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Individuals seeking monetary damages under the California Constitution for violations of their free speech rights and due process liberty interests are out of luck. On Wednesday, the California Supreme Court ruled unanimously that very little in case law, legislative intent or the will of the people supports an action for damages. “Putting aside cases recognizing an inverse condemnation action for damages to remedy a violation of the state just-compensation clause, only two decisions, each filed two decades ago, have recognized an action for damages to remedy a violation of the state Constitution,” Chief Justice Ronald George wrote in one of two companion cases. “All subsequent decisions addressing the issue have declined to find such an action for damages.” In Katzberg v. The Regents of the University of California, 02 C.D.O.S. 11504, Richard Katzberg sought damages after being removed from his position as chairman of the Department of Radiology at the UC-Davis Medical Center following a scandal involving alleged mishandling of funds. The university violated his liberty interests, Katzberg said, by failing to provide him with a name-clearing hearing. George noted that the U.S. Supreme Court has not allowed monetary damages for alleged violations of the federal Constitution as long as there was a meaningful alternative remedy for the person who believes he or she was wronged. Katzberg could have sought a writ of mandate compelling a hearing, George wrote, or filed a defamation action. “Even if the due process right embodied in [the state Constitution] is enforceable only through an action for injunctive or declaratory relief, and not by an action for damages,” he wrote, “this constitutional provision is hardly rendered innocuous or empty.” In Degrassi v. Cook, 02 C.D.O.S. 11513, former Glendora Councilwoman Christine Degrassi had sued several individuals and entities, including three other members of the council and the city’s outside attorneys, for allegedly violating her free speech rights. She claimed that she been threatened by city staff and excluded from council meetings after raising several complaints about city employees and council decisions. Using the rationale from Katzberg, the court rejected Degrassi’s bid to seek monetary damages and also said she had other alternatives, including seeking injunctions or filing a complaint under the Brown Act, the state’s open meetings law. The justices also said allowing damages for actions arising out of a city council setting “might chill the political process.” “We are extremely reluctant,” the court held, “to endorse a cause of action that would subject to post-hoc judicial scrutiny and assessment of damages, the kind of political differences, squabbles and perceived slights that are inherent in a representative government body such as a city council.” George noted that both the liberty interest at issue in Katzberg and the free speech clause raised in Degrassi had been added to the state Constitution through Proposition 7, which was on the November 1974 ballot. Nothing in the initiative’s wording, he said, contemplated monetary damages for violations. Justice Janice Rogers Brown, joined by Justice Marvin Baxter, filed a concurring and dissenting opinion in which they agreed with the majority’s outcome, but not with the decision to apply the U.S. Supreme Court’s constitutional tort analysis, adopted in 1971, to provisions of the California Constitution. “Defaulting to the high court fundamentally disserves the independent force and effect of our Constitution,” Brown wrote. “Rather than enrich the texture of our law, this reliance on federal precedent short-changes future generations.” Robert Kern, who represented Degrassi, and Daniel Siegel, lawyer for Katzberg, expressed regrets at the court’s decisions. “The old maxim ‘for every right there should be a remedy’ is what the ordinary citizen would have expected,” Kern, a solo practitioner in Pomona, said. “So it’s a bad day for what we would have hoped would have been an improvement in the governmental process.” Siegel, a partner in Oakland’s Siegel & Yee, said he was unhappy “not only for Dr. Katzberg, but for all state employees, who are the only public employees who don’t have a remedy for a violation of their constitutional rights.” The ruling, he said, states that “the state government or any agency of the state can violate” their employees’ rights without facing recourse. Richard Terzian, a partner in Los Angeles’ Bannan, Green, Frank & Terzian who represented most of the municipal defendants in Degrassi, and Daniel Barer, a partner in L.A.’s Pollak, Vida & Fisher who represented Glendora’s attorneys, expressed satisfaction at the court’s holdings. “The court should only venture into the city council with extreme reluctance,” Barer said. “These are the kind of squabbles that should be handled through the political process and not a lawsuit.” Terzian said the rulings allow government officials to “speak out freely without having to watch their words and without having to be concerned that someone else on the body they are serving on or some political enemy is going to come along and sue them for what they said.” “It’s in the best interests of everyone,” he added, “that the rights of all of the people on the city council have been upheld to speak as they choose.” The university regents’ lawyer, Paul Fogel, a partner in the San Francisco office of Oakland’s Crosby, Heafey, Roach & May, could not be reached for comment Wednesday.

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