledges that, allegations of its
complaint notwithstanding, by the time of trial it was
suing for violations of due process and the Administrative Procedures Act (Gov. Code, § 11340 et seq.).
Miracle Star alleged that the Department violated
section 10529 of title 9 of the California Code of
Regulations, which provides for extension of the period
of licensure. The jury instructions make clear Miracle
Star was claiming a violation of the California Code
of Regulations, title 9, section 10544, which sets forth
the requirements for a notice of deficiency, and section
10548, which sets forth the procedures for suspension
or revocation of a license.
None of these sections provides a right of action for damages. In fact, section 10548(f) of title 9 of
App. 12
the California Code of Regulations refers to “the
licensee’s legal right to petition the court to enjoin
closure of the facility.” (Italics added.) Thus, allowing
a constitutional tort action would change established
tort law. (Katzberg v. Regents of University of California, supra, 29 Cal.4th at pp. 327-328.)
As in Katzberg, while the rights protected by the
due process clause are significant, in the absence of any
other relevant factors supporting a damages remedy
for its violation, and particularly because of the
availability of a meaningful alternative remedy, there
is no constitutional tort remedy for the alleged due
process violation. (Katzberg v. Regents of University of
California, supra, 29 Cal.4th at p. 328.) The trial court
therefore erred in denying the Department’s motion,
either for a directed verdict (Hilliard v. A. H. Robins
Co. (1983) 148 Cal.App.3d 374, 395; see also Margolin
v. Shemaria (2000) 85 Cal.App.4th 891, 895) or judgment on the pleadings (Cloud v. Northrop Grumman
Corp. (1998) 67 Cal.App.4th 995, 999; Baughman v.
State of California (1995) 38 Cal.App.4th 182, 187).3
3
Inasmuch as the judgment must be reversed and judgment entered in the Department’s favor, we need not resolve the
Department’s remaining contentions.
App. 13
DISPOSITION
The judgment is reversed. The trial court is
directed to enter judgment in favor of defendants.
Defendants are awarded their costs on appeal.
JACKSON, J.
We concur:
WOODS, Acting P. J.
ZELON, J.
App. 14
SUPERIOR COURT
Reserved for
OF CALIFORNIA
Clerk’s File
COUNTY OF LOS ANGELES
Stamp
Courthouse Address:
FILED
42011 4th Street West
LOS ANGELES
Lancaster, CA 93534
SUPERIOR
Plaintiff/Petitioner:
COURT
MIRACLE STAR WOMEN’S
FEB 02 2009
RECOVERING COMMUNITY,
INC., et al.
JOHN A.
Defendant/Respondent:
CLARKE, CLERK
KATHERINE JETT, INDIVID/s/ L Klein
UALLY AND IN HER CAPACIBY
L. KLEIN,
TY, et al.
DEPUTY
JUDGMENT ON
CASE NUMBER:
SPECIAL VERDICT
MC 01688
This action came on regularly for trial on December
23-29, 2008, in Department D-21 of the Superior
Court, the Honorable Robert H. O’Brien, Judge
Presiding; the plaintiff(s) appearing by attorney(s)
Olaf Arthur Landsgaard
and the defendant(s) appearing by attorney(s)
Jennifer Kim – Deputy Attorney General for the State
of California; Eric Bates – Deputy Attorney General;
and Chara Crane – Deputy Attorney General.
A jury of twelve (12) persons was regularly impaneled
and sworn/acknowledged and agreed to try the cause.
Witnesses were sworn and testified. After hearing the
evidence and arguments of counsel, the jury was duly
instructed by the Court and the cause was submitted
App. 15
to the jury with directions to return a special verdict/verdict on special issues. The jury deliberated
and thereafter returned to court with its special
verdict/verdict on special issues submitted to the jury
and the answers given thereto by the jury, which
verdict was in words and figures as follows, to wit:
Question No. 1: Did the STATE OF CALIFORNIA
HEALTH AND HUMAN SERVICES DEPARTMENT
OF ALCOHOL AND DRUG PROGRAMS fail to
provide Due Process to the plaintiff MIRACLE STAR
WOMEN’S RECOVERING COMMUNITY, INC.?:
Yes _X__ … …No ___
Question No. 2: Did the defendants’ failure to provide
due Process to plaintiffs cause plaintiff ’s damage?
Yes _X__ … …No ___
Question No. 3: What are MIRACLE STAR WOMEN’S
RECOVERING COMMUNITY, INC.’s and the Moffatt’s
damages?
a. Past economic loss
Lost earnings
Lost profits
Other past economic loss
Total Past Economic
Damages:
b. Future economic loss
Lost earnings
Lost profits
Other Future Economic
loss
$____________
$____________
$____________
$302,000
$____________
$____________
$____________
App. 16
Total Future Economic
Damages:
$90,600
TOTAL
$392,600
(Here quote entire Special Verdict verbatim)
TITLE OF COURT AND CAUSE
**********
SUPERIOR COURT OF THE
STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
MIRACLE STAR WOMEN’S
RECOVERING
COMMUNITY, INC., et al.,
CASE NO.
MC 016888
SPECIAL VERDICT
Plaintiffs,
vs.
STATE OF CALIFORNIA
HEALTH AND HUMAN
SERVICES DEPARTMENT OF
ALCOHOL AND DRUG
PROGRAMS, ET AL,
Defendants.
We, the jury in the above-entitled action, unmake the
following Special Verdict on the following questions
submitted
Question No 1: Did the STATE OF CALIFORNIA
HEALTH AND HUMAN SERVICES DEPARTMENT
OF ALCOHOL AND DRUG PROGRAMS fail to
App. 17
provide Due Process to the plaintiff MIRACLE STAR
WOMEN’S RECOVERING COMMUNITY, INC.?:
Yes _X__ … …No ___
If your answer to Question No. 1 is “Yes”, then
answer Question No. 2. If you answered “No”, stop
here, answer no further questions and have the
presiding juror sign and date this form.
Question No. 2: Did the defendants’ failure to
provide due Process to plaintiffs cause plaintiff damage?
Yes _X__ … …No ___
If your answer to Question No. 2 is “Yes”, then
answer Question No. 3. If you answered “No”, stop
here, answer no further questions and have the
presiding juror sign and date this form.
Question No. 3: What are MIRACLE STAR WOMEN’S RECOVERING COMMUNITY, INC.’s and the
Moffatt damages?
a. Past economic loss
Lost earnings
Lost profits
Other past economic loss
Total Past Economic
Damages:
b. Future economic loss
Lost earnings
Lost profits
Other Future Economic
loss
$____________
$____________
$____________
$302,000
$____________
$____________
$____________
App. 18
Total Future Economic
Damages:
$90,600
TOTAL
$392,600
DATED:
December 29, 2008
Presiding Juror
It appearing by reason of said special verdict that
Miracle Star Women’s Recovering Community, Inc.,
plaintiff
plaintiff/defendant/cross-complainant/cross-defendant
is entitled to judgment against
DEFENDANTS Katherine Jett in her official capacity; and the California Department of Alcohol and
Drug Programs
plaintiff/defendant/cross-complainant/cross-defendant
NOW THEREFORE, IT IS ORDERED, ADJUDGED
AND DECREED that said
Miracle Star Women’s Recovering Community, Inc.,
plaintiff
plaintiff/defendant/cross-complainant/cross-defendant
have and recover from said
Defendant, California Department of Alcohol and
Drug Programs
plaintiff/defendant/cross-complainant/cross-defendant
damages in the sum of $392,600.00
[and punitive damages in the sum of $
] with
interest thereon at the rate of ten percent per annum
from the date of the verdict until paid together with
App. 19
costs and disbursements amounting to the sum of
$
according to
Costs bill submitted pursuant
to Code of Civil Procedure 998 and 1033.5.
NOW THEREFORE, IT IS ORDERED, ADJUDGED
AND DECREED that
plaintiff/cross-complainant
have and recover nothing by reason of their complaint
against
defendant/cross-defendant
and that
defendant/cross-defendant
shall have and recover from
plaintiff/cross-complainant
costs and disbursements amounting to the sum of $
Dated: January Feb 2, 2009
/s/ [Illegible]
Judicial Officer
Robert H. O’Brien
App. 20
BEFORE THE
STATE OF CALIFORNIA
DEPARTMENT OF ALCOHOL
AND DRUG PROGRAMS
In the Matter of the Statement of Issues Against:
Case No. ADP-LI-101
OAH No. L20005040650
MIRACLE STAR WOMEN’S
RECOVERY COMMUNITY,
INC., LICENSE NUMBER
19021411AN,
Respondent.
PROPOSED DECISION
Sandra L. Hitt, Administrative Law Judge (ALJ),
Office of Administrative Hearings, heard this matter
on December 14, and 15, 2006, at Los Angeles, California.
William M. Roso, Staff Counsel, Department of
Alcohol and Drug Programs (ADP), represented ADP.
Olaf A. Landsgaard, Attorney at Law, represented Respondent Miracle Star (Respondent or Miracle
Star).
The record was held open until January 30, 2007,
for submission of closing briefs. Respondent’s closing
brief and reply brief were timely received and marked
as Exhibits FF and GG, respectively. ADP’s closing
and reply briefs were timely received and marked as
App. 21
Exhibits 27 and 28, respectively.1 Oral and documentary evidence having been received and the matter
having been submitted on January 30, 2007, the
Administrative Law Judge makes the following
Proposed Decision:
FINDINGS OF FACT
1. Miracle Star has been licensed by ADP since
approximately 1998 at 44664 N. Cedar Avenue, and
since 2001 at 558 Newgrove Avenue, Lancaster,
California 93534. The license authorizes Respondent
to provide inpatient alcohol and drug treatment to 12
adult female clients at the 44664 facility and to 12
adult male clients at the 558 facility. In addition to
operating the drug and alcohol treatment facility
under the purview of ADP, Respondent has been
housing sober-living clients at the facility.2 Miracle
Star owns three buildings on the property in Lancaster, California, where its treatment facility is located:
44664 N. Cedar Avenue (the women’s recovering
1
Respondent’s counsel was, apparently, under the mistaken impression that reply briefs were due on January 26, 2007,
and submitted Respondent’s reply brief on that date. Counsel for
ADP submitted ADP’s reply brief on the established deadline of
January 30, 2007, but noted that he did not read Respondent’s
reply brief before submitting ADP’s reply brief.
2
Sober-living facilities are not within the jurisdiction of
ADP. Sober-living residents are typically persons who have
completed an alcohol treatment program and are in need of a
less intensive level of help to assist them in their recovery.
App. 22
community), 558 Newgrove Avenue (the men’s recovering community), and 556 Newgrove Avenue.3
2. On January 27 and 28, 2004, ADP Licensing
and Certification Analyst Robert Rose (Rose) conducted a routine inspection of the Miracle Star facilities at
44664 N. Cedar and 558 Newgrove. During his inspection, Rose cited several deficiencies; particularly,
(1) a garbage can in the kitchen of the 558 facility
required a tight fitting lid (a violation of California
Code of Regulations (CCR), title 9, section 10581,
4
subdivision (f) and a class “C” violation), (2) a bedroom at the N. Cedar facility required light bulbs and
a light cover (a violation of section 10581, subdivision
(a) and a class “C” violation), and (3) the facility was
being operated beyond the conditions and limitations
specified on the license (a violation of CCR title 9,
section 10513 and a class “B” violation).
3
On January 28, 2004, Respondent requested that ADP
add the six-bed 556 facility to its then current license. At the
time of the inspection, the 556 facility was not yet completed,
but the ADP inspector noted that it was near completion and
could be ready in “a couple of weeks.”
4
Class A deficiencies are those that pose imminent danger
to residents and must be eliminated or abated immediately.
Class B deficiencies are those that pose a potential danger to the
health and safety of residents and must be corrected within 30
days or less if ADP determines the deficiency is sufficiently
serious to require correction within a shorter period of time. All
other deficiencies require written verification of the correction
of each deficiency within 30 days of receiving the notice of
deficiency.
App. 23
The class B violation was cited because Respondent had allowed women sober-living clients to stay
at the 558 facility. Rose observed two women at the
facility who were not in treatment. At the time Rose
inspected Miracle Star, and discovered women and
children in residence at the 558 facility, there were no
patients in treatment at either the men’s or the
women’s facility.
One of the women observed by Mr. Rose appeared
to be living in a single room with her children. One of
the reasons Miracle Star was using treatment beds
for sober-living clients was that many of these beds
had been vacant for some time, due to a lack of referrals from the Local Community Assessment Service
Center. Prior to the expiration of its license, Respondent had not had any clients in treatment for 10
months.
3. Rose did not complete his inspection of the
558 address due to his discovery of the class “B”
violation. ADP took the position that clients who were
not participating in the alcohol or drug treatment
programs could not be housed with patients in the
treatment programs, or in beds licensed for treatment
patients, as this was operating outside the conditions
of the license.5
5
Rose also cited the lack of a fire clearance. It is unclear
from the record exactly which address Rose found to be lacking a
fire clearance. The 44664 address received a fire clearance in
2000 and the 558 address received a fire clearance in 2001. Rose
(Continued on following page)
App. 24
4. On February 3, 2004, Rose sent Respondent a
letter in which he detailed the deficiencies set forth in
paragraph 3, above. In that letter, Rose instructed
Respondent to submit documentation within 30 days
of receipt of the letter verifying that each deficiency
had been corrected. A series of telephone calls and
correspondence between ADP and Respondent ensued.
5. On March 1, 2004, Respondent advised ADP
that “all items have been brought into compliance to
meet your requests.” On March 9, 2004, Respondent
filed an application for the renewal/extension of the
license for the 44664 and 558 facilities. On March 11,
2004, Jeffrey Moffatt, CEO of Miracle Star,6 sent a
letter to Rose asserting that the women Rose had
observed at the facility during his inspection were
part of Miracle Star’s sober-living modality, and that
such “mixed modalities” were authorized under CCR
title 9, section 10508. Mr. Moffatt further asserted
that Miracle Star’s sober-living modality was outside
the jurisdiction of ADP. Nevertheless, Respondent
removed its sober-living clients from the licensed
may have been referring to the 556 facility, which had no
clearance at the time of his inspection, but was inspected by the
fire department on February 26, 2004, and granted a fire
clearance. Respondent provided a copy of this clearance to ADP
in a letter dated March 1, 2004.
6
Mr. Moffatt is a federal tax and appellate attorney. He
was not, during the relevant time period, licensed to practice in
the state courts of California.
App. 25
facility. Respondent’s license expired on April 30,
2004.
6. On May 1, 2004, Rose called Respondent to
request copies of receipts for purchases of light bulbs
and a trash can. In a letter dated May 15, 2004,
Respondent objected to having to provide receipts for
such minor items. At the hearing of this matter, Rose
admitted that lack of such receipts would not warrant
a refusal to renew the license. The Class “B” violation
(operating beyond the conditions of the license) was
the reason that ADP had failed to renew the license.
ADP believed Respondent intended to violate ADP’s
regulations in the future. Rose testified at hearing [sic]
that ADP needed a letter from Respondent indicating
that Respondent would adhere to the conditions of
the license in the future. However, there was no
evidence that ADP requested written assurances from
Respondent to that effect, or that ADP informed
Respondent that such assurances were needed.
Moreover, at no time did Rose return to the facility to
verify whether Respondent had corrected the deficiencies. Finally, ADP did not assess any monetary
penalties against Miracle Star nor petition the court
to enjoin its operation. The evidence adduced at
hearing was insufficient to demonstrate that Respondent had not corrected the cited deficiencies or
that Respondent was not in substantial compliance
with regulations governing alcohol and drug treatment programs. On the contrary, by March 1, 2004,
Respondent was in substantial compliance despite
the items cited by Rose in his inspection.
App. 26
7. On May 21, 2004, ADP sent a notice to Respondent informing it that Miracle Star’s license had
expired, and that ADP would not renew the expired
license. The reason given was Respondent’s failure to
clear the outstanding program deficiencies cited
during the compliance review on January 27 and 28,
2004. ADP took the position that Miracle Star had
intentionally refused to cooperate with its licensure
7
requirements. This letter also stated that Respondent’s March 1, 2004 request to add the 556 facility to
its license had been denied, and ordered Respondent
to immediately cease and desist providing any alcohol
or drug services at Miracle Star. The letter was
signed by Supervisor Isaac Ozobiani, on behalf of
ADP’s David L. Feinberg, Manager, Residential and
Outpatient Programs, Compliance Branch. Respondent took issue with the denial. Respondent had done
all that was required under the renewal regulations;
specifically, CCR, title 9, section 10529, subdivision
(a)(2), and queried why the renewal application had
not been automatically granted, as provided for in
that regulation. Miracle Star’s CEO pointed out what
he thought were various technical deficiencies in the
non-renewal process. He questioned the authority
of Mr. Ozobiani and/or Mr. Feinberg to deny the
renewal.8 At some point, communication between the
7
As indicated in paragraph 6, the only deficiency truly at
issue was “operating beyond the conditions of the license.”
8
Department Director, Katherine Jett, delegated to
Rebecca Lira, Deputy Director for Licensing and Certification,
the authority to execute all documents in connection with
(Continued on following page)
App. 27
parties had broken down, and Respondent had lost
faith in ADP. The parties were unable to resolve their
issues without resort to the adjudicative process, and
on April 7, 2005, ADP filed a Statement of Issues
pursuant to California Government Code section
11504.
8. ADP argued that non-renewal of the license
was proper because Respondent had not submitted a
Corrective Action Plan (CAP) for its class B and C
violations. However, no CAP was warranted under
the circumstances. CCR, title 9, section 10545 allows
the licensee to submit a CAP for those class B or C
deficiencies which cannot be corrected by the date
specified in the notice of deficiency. Respondent
corrected the deficiencies and notified ADP within the
prescribed 30-day period. CCR, title 9, section 10547
requires that if a licensee fails to correct a deficiency
by the date specified in the notice of deficiency or
submit a subsequently approved CAP, the Department shall assess a civil penalty against the licensee
of $50 per day for each class A and B deficiency, and
$25 per day for each class C deficiency. Miracle Star
did not submit a CAP, and ADP did not assess any
civil penalties for failure to correct deficiencies, or
failure to file a CAP, lending further credence to
licensing and certification, including revocations and denials.
This included denials of renewal applications. Ms. Lira delegated this authority to Mr. Feinberg. Mr. Ozobiani’s signing of a
denial letter approved by Mr. Feinberg was a ministerial act and
did not deprive ADP of authority to issue the denial.
App. 28
Respondent’s argument that the deficiencies had been
corrected prior to the expiration of the 30-day period.
ADP also argued that Respondent’s March 1, 2004
letter was insufficient to confirm that the deficiencies
had been corrected, because it did not state how the
deficiencies had been corrected or the date they had
been corrected. This argument could not be credited.9
9. Respondent argued that it has been prejudiced by substantial delay in these proceedings.
However, a review of the evidence indicates that
Respondent did not submit a notice of defense until
six months after the Statement of Issues had been
filed, and that Respondent requested and was granted continuances on November 11, 2005 and again on
February 22, 2006, and October 2, 2006, delaying the
hearing until December 14, 2006. The record reflects
no requests for continuance of the hearing by ADP.
CONCLUSIONS OF LAW AND DISCUSSION
1. California Health and Safety Code section
11834.36, subdivision (a)(1), provides in pertinent
part, that the Director may suspend or revoke any
license, or deny an application for the extension of the
licensing period on any of the following grounds:
9
Given the rather limited number of methods available to
correct the deficiencies, and the fact that the date of Respondent’s letter made it obvious that the deficiencies had been
corrected prior to the expiration of the 30-day period, there was
no need for Respondent to provide more details.
App. 29
“Violation by the licensee of any provision of this
chapter or regulations adopted pursuant to this
chapter.” Cause exists under Health and Safety Code
section 11834.36 to deny the extension of Respondent’s licensing period because Respondent violated
regulations adopted pursuant to Chapter 7.5 of the
Health and Safety Code (Factual Findings 2 and 4).
2. Cause does not exist under CCR, title 9,
section 10540 to deny the renewal of Respondent’s
license. CCR, title 9, section 10540, subdivision (a),
provides, in pertinent part, that the Department may
deny an application for renewal if the applicant fails
to remedy a deficiency or the applicant is not in
substantial compliance with regulations governing
alcohol and drug treatment programs. The evidence
adduced at hearing showed that prior to the denial of
the renewal application, Respondent had provided
ADP with written verification that “all items have
been brought into compliance to meet your requests.”
(Factual Finding 5.) There was insufficient evidence
adduced to demonstrate that, after March 1, 2004
Respondent’s deficiencies had not been brought into
compliance by the denial date, or that Respondent
was not in substantial compliance (Factual Finding
6). Rather, ADP denied the renewal of Respondent’s
application largely because it believed that Respondent intended to violate ADP’s regulations in the
future (Factual Finding 6). However, the statute
provides that cause for denial exists for actual, not
anticipated, non-compliance.
App. 30
3. California Health and Safety Code section
11834.36, subdivision (a)(4), provides in pertinent
part, that the Director may suspend or revoke any
license, or deny a renewal application, if the licensee
has engaged in conduct in the operation of alcoholism
or drug abuse recovery or treatment facilities that is
inimical to the health, morals, welfare or safety of an
individual . . . receiving services from a facility. Cause
does not exist to deny Respondent’s renewal application under Health and Safety Code section 11834.36,
subdivision (a)(4), as there was no evidence that
Respondent engaged in any conduct inimical to the
health, morals, welfare or safety of any individual
receiving services at the facility. Two of the cited
violations were extremely minor, and none threatened the health or welfare of any client of Respondent; in fact, at the time of the 2004 Class “B”
violation, there were no treatment clients housed at
Respondent’s facility (Factual Finding 2).
4. Respondent argued that its license should
have been “automatically” renewed, pursuant to CCR,
title 9, section 10529.10 Section 10529, subdivision (b)
10
Respondent argued that the underlying Statement of
Issues should have been brought as a revocation action (an
accusation), and that ADP bears the burden of proof in this
matter. We need not resolve this issue here, because, as is
shown, the outcome of this matter does not depend on the
burden of proof. Even assuming, arguendo, that Miracle Star
had the burden of proof, once Miracle Star made a prima facie
case, ADP had the burden of producing countermanding evidence. (California Evidence Code section 550. See, also, Ficken v.
(Continued on following page)
App. 31
provides that “if the licensee complies with the requirements of subsection (a)(2) of the regulation, the
Department shall automatically extend the period of
licensure, unless the Department has petitioned the
court to enjoin operation of the facility, pursuant to
Section 10548, subdivision (f )” Section (a)(2) requires
the licensee to update the licensing information, pay
all licensing fees, pay any outstanding civil penalties,
and maintain a valid fire clearance. Respondent
complied with these conditions (Factual Finding 7).
ADP argued that renewal of a license requires some
action on behalf of ADP, and that renewal is not
“automatic.” In any event, even had the license
renewed by operation of law, ADP is not prohibited
from filing an accusation to revoke Respondent’s
license pursuant to Health and Safety Code section
11836.34, subdivision (a)(1).
5. Respondent argued that it has been prejudiced by substantial delay in these proceedings.
However, Respondent has failed to establish that it
has been prejudiced particularly since the record
indicates that Respondent had no treatment clients
for 10 months prior to the denial of the renewal
application, and that Respondent was responsible for
Jones (1865) 28 Cal. 618; Sargent Fletcher, Inc. v. Able Corp.
(2003) 110 Cal.App.4th 1658 (though the burden of producing
evidence shifts to the other party after the showing of sufficient
evidence to make a prima facie case, that party need not offer
evidence in reply, but failure to do so risks an adverse verdict)).
ADP did not meet its burden of production in this regard.
App. 32
much of the delay (Factual Finding 9). Under these
circumstances, Respondent cannot be heard to complain of delay.
6. The purpose for disciplinary proceedings is to
protect the public, not to punish individuals. Punishment is a task for the criminal courts. (See, e.g. Yakov
v. Board of Medical Examiners (1968) 68 Cal.2d 67.
See, also, Morrison v. State Board of Education (1969)
1 Cal.3d 214, and authorities cited therein.) Under all
the facts and circumstances herein, and given that
ADP retains the right to make unannounced inspections, granting Respondent’s request for license
renewal, subject to Respondent’s presenting current
fire inspection certificates should not pose an undue
risk to the public.
ORDER
WHEREFORE, THE FOLLOWING ORDER is
hereby made:
The Statement of Issues is DISMISSED. Respondent’s request for renewal of its license is
GRANTED, effective on the date that Respondent
provides any necessary updated fire clearances for
the 44664 N. Cedar and 558 Newgrove facilities. If no
such updated clearances are necessary, the license
shall be granted as of the effective date of this decision. Respondent’s 556 address (six beds) shall be
added to the license, at Respondent’s request, upon
that facility’s passing an inspection by ADP.
App. 33
Date:
February 26, 2007
/s/ Sandra L. Hitt
SANDRA L. HITT
Administrative Law Judge
Office of Administrative Hearings
[Proof Of Service Omitted In Printing]
BEFORE THE
STATE OF CALIFORNIA
DEPARTMENT OF ALCOHOL
AND DRUG PROGRAMS
In the Matter of the Statement of Issues Against:
Case No.: ADP-LI-101
OAH No. L2005040650
MIRACLE STAR WOMEN’S
RECOVERY COMMUNITY,
INC., LICENSE NUMBER
19021411AN,
Respondent.
DECISION
The attached Proposed Decision of the Administrative Law Judge is hereby adopted by the Department of Alcohol and Drug Programs as its Decision in
the above-entitled matter.
This Decision shall become effective June 8, 2007.
App. 34
IT IS SO ORDERED
.
DEPARTMENT OF ALCOHOL
AND DRUG PROGRAMS
STATE OF CALIFORNIA
rfm
By /s/ Renée Zito
RENÉE ZITO, LMSW, CASAC
Director
Date:
June 27, 2007
App. 35
Court of Appeal, Second Appellate District,
Division Seven – No. B214489
S192349
IN THE SUPREME COURT OF CALIFORNIA
En Banc
__________________________________________________
MIRACLE STAR WOMEN’S RECOVERING
COMMUNITY, INC., Plaintiff and Respondent,
v.
KATHERINE JETT et al.,
Defendants and Appellants.
__________________________________________________
(Filed Jun. 15, 2011)
The petition for review is denied.
/s/ CANTIL-SAKAUYE
Chief Justice
App. 36
Olaf Arthur Landsgaard, Esq.
Law Offices of Olaf Landsgaard
P.O. Box 2567, 4171 Knox Avenue
Rosamond, CA 93560
661-256-9271
661-256-9212 Fax
State Bar No.: 125747
Attorney for Plaintiff
***********
SUPERIOR COURT OF
THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
MIRACLE STAR WOMEN’S
RECOVERING COMMUNITY
INC., STAR MOFFATT, AND
JEFFREY MOFFATT,
Plaintiffs,
vs
KATHERINE JETT,
INDIVIDUALLY AND IN HER
CAPACITY AS DIRECTOR OF
THE CALIFORNIA STATE
HEALTH AND HUMAN
SERVICES DEPARTMENT
OF ALCOHOL AND DRUG
PROGRAMS; ROBERT ROSE,
DAVID FEINBERG, ISAAC
OZOBANI, AND REBECCA
LIRA, EACH INDIVIDUALLY
AND IN THEIR RESPECTIVE
CAPACITIES WITHIN THE
) CASE NO. MC 01688
) FOURTH AMENDED
) COMPLAINT FOR
) DAMAGES FOR:
)
) 1. VIOLATIONS OF
) 42 U.S.C. §1983 (DAM) AGES)
) 2. VIOLATIONS
) OF 42 U.S.C. § 1983
) (INJUNCTIVE AND
) DECLARATORY
) RELIEF)
) 3. VIOLATION OF
) STATE AND FEDERAL
) ADMINISTRATIVE
) PROCEDURES ACTS;
) 4. VIOLATION OF
) THE FEDERAL FAIR
) HOUSING ACT;
App. 37
STATE OF CALIFORNIA
HEALTH AND HUMAN
SERVICES DEPARTMENT
OF ALCOHOL AND DRUG
PROGRAMS; THE STATE
OF CALIFORNIA HEALTH
AND HUMAN SERVICES
DEPARTMENT OF
ALCOHOL AND DRUG
PROGRAMS; and DOES 1
TO 100, inclusive.
Defendants.
) 5. VIOLATION OF
) THE UNITED STATES
) CONSTITUTION FOR
) BOTH THE 14th AND
) 5th AMENDMENT;
) 6. VIOLATION OF
) AMERICANS WITH
) DISABILITY ACT
) 7. NEGLIGENT AND
) INTENTIONAL IN) TERFERENCE
) 8. VIOLATION OF
) STATE CIVIL RIGHTS
) (Civil Code section 51)
) 9. TORTIOUS
) BREACH OF THE
) COVENANT OF
) GOOD FAITH AND
) FAIR DEALING
) (Filed Feb. 6, 2008)
Plaintiffs Jeffrey Moffatt, Staretta Moffatt, and
Miracle Star Women’s Recovering Community Inc.,
[PLAINTIFF] complains and alleges on information
and belief the following against the DEPARTMENT
OF ALCOHOL AND DRUG PROGRAM, KATHERINE
JETT, INDIVIDUALLY AND IN HER CAPACITY
AS DIRECTOR OF THE CALIFORNIA STATE
HEALTH AND HUMAN SERVICES DEPARTMENT
OF ALCOHOL AND DRUG PROGRAMS; ROBERT
ROSE, DAVID FEINBERG, REBECCA LIRA, GAVIN
MCCLUSKEY, LINDA BRADLEY, AND ISAAC
OZOBANI, EACH INDIVIDUALLY AND IN THEIR
App. 38
RESPECTIVE CAPACITIES ‘WITHIN THE STATE
OF CALIFORNIA HEALTH AND HUMAN SERVICES DEPARTMENT OF ALCOHOL AND DRUG
PROGRAMS; THE STATE OF CALIFORNIA
HEALTH DEPARTMENT OF ALCOHOL AID DRUG
PROGRAMS, and/or DOES 4 through 100 (“DEFENDANTS”):
NATURE OF ACTION
1a. PLAINTIFF seeks in this action to vindicate
the rights of people who have been denied treatment
in North Los Angeles County and people who have
had their licenses to operate alcohol and drug treatment facilities ordered to “cease and desist” without
administrative remedy, and/or suspended, “statement
of issued”, or revoked. The DEPARTMENT OF ALCOHOL AND DRUG PROGRAM FOR THE STATE
OF CALIFORNIA (hereinafter referred to as the
“ADP”) has and continues to order licensees of treatment centers to “cease and desist” based on unwritten
and illegal policies it has. There was and is no legal
authority for the ADP to suspend the licensee’s privileges and impose additional penalties. PLAINTIFF is
informed and believes and thereon alleges that the
ADP and its past and current directors and acting
directors, KATHERINE JETT, and DOE #4 have been
and/or are aware that the ADP lacks the authority to
act on licenses under such circumstances. Indeed, the
ADP has admitted that such suspensions are erroneous and contrary to law by adopting the February 26,
2007 Order After Hearing issued by Judge Sandra L.
App. 39
Hitt. Nevertheless, PLAINTIFF is informed and
believes and thereon alleges that to this very day,
ADP, as a regular pattern and practice, continues to
issue notices of “cease and desist” and impose unlawful penalties upon ADP’s failure to act on renewal
with deliberate indifference to the rights of license
holders.
1b. PLAINTIFF, on behalf on themselves and
all others similarly situated, seek to enjoin DEFENDANTS’ illegal practices and to recover damages
incurred as a result of DEFENDANTS’ actions.
JURISDICTION AND VENUE:
2. The Court has personal jurisdiction over DEFENDANTS because they are residents of the state of
California.
3. Venue is proper in this Court in accordance
with California Code of Civil Procedure § 395(a)
and California Civil Code § 52.1(c) because DEFENDANTS, or some of them, reside in Los Angeles
County and the harms suffered by PLAINTIFF
occurred in Los Angeles County.
PARTIES
4. DEFENDANT KATHERINE JETT was the
acting director of the ADP in or around 2004. PLAINTIFF in [sic] informed and believes and thereon
alleges that DEFENDANT JETT was an authorized
policy-maker for the ADP during the time periods she
App. 40
served as acting director. DEFENDANT JETT’s residence is currently unknown to PLAINTIFF. Said DEFENDANT is sued both in her official and personal
capacity.
5. DEFENDANT DOE #4 was the director of
the ADP beginning in or around February 2007.
PLAINTIFF is informed and believes and thereon
alleges that DEFENDANT DOE #4 was an authorized policy-maker for the ADP during the time
period she served as director. DEFENDANT DOE #4
residence is currently unknown to PLAINTIFF. Said
DEFENDANT is sued both in her official and personal capacity.
6. At all times mentioned herein. DEFENDANTS,
and each of them, were the agents, representatives,
employees, successors, assigns, parents, subsidiaries
and/or affiliates, each of the other, and at all times
pertinent hereto were acting within the course and
scope of their authority as such agents, representatives, employees, successors, assigns, parents, subsidiaries and/or affiliates.
7. MIRACLE STAR WOMEN’S RECOVERING
COMMUNITY INC. (Miracle Star) is and at all
relevant times herein, was a California corporation
duly licensed and doing business in Lancaster, California, for the purpose of advancing the welfare of
alcohol and drug addicts by providing in-patient
alcohol and drug treatment services to the public, as
well as follow-up services for those addicts in recovery, especially in Los Angeles County.
App. 41
8. Jeffrey Moffat is an individual residing in
Lancaster, California. He has been married to
Staretta Moffat throughout the existence of Miracle
Star.
9. Staretta, or “Star” Moffat, is the managing
director of Miracle Star.
10. Defendant State Department of Alcohol and
Drug Programs (ADP) is an administrative agency
created by the California State Legislature to monitor
and regulate drug and alcohol recovery programs in
the State of California.
11. Defendant Katherine Jett is and was the
director of defendant ADP at all relevant times herein.
12. Defendant Rebecca Lira is and was the
deputy director of defendant ADP at all relevant
times herein.
13. Defendant David Feinberg is and was a
Level II investigator of defendant ADP at all relevant
times herein.
14. Defendant Isaac Ozobani was a Level II
investigator of defendant ADP at all relevant times
herein.
15. Defendant Robert Rose is and was a Level I
investigator of defendant ADP at all relevant times
herein.
16. Defendants Does 2, 3 and 4-10 where [sic]
and are investigators/assistants with defendant ADP.
App. 42
FACTS COMMON TO ALL
CAUSES OF ACTION
“Arbitrary and Capricious”
17. “We decided in February, 2004, we were not
going to renew Miracle Star’s license” stated defendant Rebecca Lira, deputy director of the State ADP.
18. Plaintiffs are informed and believe that
Defendant Lira, operating on instructions from her
immediate superior, defendant Katherine Jett, got
together with defendant Robert Rose, defendant Isaac
Ozobani, and defendant David Feinberg – each investigators/supervisors for the defendant State Department of Alcohol and Drug Programs (ADP) – before a
response to an investigative report was due from
MIRACLE STAR WOMEN’S RECOVERING COMMUNITY INC. (referred to as “Miracle Star” herein),
and instructed her co-defendants to deny Miracle
Star’s renewal application without cause.
19. On March, 1, 2004, Miracle Star submitted
documents showing compliance with an inspection
made by defendant, Robert Rose. Miracle Star had
first opened its doors to serving alcoholics and drug
addicts in the year of 1995. The original founders of
the Miracle Star program are Plaintiffs Jeffrey D.
Moffatt and Star Moffatt.
20.
in 1998
ifornia,
Avenue,
Miracle Star became licensed by Defendant
at 44664 N. Cedar Avenue, Lancaster, Cal93534, and since 2001 at 558 Newgrove
Lancaster, California, 93534. The license
App. 43
authorized Plaintiff to provide in-patient alcohol and
drug treatment to 12 adult female clients at the
44664 North Cedar Avenue facility and 12 adult male
clients at the 558 Newgrove Avenue facility, and in
addition, to operate the drug and alcohol facility
under the purview of defendant Alcohol and Drug
Program [“ADP”].
21. In March, 2004, Defendant Feinberg told
Jeff Moffatt, director and Chief Operations Officer of
Miracle Star, that the January 2004 inspection findings would not result in any fines because Feinberg
did not want to allow an appeal from punishment
imposed.
22. After Miracle Star submitted compliance documents in March, 2004, Defendant David Feinberg
checked with his superiors, including defendant Jett,
and decided that because Miracle Star had no way
under the law (at that time) to demand a hearing, he
would punish Miracle Star by simply ignoring them.
23. From February 2004 up to April, 2005, defendants took no action – neither administrative nor
through the courts, against Miracle Star’s license.
24. However, on May 19, 2004, defendant Isaac
Ozobani sent a letter to Miracle Star telling them to
“cease and desist” all operations.
25. “We are setting this up so you do not have
any appeal rights” said defendant David Feinberg as
an ADP officer to Jeff Moffatt, CEO of Miracle Star, in
March 2004.
App. 44
26. The impossibility of appeal was recognized
by the State Office of Administrative Hearing’s chief
judge Janis Rovner in her letter of June 3, 2004 to
Star Moffat, Jeffrey D. Moffat, and Miracle Star and
stated:
I have received your letters dated April 28
and May 27, 2004 requesting, among other
things, that the Office of Administrative
Hearings (OAH) set a hearing and issue a
stay order regarding licensing issues between your entity, Miracle Star, and ADP.
There is no authority for OAH to act on your
request. . . .
. . . Under sections 11415.20 and 11425.50, it
is up to the administrative agency, in this
case ADP, to determine if a hearing is needed
and to conduct the hearing by referring it to
OAH. There is no provision for an entity
such as yours to initiate an administrative
hearing. . . .”
27. Finally, on April 7, 2005, defendants prepared a statement of issues against Miracle Star and
filed them with the Office of Administrative Hearings
on April 26, 2005 after sending a fax with them to
Miracle Star on April 22, 2005.
28. Office of Administrative Hearings Judge
Sandra Hitt issued an order in favor of Miracle Star
and against defendants on the statement of issues.
App. 45
“ORDER WHEREFORE, THE FOLLOWING ORDER is hereby made:
The Statement of Issues is DISMISSED.
[Miracle Star’s request] for renewal of its license is GRANTED . . . ” (February, 2007 order after hearing made by Sandra L. Hitt,
Administrative Law Judge). Miracle Star
won, the State was wrong.
29. The Statement of Issues was heard and
decided by Office of Administrative Hearings Judge,
Sandra L. Hitt. The gist of her February 26, 2007
order:
The license, the law, and the facts, all
show plaintiffs were not “operating beyond
the conditions” of its license.
Plaintiffs provided timely certification of
correction. Defendant ADP did not write
back that there was need for additional verification. Therefore, as a matter of right, Miracle Star was entitled to have its license
# 190214AN reactivated immediately (subject to proof of a current fire clearance).
30. The “PROPOSED DECISION, FINDINGS
OF FACT, CONCLUSIONS OF LAW, and ORDER of
Sandra L. Hitt, Administrative Law Judge, Office of
Administrative Hearings” was adopted by defendant
State ADP.
31. Included in the findings of fact and conclusions of law made by Judge Hitt is: “The purpose
for disciplinary proceedings is to protect the public,
App. 46
not to punish individuals. Punishment is a task for
the criminal courts.” page 6, item 6, lines 1 through 2
of order.
32. The excuse set forth by the defendants to
deny the renewal application was that Plaintiffs were
not allowed to argue that following treatment, recovery is day to day – and that a positive living environment is essential to maintaining sobriety.
33. Defendant denied Miracle Star’s Government
Code claim for damages and then filed a “Statement
of Issues” to be heard by an administrative law judge.
34. After hearing the matter in December, 2006,
Office of Administrative Hearings Judge Sandra Hitt
issued an order in favor of Miracle Star and against
defendant State ADP on its statement of issues.
35. After the order was issued, Defendant ADP
adopted the “Order” of the Office of Administrative
Hearings (OAH) Court on June 8, 2007.
36. “ADP denied the renewal of Respondent’s
application [made March 1, 2004] largely because it
believed that Respondent intended to violate ADP’s
regulations in the future”. Factual finding #6 – by
Judge Sandra Hitt. Opinion now adopted by defendant ADP.
37. Defendants’ position on people who completed treatment not being able to remain as part of
“recovery” (an alcoholic, for example, is either in
recovery or back to abusing alcohol) was an excuse to
get back at Miracle Star for whistle-blowing.
App. 47
38. “Finally ADP did not assess any monetary
penalties against Miracle Star nor petition the court
to enjoin its operation.” Factual finding #6 – by Judge
Sandra Hitt. Opinion now adopted by defendant ADP.
39. Defendants, and each of them, ordered
Miracle Star to evict all residents not in the State
treatment program, even though the residents had
just completed the program.
40. Separately, in response to the bi-annual
application sent to Miracle Star by defendant ADP,
Miracle Star applied for extension to its license for
existing facilities in March 2004.
41. Miracle Star blew the whistle on a corrupt
non-profit that had a State-granted monopoly to allocate where parolees and Proposition 36 enrollees
obtained treatment.
42. 42 USC 1983 provides: “Every person who,
under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .”.
43. Article 1, Section 10 of the United States
Constitution also does not permit a state to pass a
law impairing the obligations of contracts: “ . . . No
App. 48
State shall . . . pass any . . . law impairing the obligations of contracts.”
44. Defendants’ pre-determined instruction to
deny Miracle Star’s renewal application was outside
and contrary to the law though done in the course
and scope of the defendants’ duties while working for
the defendant state department of ADP.
45. The defendants, and each of them, “applied
and administered by public authority with an evil eye
and an unequal hand, so as practically to unjust and
illegal discriminations between persons in similar
circumstances, material to their rights.” Yick Wo v.
Hopkins (1886). This is repugnant to both the Constitution of the United States and Constitution of the
State of California.
46. On March 25, 2003, the director of an
organization with a State-granted monopoly, while
under investigation by both the State and Federal
government for its allocation of funds to treat Proposition 36 enrollees, committed suicide.
47. A citation was written by defendant Robert
Rose following a January 28, 2004 inspection of three
facilities – two existing and one proposed. The citation itself defines deficiencies at page 6:
48. “DEFICIENCIES – A deficiency is a failure
to comply with any provision of the regulations
pursuant to Chapter 7.5 of Part 2 of Division 10.5 of
the Health and Safety Code. Notices of deficiency
shall specify: the section number, title, and code of
App. 49
each statute or regulation which has been violated;
the manner in which the licensee has failed to comply
with a specified statute or regulation, and the particular place or area of the facility in which it occurred;
the date by which each deficiency shall be corrected;
amount of the civil penalty to be assessed in accordance with Title 9, Chapter 5, Sections 10547, CCR,
and the date the Department shall begin to assess the
penalty, if the licensee fails to correct the notice
deficiencies or submit a corrective action plan (CAP).”
49.
Defendant Rose wrote:
“THE FOLLOWING DEFICIENCIES WERE
NOTED FOR TITLE 9, LICENSING REGULATIONS AND ARE DUE NO LATER THAN
FEBRUARY 28, 2004:
1)
Section 10513 – Class B: The licensee shall
not operate a facility beyond the conditions
and limitations specified on the license, 558
Newgrove Avenue address.
2)
Section 10517(a)(1) – Class B: A valid and
appropriate fire clearance issued from the
authority having jurisdiction for the area for
which the facility is located.
3)
Section 10581(a) – Class C: 44664 North
Cedar address, bedroom number one requires light bulbs and light cover
4)
Section 10584(f)(1) – Class C: 558 Newgrove
Avenue address, a container with a tight
fitting lid is required for the kitchen”.
App. 50
50. There are a number of regulations that
apply to residential alcoholism or drug abuse recovery
or treatment facilities. These are found in Chapter 5,
Title 9 of the California Code of Regulations (CCR).
CCR 10545(e) states:
Within ten (10) days of receipt by the
Department of the written verification
and/or corrective action plan, the Department shall notify the licensee, in writing by
first class mail, whether the written verification and/or corrective action plan has been
approved.
51. The Department never communicated in
writing anything at all during the months of March
and April 2004.
52. Further, the defendant State ADP failed to
articulate or define how Miracle Star allegedly operated “a facility beyond the conditions and limitations
specified on the license, 558 Newgrove Avenue address.”
53. Miracle Star’s complied with the January
28, 2004 notice issued by defendant Rose. Defendant
ADP never provided any notification to plaintiff (licensee) in writing “whether the written verification”
of the repairs and “corrections” had or had not “been
approved”.
54. The existing facilities, already had appropriate fire clearances and proof of this was provided
to the defendant ADP within 30 days.
App. 51
55. Section 10529 of the Administrative Code of
California provides for automatic extension of existing license such as that possessed by plaintiff and
plaintiff complied with rules for same.
56. Section 10529 of the Administrative Code of
California provides:
. . . (b) if the licensee complies with
the requirements of Subsection (a)(2) of this
regulation, the Department shall automatically extend the period of licensure, unless
the Department has petitioned the court to
enjoin operation of the facility, pursuant to
Section 10548(f).
57. Plaintiffs complied with all the requirements of Subsection (a)(2) prior to May 1, 2004.
58. Defendants never petitioned
operation of Plaintiff ’s facility.
to
enjoin
59. The proposed 556 Newgrove facility obtained the fire safety clearance for the proposed 6 bed
facility on February 26, 2004 and proof of this was
submitted on March 1, 2004 as well.
60. The remaining alleged Class B deficiency of
“operating beyond the conditions and limitations” was
vague, unmerited, and discriminatory and Judge Hitt
found them meritless.
61. The petty deficiencies were easily repaired
within 30 days of the notice.
App. 52
62. Everything which required “correction”
within 30 days was repaired and/or taken care of
within the 30 days and defendant was informed, of
same by letter on or about March 1, 2004.
63. Since 2000, the existing Miracle Star facilities had fire safety approval.
64. The alleged “deficiencies” were without
basis or merit.
65. There were no identifiable Class B “deficiencies”. Certification of correction and proof of fire
safety was provided, timely. Defendant State Department of ADP never wrote and disapproved of the
verification.
66. Defendant State Department of ADP and its
employees, including defendant Director Jett, acted
willfully and negligently, discriminating against
plaintiffs both in application as well as in violation of
the law. Said discrimination was in retribution for
blowing the whistle on the San Francisco operation.
67. Defendants, and each of them, wrongfully
took Plaintiff ’s License Number 190214AN, by condoning the sending of a letter dated May 21, 2004, for
facility sites 44664 North Cedar Address and 558
West Newgrove Address, both in the City of Lancaster, California. Defendant Katherine Jett failed to act
as required under Health and Safety Code Section
11834.36 (regarding the revocation of Plaintiff ’s
license) in order to punish plaintiffs and at the same
time, provide no avenue of appeal.
App. 53
68. Additionally, Defendants denied, without
cause, Plaintiffs request to have facility site 556
Newgrove Avenue added to existing License Number
190214AN, in violation of Health and Safety Code
Section 11834.36.
69. It wasn’t until on or about April 26, 2005,
that defendants filed a statement of issues with the
Office of Administrative Hearings to address the
license renewal as well as the denial of the application to have the facility added.
70. Defendant’s letter dated May 21, 2004, included a “Cease and Desist Order” revoking Plaintiff ’s
License Number 190214AN, and did not afford Plaintiff any State or Federal Administrative Due Process.
Defendants are required by law to file an “Accusation” under sections 11503 and 11504 of the Government Code. Defendants never filed an accusation.
71. The Notice of Deficiency dated 1/28/2004,
and sent February 4, 2004 by defendant Robert Rose
in his capacity as Reviewer of State of California
Health and Human Services Agency Department of
Alcohol and Drug Programs, willfully and/or negligently and discriminatorily alleged violations against
Plaintiff under California Code of Regulation Title 9
Section 10513.
72. On May 21, 2004 Defendants, through defendant Isaac Ozobani – purportedly acting on behalf
of defendant David Feinberg (no longer an employee
of defendant State ADP), in turn purportedly acting
App. 54
for the Director, defendant Katherine Jett, issued a
“Cease and Desist Order,” letter to Plaintiff.
73. The letter from Defendant date May 21,
2004 stated:
“Without a valid license from ADP you are
ordered to immediately cease and desist operation and providing any alcohol and/or
other drug (AOD) services at Miracle Star
Rehabilitation Center located at 44664 North
Cedar Avenue and 558 Newgrove Avenue,
Lancaster, CA 93534.
Failure to cease and desist providing AOD
Services immediately at these locations shall
result in a citation for operating an AOD
program without a license.”
74. Defendants delayed Plaintiff ’s access to due
process and deprived Plaintiff the right to a fair
hearing, administrative hearing or federal due process hearing within a timely manner. As such Defendants are in violation of the U.S.C. Title 42,
Chapter 21 Section 1983.
75. Plaintiff has suffered damages reasonably
estimated at $2,100,000 due to the actions of defendants.
App. 55
FIRST CAUSE OF ACTION
Damages
(By PLAINTIFFS in their individual
capacity against DEFENDANTS and
Does 1-100 in their personal capacity)
VIOLATIONS OF 42 U.S.C. § 1983
76. PLAINTIFF hereby incorporates by reference paragraphs 1 through 75 herein, as if set forth
in full.
77. The actions of KATHERINE JETT, INDIVIDUALLY; ROBERT ROSE, DAVID FEINBERG,
REBECCA LIRA, GAVIN MCCLUSKEY, LINDA
BRADLEY, AND ISAAC OZOBANI, EACH INDIVIDUALLY; and DOES 4 through 50, each individually
deprived PLAINTIFFS of procedural and substantive
Due Process rights conferred upon them by the Due
Process Clause of the Fourteenth Amendment to the
United States Constitution and the Just Compensation Clause of the Fifth Amendment. In particular, a
license to operate a treatment center, once issued, is a
property right possessed by PLAINTIFF. The ADP
can only revoke, suspend, or fail to renew said licenses
if authorized by statute to do so. Nonetheless, these
DEFENDANTS failed to renew the treatment licenses of PLAINTIFF without any legal authority to do
so. The actions of these DEFENDANTS and DOES 4100 in this regard were arbitrary and capricious and
therefore violated the substantive Due Process rights
of PLAINTIFF. In addition, PLAINTIFF’S procedural
Due Process rights were violated because there was
App. 56
no “process” by which PLAINTIFF could challenge
the failure to renew their licenses to operate.
78. The deprivations of the procedural and
substantive Due Process rights of PLAINTIFF were
a proximate result of the policies, procedures, practices and/or customs maintained by DEFENDANTS
KATHERINE JETT, INDIVIDUALLY; ROBERT
ROSE, DAVID FEINBERG, REBECCA LIRA, GAVIN
MCCLUSKEY, LINDA BRADLEY, AND ISAAC OZOBANI, EACH INDIVIDUALLY; and DOES 4 through
100. In particular, DEFENDANTS and DOES 4-100
have maintained policies, procedures, practices, and/or
customs of failing to renew licenses to run treatment
centers merely upon a expression of contrary opinion,
even though there is no legal authority for such an
act. Said policies, procedures, customs and practices
evidence a deliberate indifference to the constitutional
rights of PLAINTIFF. This indifference is and was
manifested by the failure to change, correct, revoke,
or rescind these policies, procedures, practices and/or
customs in light of prior knowledge by DEFENDANTS and DOES 4-100 of indistinguishably similar
incidents of unjustified failures to renew, suspensions
and/or revocations of licenses to operate treatment
centers.
79. PLAINTIFFS will suffer immediate and
irreparable injury for which there is no adequate
remedy at law if the aforementioned policies, procedures, practices and/or customs of suspending licenses to operate their facility as a State licensed
treatment. Especially since on January 30, 2007
App. 57
the City of Lancaster, through its agent Elizabeth
Brubaker, refused to give plaintiffs an application to
renew their business license with the City of Lancaster. Though an April, 2007 City ordinance regarding
“Group Homes” specifically excludes residences dedicated to helping drug and alcohol addicts, the City of
Lancaster is preempted from taking such a position
by State law preemption.
80. DEFENDANTS KATHERINE JETT, INDIVIDUALLY; ROBERT ROSE, DAVID FEINBERG,
REBECCA LIRA, GAVIN MCCLUSKEY, LINDA
BRADLEY, AND ISAAC OZOBANI, EACH INDIVIDUALLY; and/or DOES 4 through 100, as directors
and/or employees of the DMV, were responsible for
ensuring that the policies, procedures, practices and/
or customs of the ADP did not violate the Constitutional Due Process rights, including the property rights,
of PLAINTIFF. PLAINTIFF is informed and believes
and thereon alleges that these defendants were
aware of the constitutional deprivations described
above but took no actions to remedy the situation,
thereby condoning, encouraging, and/or ratifying the
constitutional deprivations which occurred. PLAINTIFF therefore sues DEFENDANTS KATHERINE
JETT, INDIVIDUALLY; ROBERT ROSE, DAVID
FEINBERG, REBECCA LIRA, GAVIN MCCLUSKEY,
LINDA BRADLEY, AND ISAAC OZOBANI, EACH
INDIVIDUALLY; and DOES 4-100, as directors and/
or employees of the ADP, in their personal capacities
for damages.
App. 58
81. DEFENDANTS KATHERINE JETT, INDIVIDUALLY; ROBERT ROSE, DAVID FEINBERG,
REBECCA LIRA, GAVIN MCCLUSKEY, LINDA
BRADLEY, AND ISAAC OZOBANI, EACH INDIVIDUALLY AND DOES 4-50 each acted with deliberate
indifference to the rights of PLAINTIFF and, as a
direct and legal result of the acts and omissions of
these defendants, and each of them, PLAINTIFF [sic]
have suffered damages in an amount to be proven at
trial.
82. The aforementioned acts of the individual
DEFENDANTS KATHERINE JETT, ROBERT
ROSE, DAVID FEINBERG, REBECCA LIRA, GAVIN
MCCLUSKEY, LINDA BRADLEY, AND ISAAC OZOBANI, and/or DOES 4 through 100, inclusive, were
willful, wanton, malicious and oppressive thereby
justifying the awarding of exemplary and punitive
damages as to these defendants.
SECOND CAUSE OF ACTION
VIOLATIONS OF 42 U.S.C. § 1983
Injunctive and Declaratory Relief
(By PLAINTIFF in his individual
capacity Against name DEFENDANTS
and Does 4-100 in their official capacity)
83. PLAINTIFF hereby incorporates by reference paragraphs 1 through 80 herein, as if set forth
in full.
App. 59
84. The defendant State ADP is, without argument, accountable in a 42 USC 1983 action for
declaratory and injunctive relief. The Office of Administrative Hearings. (OHA) declared the defendant
State ADP was wrong.
85. Declaratory relief sought includes the following:
A. The law applied to plaintiff is unconstitutionally vague as written; and
B. Defendant ADP’s application and procedures
are unconstitutional as applied to plaintiffs; and
C. Aftercare, Sober Living, Transitional or
Continuum treatment in an Integral facility is
consistent with federal law and state policy –
and absent any express regulation to the contrary, is permissible under a license to house
patients of a state treatment program; and
D. Defendant ADP’s rule against “housing
persons not in treatment” is an underground
regulation.
E.
Defendant ADP’s should be ordered to:
1. Submit its underground regulation about
transitional housing through the administrative law review process;
2. Follow its own written policy as well as
state law and respond, in writing, when a
licensee submits proof of corrective measures
(i.e. fire clearance); and
App. 60
3. Establish an appeals process which allows for immediate hearing once a license is
not renewed (though requested) or whenever
a “cease and desist” letter – or its ilk – are
sent out to a current or former licensee – as
required by the Administrative Procedures
Act and the Health and Safety Code.
86. Every rule, regulation, order, or standard of
general application adopted by a state agency to
govern its procedure must be adopted as a regulation
and filed with the Secretary of State. Govt. Code
section 11342.600 (regulation defined).
87. The aforementioned acts of DEFENDANTS,
and each of them, interfered with the exercise and/or
enjoyment of rights secured by the Constitution and
laws of the United States and the Constitution and
laws of California, including, but not limited to, procedural and substantive Due Process rights. Said interference was accomplished by means of threats,
intimidation, and coercion perpetrated by DEFENDANTS.
88. As a direct and legal result of the acts and
omissions of these defendants, and each of them,
PLAINTIFF and members of the PLAINTIFF CLASS
have suffered damages in an amount to proven at
trial.
89. PLAINTIFF will suffer immediate and irreparable injury for which there is no adequate
remedy at law if the aforementioned acts of DEFENDANT’S are allowed to continue. PLAINTIFF
App. 61
therefore seeks injunctive relief, both preliminary
and permanent, to stop DEFENDANTS’ unlawful
acts described above.
90. PLAINTIFF also seeks to recover the costs
of this suit and, pursuant to California Civil Code
§ 52.1(h), reasonable attorney fees. The aforementioned acts of DEFENDANTS violated the due process rights of PLAINTIFF as guaranteed by Article 1,
§ 7 of the California Constitution.
91. PLAINTIFF and members of the PLAINTIFF CLASS will suffer immediate and irreparable
injury for which there is no adequate remedy at law if
the aforementioned acts of DEFENDANT’S are
allowed to continue. PLAINTIFF therefore seeks injunctive relief, both preliminary and permanent, to
stop DEFENDANT’S unlawful acts described above.
92. PLAINTIFF is further entitled to recover
from DEFENDANTS his reasonable costs and attorney fees incurred in bringing this action pursuant to
California Code of Civil Procedure § 1021.5.
THIRD CAUSE OF ACTION
VIOLATION OF STATE AND FEDERAL
ADMINISTRATIVE PROCEDURES ACTS
As against all Defendants inclusive:
93. Plaintiff incorporates the language and
facts alleged in paragraphs 1-92.
App. 62
94. UNDERGROUND REGULATIONS: An underground regulation is a rule or policy of an agency
that has the effect of a regulation, but that was not
adopted pursuant to the Administrative Procedures
Act.
These underground regulations are unlawful:
(Gov C) 11347.5 states:
No state agency shall issue, utilize, enforce, or
attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of
general application, or other rule, which is a
“regulation” under the APA unless it has been
adopted as a regulation pursuant to the APA and
filed with the Secretary of State.”
The duck rule: If an agency rule looks like a
regulation, reads like a regulation, and acts like a
regulation, it will be treated by the courts as a regulation whether or not the adopting agency has labeled
it as a regulation. The prohibition against underground regulation means that an agency must follow
procedures before implementing rules or regulations
that have the force of law.
95. Government Code Section 11505(c) requires
an accusation be served personally or by registered
mail.
96. The defendants decided to punish plaintiffs
for the idea that someone who completes treatment in
a State program remains “in recovery” for the rest of
their lives – and the idea that availability of housing
App. 63
one “in recovery” is beneficial to someone who has
just completed the State’s treatment program.
97. The State’s interpretation of whom is in
“recovery”, in this case, was an underground regulation.
98. The State’s use of underground regulations
(regulations which had not been tested by allowing
the public to comment or request a hearing as is
required by the California Administrative Procedures
Act) and/or their implementation of policy effectively
discriminates against disabled persons and as a
matter of fact, required plaintiffs discriminate – and
through out – disabled persons as a condition of
keeping the state license.
99. California law, specifically Government
Code section 11135 prohibits discrimination based on
mental or physical disability
100. Defendant ADP did not serve by Plaintiff
by personal service or registered mail and nor did
Defendant include a blank Notice of Defense, as required in Government Code Section 11505(c).
101. Defendant ADP failed to abide by the Federal Administrative Procedure Act (Chapter 5 (commencing with Section 500) of Title 5 of the United
States Code which also prohibits the use of underground regulations.
102. The State of California, specifically the Alcohol and Drug Program (ADP), received federal
monies to be used in treatment programs.
App. 64
103. The Federal Administrative Procedure Act
requires State agencies comply with the federal APA
if the State receives federal funds.
104. Defendants chose to use an “in-house” interpretation of who may receive treatment after
formal treatment was done, and chose to take no
formal action against Plaintiffs while claiming plaintiffs’ license “expired” even though plaintiffs had
complied with all regulations needed for the license to
renew.
105. Defendant Katherine Jett did not revoke
Plaintiff ’s License #190214AN choosing rather to
allow an illegal assignment of her duties to a lowlevel assistant in sending the May, 2004 letter which
directed plaintiffs “cease and desist” all treatment
activity requiring a state license.
106. Defendants’ failure to afford Plaintiff with
Federal Administrative due processes is an inexcusable neglect of Defendant’s duties, constitutes despicable conduct, and therefore defendant is liable for
exemplary damages under federal law.
107. Defendants are also liable pursuant to
Government Code Section 19572.
108. Defendant’s failure to afford Plaintiff with
Federal Administrative due processes violates the Federal Administrative Procedure Act (Chapter 5 (commencing with Section 500) of Title 5 of the United
States Code.
App. 65
109. As a result of defendants’ conduct plaintiff
has suffered actual damages in excess of $2,100,000
and is further entitled to exemplary damages.
FOURTH CAUSE OF ACTION
Against all named defendants
VIOLATION OF THE
FEDERAL FAIR HOUSING ACT
(Demurrer Sustained without leave to amend)
FIFTH CAUSE OF ACTION
Against all named defendants
VIOLATION OF THE UNITED STATES
CONSTITUTION TO THE 14TH
AMENDMENT AND THE 5TH AMENDMENT
110. Plaintiffs incorporate the language and
facts alleged in the first 80 paragraphs and paragraphs 93 to 109.
111. Defendants’ actions have denied plaintiffs
and their tenant’s due process and equal protection
under the law (i.e. Yick Wo v. Hopkins) and have
treated plaintiffs differently because they were “whistle blowers”.
112. Under section 10529 of the California
Administrative Code, the exclusive remedy for taking action against an extended license is for the
App. 66
defendant State to petition the court to enjoin the
operation of the facility. This was not done.
113. The Defendant State’s treatment of plaintiff ’s rights is discriminatory application of law
in violation of equal protection (United Ins. Co. v
Maloney (1954) 127 CA2d 155, 273 P2d 579 under
both the United States’ and California constitutions.
114. As a result of defendants’ conduct plaintiff
has suffered actual damages in excess of $2,100,000.
SIXTH CAUSE OF ACTION
Against all named defendants
VIOLATION OF AMERICANS
WITH DISABILITY ACT
115. Plaintiffs incorporate the language and
facts alleged in the first 80 paragraphs and paragraphs 94 to 114.
116. The defendants decided to punish plaintiffs
for the idea that someone who completes treatment in
a State program remains “in recovery” for the rest of
their lives – and the idea that availability of housing
one “in recovery” is beneficial to someone who has
just completed the State’s treatment program.
117. The State’s use of underground regulations
(regulations which had not been tested by allowing
the public to comment or request a hearing as is
required by the California Administrative Procedures
Act) and/or their implementation of policy effectively
App. 67
discriminates against disabled persons and as a matter of fact, required plaintiffs discriminate against
disabled persons as a condition of keeping the state
license.
118. California law, specifically Government
Code section 11135, prohibits discrimination based on
mental or physical disability.
119. Alcoholism and drug addiction are disabilities.
120. Defendants discriminated against plaintiffs and their clients by requiring their clients find
other housing once the Defendants program of treatment was completed, even though they were still in
recovery.
121. Defendant’s decisions have been effectively
set aside – at least in part because they discriminate
against people with Disabilities.
122. Miracle Star works with recovering alcoholics and drug addicts.
123. Defendants actions violate the Americans
with Disabilities Act (ADA) (42 U.S.C. § 12132) and
Government Code section 11135(a)(b).
124. “The ADP has not proceeded in the manner
required by law.” (Code Civ. Proc., § 1094.5, subd.
(b).), using underground regulations and unfounded
excuses to punish Plaintiffs.
125. In Thompson v. Davis (9th Cir. 2002) 295
F.3d 890, the Ninth Circuit held that prisoners who
App. 68
have had an addiction to drugs, but are not current
drug abusers, have a disability within the meaning of
the ADA, and cannot be categorically excluded from
eligibility for parole based upon their status as drug
addicts.
126. Here, we are dealing with various levels of
treatment, one full treatment, and the next stage of
supervised treatment in the form of a sober living or
transitional site.
127. The court, however, also expressly recognized that the ADA did not preclude consideration of
the history of substance abuse, in an individualized
assessment of the prisoner’s suitability for parole. (Id.
at p. 894.) (See id. at p. 897 [an essential element of a
claim under the ADA is that the claimant was denied
a benefit, or excluded, based upon a disability].)
128. Plaintiffs were denied benefit of a license
and certification, because of its transitional treatment program, which were no different than other
established programs, such as Good News Recovery,
infra.
129. Other programs exist and existed in the
State from 2002 to the present, allowing transitional
housing in the same building or complex as a treatment center.
App. 69
SEVENTH CAUSE OF ACTION FOR NEGLECT
AND/OR INTENTIONAL INTERFERENCE
WITH PROSPECTIVE ECONOMIC
ADVANTAGE AGAINST ALL DEFENDANTS
(Demurrer Sustained, without leave to amend)
EIGHTH CAUSE OF ACTION FOR
VIOLATION OF THE CIVIL RIGHTS
(CIVIL CODE SECTION 51)
ILLEGAL EXPENDITURE OF FUNDS
CALIFORNIA CODE OF
CIVIL PROCEDURE § 526a
Injunctive Relief
130. Plaintiffs incorporate the language and
facts alleged in the first 80 paragraphs and paragraphs 86 to 102, paragraphs 104 to 114 and paragraphs 115-120.
131. PLAINTIFF is a taxpayer and has paid
state and local taxes in the past year.
132. The expenditure of public funds to suspend
and/or revoke and/or punish licenses merely for
having a philosophical difference of opinion constitutes an “illegal expenditure”. The activities of DEFENDANT JETT, ET. AL and Does 4-100 as alleged
herein have resulted in, and unless restrained will
continue to result in, the illegal expenditure, waste
of, injury to the tax paying residents of the state of
App. 70
California. An injunction against DEFENDANT
JETT, ET. AL and Does 4-100 is therefore warranted
to restrain the illegal expenditure, waste of, or injury
to the tax paying residents of the state of California.
133. DEFENDANT JETT ET. AL and DOES 4100’s conduct is causing and will continue to cause
immediate injury to the State unless restrained by
this court and PLAINTIFF has no adequate remedy
at law.
134. PLAINTIFF is further entitled to recover
from DEFENDANT JETT ET. AL and DOES 4-100
reasonable costs and attorney fees incurred in bringing this action pursuant to California Code of Civil
Procedure § 1021.5.
135. The defendants decided to punish plaintiffs
for the idea that someone who completes treatment in
a State program remains “in recovery” for the rest of
their lives – and the idea that availability of housing
one “in recovery” is beneficial to someone who has
just completed the State’s treatment program.
136. The State’s use of underground regulations
(regulations which had not been tested by allowing
the public to comment or request a hearing as is
required by the California Administrative Procedures
Act) and/or their implementation of policy effectively
discriminates against disabled persons and as a
matter of fact, required plaintiffs discriminate – and
through out – disabled persons as a condition of
keeping the state license.
App. 71
137. California law, specifically Government
Code section 11135 prohibits discrimination based on
mental or physical disability:
“(a) No person in the State of California shall,
on the basis of . . . disability, be unlawfully denied full and equal access to the benefits of, or be
unlawfully subjected to discrimination under, any
program or activity that is conducted, operated,
or administered by the state or by any state
agency, is funded directly by the state, or receives
any financial assistance from the state.
(b) With respect to discrimination on the basis of disability, programs and activities subject
to subdivision (a) shall meet the protections and
prohibitions contained in Section 202 of the
Americans with Disabilities Act of 1990 (42
U.S.C. Sec. 12132), and the federal rules and
regulations adopted in implementation thereof,
except that if the laws of this state prescribe
stronger protections and prohibitions, the programs and activities subject to subdivision (a)
shall be subject to the stronger protections and
prohibitions.
(c) As used in this section, “disability” means
any mental or physical disability as defined in
Section 12926.
138. Defendants discriminated against plaintiffs and their clients by requiring their clients find
other housing and housing outside of the complex
once the Defendants program of treatment was
completed.
App. 72
139. As a result, plaintiff has also suffered damages in an undetermined amount at this time.
NINTH CAUSE OF ACTION
FOR TORTIOUS BREACH OF THE
COVENANT OF GOOD FAITH AND FAIR
DEALING AGAINST ALL DEFENDANTS
(Demurrer Sustained, without leave to amend)
DEMAND FOR JURY TRIAL
Plaintiff hereby demands that the above referenced
matter be heard by a jury trial on this matter.
PRAYER
PRAYER FOR RELIEF
WHEREFORE, PLAINTIFF prays judgment as follows:
1. For injunctive relief to stop DEFENDANT’S illegal
practices;
2. Declaratory relief be granted with the court
making the following orders:
A. The law applied to plaintiff is unconstitutionally vague as written; and
B. Defendant ADP’s application and procedures
are unconstitutional as applied to plaintiffs; and
C. Aftercare, Sober Living, Transitional or Continuum treatment in an Integral facility is consistent with federal law and state policy – and
App. 73
absent any express regulation to the contrary, is
permissible under a license to house patients of a
state treatment program; and
D. Defendant ADP’s rule against “housing persons not in treatment” is an underground regulation.
E. Defendant ADP’s is to:
1. Submit its underground regulation about
transitional housing through the administrative law review process;
2. Follow its own written policy as well as
state law and respond, in writing, when a licensee submits proof of corrective measures
(i.e. fire clearance); and
3. Establish an appeals process which allows for immediate hearing once a license is
not renewed (though requested) or whenever
a “cease and desist” letter – or its ilk – are
sent out to a current or former licensee – as
required by the Administrative Procedures
Act and the Health and Safety Code.
3. For general and compensatory damages, according to proof;
4.
For interest accrued to date;
5.
For costs of the suit incurred herein;
6. For loss of earnings, according to proof;
7. For punitive damages and exemplary damages,
according to proof;
App. 74
8. For attorney fees and costs pursuant to 42 U.S.C.
§ 1988, California Civil Code § 52.1(h), and California
Code of Civil Procedure § 1021.5;
9. For such other and further relief that the Court
may deem just and proper.
DEMAND FOR JURY TRIAL
PLAINTIFF further requests a trial by jury on
all issues so triable.
Dated: February 6, 2008
Olaf Landsgaard,
Attorney for Plaintiff,
Miracle Star Women’s
Recovering Community, Inc.
App. 75
IN THE COURT OF APPEAL
FOR THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
MIRACLE STAR WOMEN’S ) Court of Appeal
RECOVERING COMMUNITY, ) Case No. B214489
INC.,
) Case No. MC016888
)
Plaintiffs/Respondents,
)
v.
)
)
KATHERINE JETT, et al.,
)
Defendants/Appellants.
)
On Appeal from a Decision of the
Los Angeles Superior Court
Robert H. O’Brien, Judge Presiding
-----------------------------------------------------------------------
RESPONDENT’S BRIEF
-----------------------------------------------------------------------
(Filed Apr. 26, 2010)
[Timely under CRC, rule 8.25(b)(3)(B)]
Janice R. Mazur, SBN 144611
William E. Mazur, Jr., SBN 166014
MAZUR & MAZUR
13465 Camino Canada
Suite 106, No. 103
El Cajon, CA 92021
Tel: (888) 810-5950
Fax: (888) 447-7085
Attorneys for Respondent
*
*
*
App. 76
[12] render a proper verdict based on its conclusions
of fact.
II.
THE TRIAL COURT PROPERLY DENIED
APPELLANTS’ MOTIONS FOR DIRECTED
VERDICT, TO DISMISS AND FOR JUDGMENT
ON THE PLEADINGS BECAUSE THE LAW
PERMITS AN AWARD OF MONEY DAMAGES
IN THIS CASE
Appellants contend that the trial court erred
when it denied their motions for directed verdict, to
dismiss the case and for judgment on the pleadings
because no right to damages exists for alleged due
process violations where there are alternative legal
remedies. As will be shown, the appellants are mistaken. The trial court correctly applied the law and
correctly denied the motions.
A. An action for damages based on a Constitutional violation is permitted where, as
here, the violation is tied to a common law
or statutory action
Appellants rely on Katzberg v. The Regents of the
University of California (2002) 29 Cal.4th 300 and
Bonner v. City of Santa Ana, supra 45 Cal.App.4th
1465 for the proposition that a plaintiff has no
[13] right to recover money damages based on a
Constitutional violation where alternative remedies
exist. (AOB 9-19.) Putting aside, for the moment, the
App. 77
appellant’s misinterpretation of the Katzberg analysis
(more on this below), the appellants’ argument fails
because this case falls completely outside the scope of
Katzberg’s holding.
In Katzberg, the plaintiff was a professor who
had been removed as Chairperson of his department
during an investigation of alleged mishandling of
funds. Plaintiff sued, claiming he had been deprived
of a due process liberty interest under the California
Constitution when the defendant failed to provide
him with a “name-clearing hearing”. It was conceded
that Katzberg’s claim was based only on a liberty
interest, and that, because the chairmanship was an
at-will position, he had no property interest in maintaining it.
The sole question presented to the court was
whether an action for damages is available to remedy
a violation of the state constitution which is not tied
to a common law or statutory action. The high
court expressly distinguished that scenario from one
which is
[14] . . . based upon grounds established
under common law tort principles – for example, actions for false arrest, false imprisonment, wrongful termination based upon
violation of public policy, or the like. In such
actions, a breach of duty or violation of
public policy may be established by
demonstrating a violation of a constitutional provision, and damages may be
App. 78
properly awarded to remedy the tort. (Id.,
p. 303, fn. 1. [emph. added])
(See also City of Simi Valley v. Superior Court (Bayer)
(2003) 111 Cal.App.4th 1077, 1085, citing the abovereferenced quotation from Katzberg and noting that
no damages were available in the case at bar because
“[p]laintiffs have alleged no facts tying a state
constitutional right to a common law action or a
statutory cause of action.”
In other words, although no damages are available in California for a cause of action which is based
solely and directly on constitutional violation claim,
if that constitutional violation is itself based on a
statutory violation or a common law violation of
public policy, then damages are recoverable.
[15] This is exactly the situation presented here.
In this case, unlike in Katzberg, plaintiff ’s constitutional due process claim is directly tied to statutory
violations; specifically, the complaint alleges and the
plaintiffs argued, that the Department wrongfully
terminated Miracle Star’s license when it failed to
give appropriate notice of purported deficiencies in
Miracle Star’s operation as required by the California
Code of Regulations, it failed to comply with the
California and Federal Administrative Procedures
Act, (Calif. Govt. Code §§11340 et seq., 5 USCS § 701,
et seq.), it failed to comply with the California Administrative Code (Section 10529), it violated California’s Health and Safety Code, it failed to comply with
Government Code sections 11503 and 11504 and it
App. 79
failed to comply with 42 U.S.C. section 1983. (CT 126141.)
It is important to note that appellants’ assertion
on appeal that only one cause of action – due process
– was at issue, is false. The 3d cause of action for
violation of State and Federal Administrative Procedures Acts (which incorporated by reference all prior
allegations) remained at issue. (CT 138-141.) Indeed,
the Department’s own counsel conceded at trial that
there were “two [16] causes of action at issue and one
is for a violation of procedure.” (RT 63.) This is entirely consistent with later discussions in which the court
ruled that it would utilize plaintiffs’ proposed special
verdict form which asked the jury to determine the
“due process concept.” Plaintiffs’ counsel responded,
“That’s correct, Your Honor. I think because the due
process concept is tied with the APA, actually covers
both causes of action.” There was no objection or
disagreement by either the court or the Department’s
counsel as to this observation. (RT 708.) Further,
plaintiff ’s counsel referenced the statutory violations
in both his opening and closing arguments.
There is an Administrative Procedures Act
called the APA which is another cause of action you get to decide here today, whether
there was a violation of that as well as due
process. (RT 19.)
In closing he argued that the Department was required to, but did not, provide written notice of the
specific ground for upon which the license renewal
was denied and that the Department failed to set a
App. 80
hearing within the time required by statute. (RT 914915.)
[17] In short, the Department’s current assertion
on appeal that only one cause of action was at issue is
not only disingenuous, it is dishonest. The plaintiff ’s
claim that they have been denied due process was
directly tied to multiple statutory violations. Therefore, as Katzberg itself makes clear, their claim falls
wholly outside the parameters of the Katzberg line of
case [sic], which apply only to situations in which the
claim is not tied to a common law or statutory right.
Further, in Katzberg, the plaintiff ’s claim involved only a liberty interest. The plaintiff conceded
that because his chairmanship of the department was
an “at-will” position, he had no “property interest” in
maintaining it. Accordingly, Katzberg is distinguishable from cases like Wilkerson v. City of Placentia
(1981) 118 Cal.App.3d 435 and Lubey v. City and
County of San Francisco (1979) 98 Cal.App.3d 340, in
which a property right was also at issue and in which
monetary damages were awarded. (Id., p. 313, fn. 13.)
In this case, unlike in Katzberg, the plaintiffs
suffered the loss of a property as well as a liberty
interest. Accordingly, the Katzberg analysis with
respect to non-statutory, liberty-interest-only claims,
is [18] simply not applicable to this case.
App. 81
B. Both the federal and state courts have long
recognized that money damages may be
available for violation of constitutional
rights, including due process violations5
As will be shown, even assuming, arguendo, that
a Katzberg-type analysis does apply to these facts,
plaintiffs are still entitled to recover damages.
Appellants expend considerable effort analyzing
the “first step” of Katzberg’s two-step approach to
determine whether damages are recoverable in an
action based on an alleged violation of the state
constitution. (AOB 13-16.) That first step, Katzberg
explained, is to determine whether there is an affirmative intent to either authorize or withhold
damages in the constitutional provision at issue. In
rendering its opinion as to whether the enactors of
the due process clause of the California Constitution
(Article I, section 7(a)) intended to include a damage
remedy for its violation, the Katzberg court engaged
in a detailed and painstaking analysis of the language, and [19] legislative history of the provision, as
well as case law from both inside and outside the
jurisdiction. The appellants needn’t have done so.
They could have simply cut-to-the-chase and read the
Katzberg court’s conclusion:
5
It should be noted that while there is significant overlap
between the state and federal treatment of this issue, the
approaches are not identical.
App. 82
We join the jurisdictions that have endorsed,
implicitly or explicitly, the view set out in the
Restatement, that courts, exercising their
authorities over the common law, may, in
appropriate circumstances, recognize a tort
action for damages to remedy a constitutional violation. (Katzberg, supra, 29
Cal.4th at 325 [emph. added].)
With respect to the federal constitution, appellants’ assertion that “the language and history of the
federal due process clause do not contain an affirmative intent to allow damages to remedy a due process
violation” (AOB, p. 16), is simply wrong.6 The United
States Supreme Court has long recognized that damages are, in appropriate circumstances, available to
remedy constitutional [20] violations. Almost 40 years
ago in Bivens v. Six Unknown Fed. Narcotics Agents
(1971) 403 U.S. 388, the United States Supreme Court
recognized the right of a party to recover damages for
the violation of a constitutional right in an action
against federal agents.
As the California Supreme Court explained in
Katzberg, supra, 29 Cal.4th at 307-308),
6
In the three cases cited by appellants in support of this
assertion (United States v. Stanley (1987) 483 U.S 669;
Schweiker v. Chilicky (1988) 487 U.S. 412; and FDIX c. [sic]
Meyer (1994) 510 U.S. 471), damages were disallowed based on
the particular facts before the court, not based on a generalized
finding that damages are never available for Constitutional
violations.
App. 83
The court in Bivens did not approach the issue as posing a question whether the Fourth
Amendment was intended to provide an action for damages, or whether such an intent
could be inferred from that provision; instead, the court viewed the matter as posing
a question whether the court should create a
cause of action for damages – in effect, a
constitutional tort – to remedy a Fourth
Amendment violation, even though Congress
had not specifically provided such a remedy
and even though the Fourth Amendment
does not provide for enforcement by an
award of damages. (Id., at pp. 395-397; see
also id., at pp. 398-411 (conc. opn. by Harlan,
J.).) The high court reasoned that as a general proposition “ ‘federal courts may use
any available remedy to make good the
wrong done.’ ” (Id., at p. 396.)
In Davis v. Passman (1979) 442 U.S. 228, 245,
the Supreme Court held that money damages was an
appropriate remedy for violation of the due process
clause. In so holding, the Court noted:
[21] We approach this inquiry on the basis of
established law. “[It] is . . . well settled that
where legal rights have been invaded, and a
federal statute provides for a general right to
sue for such invasion, federal courts may use
any available remedy to make good the
wrong done.” Bell v. Hood 327 U.S. 678, 684
(1946). Bivens, 403 U.S., at 396, holds that
in appropriate circumstances a federal
district court may provide relief in damages for the violation of constitutional
App. 84
rights if there are “no special factors
counseling hesitation in the absence of
affirmative action by Congress.” See Butz
v. Economou, 438 U.S. 478 at 504 (1978).
[emph. added]
Accordingly, both state and federal courts recognize that, under appropriate circumstances, damages
are recoverable based on a violation of due process.
C. Damages are recoverable here because no
effective alternative remedy exists and
special factors do not militate against the
remedy
The Bivens court held that damages are available
for constitutional violations unless there exist “special factors counseling hesitation” to recognize such a
right or where there is an equally effective alternative remedy. (Bivens, supra, 403 U.S. at 397.) Here,
neither limitation exists.
*
*
*
App. 85
Case No. S192349
IN THE SUPREME COURT OF
THE STATE OF CALIFORNIA
MIRACLE STAR
WOMEN’S RECOVERING
COMMUNITY, INC.,
Plaintiffs/Respondents,
v.
KATHERINE JETT, et al.,
Defendants/Appellants.
)
)
)
)
)
)
)
)
)
Court of Appeal
Case No. B214489
Superior Court
Case No. MC016888
On Appeal from a Decision of the Court of Appeal
Second Appellate District, Division Seven
PETITION FOR REVIEW
(Filed Apr. 19, 2011)
Janice R. Mazur, SBN 144611
William E. Mazur, Jr., SBN 166014
MAZUR & MAZUR
13465 Camino Canada
Suite 106, No. 103
El Cajon, CA 92021
Tel: (800) 383-5002
Fax: (888) 550-1240
Attorneys for Respondent
*
*
*
App. 86
[27] by which to obtain a meaningful and timely
hearing on the State’s decision to not renew Miracle
Star’s license.
C. An action for damages based on a Constitutional violation is permitted where, as here,
the violation is tied to statutory and common law actions
The issue before this court in Katzberg was
whether or not an action for damages is available to
remedy a constitutional violation that is not tied to an
established common law or statutory action. This
court expressly distinguished that scenario from one
which is:
. . . based upon grounds established under
common law tort principles – for example,
actions for false arrest, false imprisonment,
wrongful termination based upon violation of
public policy, or the like. In such actions, a
breach of duty or violation of public policy may be established by demonstrating
a violation of a constitutional provision,
and damages may be properly awarded
to remedy the tort. (Id, p. 303, fn. 1. [emph.
added])
(See also City of Simi Valley v. Superior Court (Bayer)
(2003) 111 Cal.App.4th 1077, 1085, citing the abovereferenced quotation from Katzberg and noting that
no damages were available in the case at bar because
“[p]laintiffs have alleged no facts tying a state
App. 87
constitutional right to a common law action or a
statutory cause of [28] action.”
In other words, Katzberg establishes that although no damages are available in California for a
cause of action which is based solely and directly on
constitutional violation claim, if that constitutional
violation is itself based on a statutory violation or
a common law violation of public policy, then damages are recoverable. This is exactly the situation
presented here.
1. The due process claim is tied to statutory
violations
In this case, unlike in Katzberg, plaintiff ’s constitutional due process claim is directly tied to statutory
violations; specifically, the complaint alleges and the
plaintiffs argued, that the Department wrongfully
terminated Miracle Star’s license when it failed to
give appropriate notice of purported deficiencies in
Miracle Star’s operation as required by the California
Code of Regulations, it failed to comply with the
California and Federal Administrative Procedures
Act, (Calif. Govt. Code §§11340 et seq., 5 USCS § 701,
et seq.), it failed to comply with the California Administrative Code (Section 10529), it violated California’s
Health and Safety Code, it failed to comply with
Government Code sections 11503 and 11504 and it
[29] failed to comply with 42 U.S.C. section 1983.
Thus, Miracle Star tried the case on the premise that
it had not only been denied due process by the state’s
App. 88
failure to provide a hearing, but also based on numerous statutory violations by the Department.7
As noted, Miracle Star alleged that in failing to
renew its license, the Department violated the California and Federal Administrative Procedures Act,
(Calif. Govt. Code §§11340 et seq., 5 USCS § 701, et
seq.). Plaintiff further alleged that in failing to renew
Miracle Star’s license, the Department discriminated
not only against Miracle Star, but also against its
clients and that protected class of disabled people
whom Miracle Star serves in violation of [30] Government Code section 11135, which prohibits discrimination based on mental or physical disability
within the meaning of (and more broadly than) the
Americans with Disabilities Act of 1990 (42 U.S.C.
Sec. 12132). (The “ADA”)8 A violation of the ADA
7
In this regard, it is important to note that the Department’s assertion on appeal that only one cause of action – due
process – was at issue, is false. The third cause of action for
violation of State and Federal Administrative Procedures Acts
(which incorporated by reference all prior allegations) remained
at issue. Indeed, the Department’s own counsel conceded at trial
that there were “two causes of action at issue and one is for
a violation of procedure.” (RT 63.) This is entirely consistent
with later discussions in which the court ruled that it would
utilize plaintiffs’ proposed special verdict form which asked the
jury to determine the “due process concept.” Plaintiffs’ counsel
responded, “That’s correct, Your Honor. I think because the due
process concept is tied with the APA, actually covers both causes
of action.”
8
Government Code section 11135 provides, in pertinent
part: (a) No person in the State of California shall, on the basis
of race, national origin, ethnic group identification, religion, age,
(Continued on following page)
App. 89
constitutes also constitutes [sic] a violation of California’s Unruh Civil Rights Act (Civ. Code §51).9
[31] The Unruh Civil Rights Act “must be construed liberally in order to carry out its purpose” to
“create and preserve a nondiscriminatory environment
in California business establishments by ‘banishing’
sex, sexual orientation, color, or disability, be unlawfully denied
full and equal access to the benefits of, or be unlawfully subjected
to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state
agency, is funded directly by the state, or receives any financial
assistance from the state. . . . (b) With respect to discrimination
on the basis of disability, programs and activities subject to
subdivision (a) shall meet the protections and prohibitions contained in Section 202 of the Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof, except that if the laws
of this state prescribe stronger protections and prohibitions, the
programs and activities subject to subdivision (a) shall be subject to the stronger protections and prohibitions. (c)(1) As used
in this section, “disability” means any mental or physical disability, as defined in Section 12926.
9
Civil Code section 51 provides, in pertinent part:
provides, in pertinent part: [sic] “(a) This section shall
be known, and may be cited, as the Unruh Civil Rights
Act. (b) All persons within the jurisdiction of this state
are free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, disability,
medical condition, marital status, or sexual orientation
are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. . . . (f) A
violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101336) shall also constitute a violation of this section.”
App. 90
or ‘eradicating’ arbitrary, invidious discrimination by
such establishments.” (Angelucci v. Century Supper
Club (2007) 41 Cal.4th 160, 167; Munson v. Del Taco,
Inc., (2009) 46 Cal. 4th 661, 666.)
Disabled persons who have been denied access to
public accommodations (in this case, access to a recovery facility licensed and funded by the government), are entitled to a private right of action against
the government entity, and entitled to recover money
damages pursuant to Civil Code section 52. (Munson
10
v. Del Taco, Inc., supra, 46 Cal. 4th at 673.) Such a
person need not prove that [32] the discrimination
was intentional. (Munson v. Del Taco, Inc., supra, 46
Cal. 4th at 678.)
In this case, Miracle Star alleged that it sought,
in this action, “to vindicate the rights of people who
have been denied treatment in North Los Angeles
County” as well as for agencies whose license to
operate alcohol and drug treatment facilities had
been wrongfully denied and it further alleged that the
Department’s conduct in refusing to renew Miracle
10
Code section 52 provides, in pertinent part: “(a) Whoever
denies, aids or incites a denial, or makes any discrimination or
distinction contrary to Section 51, 51.5, or 51.6, is liable for each
and every offense for the actual damages, and any amount that
may be determined by a jury, or a court sitting without a jury,
up to a maximum of three times the amount of actual damage
but in no case less than four thousand dollars ($4,000), and any
attorney’s fees that may be determined by the court in addition
thereto, suffered by any person denied the rights provided in
Section 51, 51.5, or 51.6.”
App. 91
Star’s license “effectively discriminates against disabled persons”. By refusing to renew Miracle Star’s
license, the Department effectively denied access of
nearly 10,000 bed days per year (Miracle Star’s 27
beds x 365 = 9855) to disabled individuals.11
[33] Accordingly, having obtained a jury verdict
finding that the Department’s failure to renew its
license did constitute a denial of due process, Miracle
Star, acting on its own behalf as well as on behalf of
the protected, disabled persons it was wrongfully
11
Miracle Star has standing to assert the rights of the disabled persons whom they serve (and were precluded from serving due to the Department’s denial of due process). Miracle Star
is a public entity as defined by the ADA and thus “may not, directly or through contractual, licensing, or other arrangements,
on the basis of disability – (i) Deny a qualified individual with a
disability the opportunity to participate in or benefit from the
aid, benefit, or service.” (28 CFR 35.130, subd. (b)(1).) “There is
no question that an association may have standing in its own
right to seek judicial relief from injury to itself and to vindicate
whatever rights and immunities the association itself may enjoy.
Moreover, in attempting to secure relief from injury to itself the
association may assert the rights of its members, at least so long
as the challenged infractions adversely affect its members’ associational ties. (Warth v. Seldin (1975) 422 U.S. 490, 511.) Moreover, “vendors and those in like positions have been uniformly
permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to
their market or function. See, e.g., Eisenstadt v. Baird, 405 U.S.
438 (1972); Craig v. Boren 429 U.S. 190, 195 (1976) (in which the
Supreme Court upheld the ability of a beer seller to challenge a
state statute on behalf of certain underage customers.)
App. 92
precluded from serving, is entitled to recover statutory damages pursuant to Civil Code section 52.12
[34] 2. The due process claim is tied to established common law torts
Moreover, the appellate court applies Katzberg
too broadly. The appellate court concluded that “allowing a constitutional tort action would change
established tort law” because the statutory violations
asserted by plaintiffs do not provide a right of action
for damages (citing Katzberg, supra, 29 Cal.4th at pp.
327-328; Slip Opin., p. 8). The Court of Appeal’s broad
interpretation of Katzberg is inherently inconsistent.
The appellate court seems to say, on the one hand,
that no action for damages arising out of constitutional violation is permitted if there is an alternative
remedy, and on the other, that no such action is
permitted unless there is an alternative remedy (ie,
unless damages are authorized by a statute or tort
action). Obviously both statements cannot be true.
Thus, the proper interpretation of Katzberg is that if
there is an adequate alternative remedy, plaintiffs
should utilize it, but if there is not, damages are
recoverable for a constitutional violation if tort damages are contemplated for similar or analogous wrongs
(even though the conduct does not fall squarely
12
Civil Code section 52 would permit up to three times the
amount of actual damage (which the jury found to be nearly
$400,000), but not less than $4,000.
App. 93
within an established tort.) In other [35] words,
Katzberg requires only that the action for damages
based on a constitutional violation is “tied to an
established common law or statutory action.” (Id., at
303.)
Here, the gravamen of the due process violation,
(wrongful denial of a license and failure to provide a
mandated hearing) is analogous to (and thus “tied
to”) the well-established common law torts of interference with business advantage or wrongful termination, both of which provide for damages.
CONCLUSION
For all the foregoing reasons, this court is respectfully requested to grant review to consider the
important issues raised herein.
Respectfully submitted,
DATED: 4/18/11
MAZUR & MAZUR
By: /s/ Janice Mazur
Janice R. Mazur, Attorney
for respondent Miracle
Star Women’s Recovering
Community, Inc.
App. 94
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION 7
MIRACLE STAR, WOMEN’S
RECOVERING COMMUNITY,
INC., et al.,
Court of Appeal
Case No. B214489
Plaintiffs and Respondents,
v.
KATHERINE JETT, et al.,
Defendants and Appellants.
On Appeal from the Los Angeles Superior Court
The Honorable Robert H, O’Brien, Presiding
Superior Court Case No. MC016888
APPELLANTS’ OPENING BRIEF
EDMUND G. BROWN Jr.
Attorney General of California
DOUGLAS M. PRESS
Senior Assistant Attorney General
JENNIFER M. KIM
Supervising Deputy Attorney General
CHARA L. CRANE
Deputy Attorney General
State Bar No. 250512
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-2458
Fax: (213) 897-2805
E-mail: Chara.Crane@doj.ca.gov
Attorneys for Appellants
App. 95
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[5] treatment for the 10 months before its license
expired and that Miracle Star was responsible for
much of the delay in the administrative proceedings
due to the many continuances it requested, (Appellants’ request for judicial notice, at Exhibit A, p. 2, ¶ 2
and p. 6, ¶ 5) However, as explained later in this
brief, the trial court arbitrarily refused to allow the
jury to review and hear testimony about these administrative findings because the court excluded six of
the seven pages of the administrative decision from
evidence. Simultaneously, and without reason, the
trial court allowed the jury to review and hear testimony about the final page in the administrative
decision which contained the order reinstating Miracle Star’s license.
Respondents filed this lawsuit because they
claimed to have sustained money damages while they
were without a license to operate Miracle Star.
(Clerk’s Transcript (CT), vol. 1, p. 171.) The case was
initially commenced in November 2005 with a complaint alleging 15 causes of action. (Id., vol. 1, p. 15.)
However, by the time the case was submitted to the
jury in December 2008 after a four-day trial, only one
cause of action remained: the claim for violation of
procedural due process. (Id., vol. 2, pp. 389-391; RT,
vol. 4, p. 940, lines 1-10.)
During trial, the trial court abused its discretion
by admitting just one page of the seven-page administrative decision into evidence, despite the relevance of
App. 96
the entire administrative decision. Also during trial,
the court committed reversible legal error when it
used a special verdict form that [6] required the jury
to make a finding of law and when it denied appellant’s motions for directed verdict, to dismiss the
case, and for judgment on the pleadings based on case
law that barred Miracle Star from recovering money
damages under its federal due process cause of action.
Due to the trial court’s prejudicial abuse of
discretion and reversible legal errors, the jury returned a verdict in favor of Miracle Star, finding that
appellants failed to provide due process to Miracle
Star and, in so doing, caused Miracle Star to suffer
$302,000 in past economic damages and $90,600 in
future economic damages. (CT, vol. 2, p. 389.). The
trial court affirmed this jury verdict (id. at p. 391),
even though (1) the special verdict form improperly
required the jury to make a finding of law; (2) the
jury verdict violated federal and state decisional law;
and (3) the jury verdict was the product of the jury
not being permitted to review the entire administrative decision, which proved that Miracle Star sustained no money damage during the time that it was
unlicensed.
STANDARDS OF REVIEW
The trial court’s legally erroneous decision to
submit a special verdict form to the jury that required
it to make a finding of law is reviewable under the de
App. 97
novo standard of review. (In re Retirement Cases
(2003) 110 Cal.App.4th 426, 469.) Likewise, the trial
court orders denying appellants’ dispositive motions
to dismiss the case under state and federal case law
are reviewable under the de novo standard of review
because these * * * [9] governing special verdict
forms. Code of Civil Procedure section 624 provides
that a special verdict is one in which the jury finds
the facts only, leaving the judgment to the court.
(Code Civ. Proc., § 624.) The statute further requires
that the special verdict form “present the conclusions
of fact as established by the evidence, and not the
evidence to prove them; and those conclusions of fact
must be so presented as that nothing shall remain to
the Court but to draw from them conclusions of law.”
(Ibid.) In this case, the trial court used a special
verdict form that required the jury to make a conclusion of law, as opposed to a conclusion of fact, in order
to respond to the first question on the special verdict
form. (CT, vol. 2, pp. 389-390.) Thus, the special
verdict form failed to comply with Code of Civil
Procedure section 624.
In sum, the trial court committed reversible legal
error when it gave the jury a special verdict form that
required the jury to make a finding of law.
App. 98
II.
THE TRIAL COURT ERRED WHEN IT
DENIED APPELLANTS’ MOTIONS FOR
DIRECTED VERDICT, TO DISMISS THE
CASE, AND FOR JUDGMENT ON THE
PLEADINGS BECAUSE THE LAW DOES
NOT PERMIT MONEY DAMAGES FOR ALLEGED DUE PROCESS VIOLATIONS
WHEN THERE ARE ALTERNATIVE LEGAL
REMEDIES.
Miracle Star’s cause of action against appellants
for violation of the due process clauses in the Fifth
and Fourteenth Amendments to the United States
Constitution was the sole cause of action submitted to
the jury. (RT, [10] vol. 4, p. 940, lines 1-10; see also
CT, vol. 1, p. 118 (the first page of the operative
complaint that shows the precise name of the cause of
action that was at issue).) When instructing the jury,
the trial court succinctly described the single. cause of
action as, Miracle Star “seeking damages, based upon
a claim of violation of due process.” (RT, vol. 4, p. 940,
lines 8-10.) Later on during jury instructions, the
trial court more narrowly described the remaining
cause of action as one for “procedural due process.”
(Id., vol. 4, p. 944, lines 26-27.)
However, the trial court never should have
submitted this cause of action to the jury, because
case law barred Miracle Star from recovering money
damages under this cause of action. In fact, during
trial, the court urged the parties to consider whether
case law barred Miracle Star from recovering money
damages on its federal due process cause of action.
App. 99
(RT, vol. 2, p. 65, lines 11-23; Id., vol. 2, p. 66, lines 614.) The trial court suggested the parties read Bonner
v. City of Santa Ana (1996) 45 Cal.App.4th 1465
(Bonner), which held that a plaintiff had no right to
money damages under the state equal protection
clause or the state due process clause when that
plaintiff had an effective alternative judicial remedy
in the form of a conversion cause of action. (Id., vol. 2,
p. 66, lines 6-8.) Bonner was clarified, and expanded
upon, by the California Supreme Court in Katzberg v.
Regents of the University of California (2002) 29
Cal.4th 300 (Katzberg).
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[13] (Katzberg, supra, 29 Cal.4th at p. 317; see
also Giraldo v. California Department of Corrections
and Rehabilitation (2008) 168 Cal.App.4th 231, 253254.)
“The trial court erred as a matter of law when it
failed to employ this framework to resolve appellants’
motions for directed verdict, to dismiss the case, and
for judgment on the pleadings based on Bonner and
Katzberg. Therefore, this Court may apply this twostep framework, de novo, to determine if Miracle Star
is entitled to damages under its procedural due
process cause of action against appellants.
App. 100
B. THERE IS NO INDICATION IN THE FEDERAL
DUE PROCESS CLAUSE THAT CONGRESS INTENDED TO ALLOW, OR TO NOT ALLOW, A
PARTY TO SUE FOR MONEY DAMAGES FOR A
VIOLATION OF THE PROVISION.
First, there is no language in the due process
clauses of the Fourteenth and Fifth Amendments to
the United States Constitution (collectively, the
federal due process clause) that indicate that Congress intended to allow a damages remedy for a
violation of the due process clause. Section 1 in the
Fourteenth Amendment to the United States Constitution provides:
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
[14] No language in the above amendment demonstrates intent to allow a money remedy for a due
process violation.
The Fifth Amendment to the United States
Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
App. 101
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without
due process of law; nor shall private property
be taken for public use, without just compensation.
Again, no language in the above amendment
demonstrates intent to allow a money remedy for a
due process violation. Moreover, that the above
amendment (1) expressly requires money remedy to
be given if private property is taken and (2) does not
require a money remedy to be given if due process is
not provided, bolsters the conclusion that Congress
did not intend to allow a money remedy for a violation of the amendment’s due process clause. (See
South Yuba River Citizens League v. National Marine
(E.D.Cal. 2009) 629 F.Supp.2d 1123, 1129 [explaining
that when Congress includes certain language in one
section of a statute but omits it in another section of
the same Act, the general presumption is that Congress acted intentionally in the disparate inclusion.
and exclusion].) In sum, the language of the federal
due process clause, reveals no congressional intent to
authorize money damages for a due process violation.
[15] Granted, Katzberg recognized that the words
of most constitutional provisions do not, on their own,
App. 102
manifest the intent to authorize or withhold a damage’s action to remedy a violation of the provision.
(Katzberg, supra, 29 Cal.4th 300, 318.) Hence,
Katzberg considered the history of the constitutional
provision at issue in that case to determine if the
provision contained an implied intent to authorize or
withhold a damages action to remedy the violation of
the provision. (Ibid.)
Here, based on analysis which has, essentially,
been done already by the high court, the history of
the federal due process clause does not indicate an
implied right to seek damages for failure to provide
due process. Specifically, the United States Supreme
Court has repeatedly refused to recognize a federal
constitutional tort action for money damages for
violation of the federal due process clause. (See
United States v. Stanley (1987) 483 U.S. 669 [no
money damages available for alleged due process
violations by military personnel during the course of
active military service]; Schweiker v. Chilicky (1988)
487 U.S. 412 [no money damages available for alleged
due process violation by government officials, resulting in deprivation of Social Security benefits]; FDIC
v. Meyer (1994) 510 U.S. 471 [no money damages
available for alleged due process violation concerning
employment termination by federal agency].) If the
federal due process clause contained an implied light
to seek damages, then the high court would have said
so in these three published opinions. That it [16]
declined to do so demonstrates that the language and
history of the federal due process clause do not contain
App. 103
an affirmative intent to allow damages to remedy a
due process violation.
This Court should reverse the trial court because
it erred as a matter of law in failing to undertake this
first step in the Katzberg analysis.
C. THE CONSTITUTIONAL TORT ANALYSTS MILITATES STRONGLY AGAINST ALLOWING MIRACLE STAR TO RECOVER MONEY DAMAGES
FROM APPELLANTS BECAUSE MIRACLE STAR
COULD HAVE SUED APPELLANTS EARLY ON
AND SOUGHT MEANINGFUL REMEDIES OTHER
THAN MONEY DAMAGES.
Because the federal due process clause does not
indicate an affirmative intent to authorize or withhold a damages remedy for a due process violation,
this Court should undertake the constitutional tort
analysis, which the trial court failed to do. In undertaking the constitutional tort analysis, Katzberg and
Giraldo instruct that the primary factor to consider is
whether an adequate alternative remedy exists.
(Katzberg, supra, 29 Cal.4th 300, 317; Giraldo v.
California Department of Corrections and Rehabilitation, supra, 168 Cal.App.4th 231, 255-256.)
Katzberg found that the plaintiff professor had
an adequate existing remedy because, rather than
suing defendants in an action for damages, he could
have sought to remedy the alleged violation of his due
process liberty interest and corresponding right to a
App. 104
timely name-clearing hearing by seeking a writ of
mandate under Code of Civil Procedure section 1085,
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