Two Plaintiffs, Pointing to Amendments Approved by Voters in 1974, Ask the State Supreme Court to Award Them Monetary Damages

The headlines were scandalous: “UC: Employee Suspected of Misusing Funds.”

And: “UC Davis Medical School Disciplines Employees — Vendor Cash Paid for Parties, Sports.”

The consequences for Richard Katzberg, an acclaimed radiologist at the University of California at Davis, were dire — his fast-track career suddenly derailed.

Despite the publicity surrounding the 1996 termination of the Harvard-trained professor as radiology department chairman, university officials did not offer Katzberg a hearing to dispute charges of misconduct.

An offer for a name-clearing hearing came 3½ years later, only after Katzberg had sued in federal and state court, claiming his reputation had suffered severely from allegations that were never proven.

Now, Katzberg’s case is before the California Supreme Court, which must decide whether someone who has been wronged by government officials has the right to collect monetary damages for a violation of the state constitution.

In another, similar case before the high court, a Southern California woman is trying to win damages for a free-speech violation. Plaintiff Christine Degrassi alleges that her former colleagues on the Glendora City Council conspired among themselves and with city attorneys to exclude her from council meetings, deny her access to information and generally obstruct her participation in council business.

The two cases, Katzberg v. Regents of the University of California, S097445, and Degrassi v. Cook, S094248, are scheduled for back-to-back hour-long hearings before the court today in San Francisco.

The question of damages for constitutional violations is not new, but the relatively small number of published decisions at the state and federal level within the last 30 years have cut both ways.

Complicating the task for the Supreme Court is that both Katzberg and Degrassi are factually messy, and it’s not at all clear that either plaintiff would be entitled to damages even is such a remedy were found to exist.

Given the current Supreme Court’s general reluctance to approve new types of damage claims that are not solidly grounded in case law or legislative history, one scholar who tracks the court said a victory for the plaintiffs is a long shot.

“All in all, I think the portents are not for anything sensational to come out of these cases,” said constitutional law professor Stephen Barnett of Boalt Hall.

But the lawyers representing Katzberg and Degrassi are confident they can make the case that constitutional violations deserve compensation every bit as much as statutory claims.

“I think when people voted for the constitution they assumed these rights are going to be enforceable,” said Daniel Siegel of Oakland, representing Katzberg, who remains a tenured professor at UC Davis. “We don’t think we’re writing the constitution just because the words sound nice. We’re putting these rights there because we want them protected.”

Lawyers for the defendants say that reading of voter intent is a stretch and is not supported by the materials presented to California voters whey they amended the state constitution in 1974 to include the clauses cited by Katzberg and Degrassi.

“If the legislative history suggested there should be a right to damages, I could see why damages might make sense,” said Paul Fogel, of Crosby, Heafey, Roach & May in San Francisco, who represents the university regents. “I think the Supreme Court should look very carefully to see what voters were told when they enacted the [constitutional amendment].”

The amendment at issue in Katzberg is Article 1, Section 7, a close cousin to the Due Process Clause of the US. Constitution’s 14th Amendment.

Traditionally, voter intent is the first factor courts consider in constitutional tort analysis. In rejecting Katzberg’s claim last year, the Sacramento-based 3d District Court of Appeal noted that nothing in the due process provision approved by voters in 1974 expressly allows for a damages action.

More specifically, the three-judge panel found, Article 1, Section 7 is not “self-executing” in the sense that it provides guidelines for a damages remedy. The court concluded the only remedy available is the right to a name-clearing hearing, which the university eventually offered and Katzberg rejected because he didn’t like the university’s ground rules.

The case law is mixed. The U.S. Supreme Court first recognized the right to money damages for a constitutional violation in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which held that a family should be compensated under the Fourth Amendment after armed federal agents raided their home.

But more recently, the federal high court has shown itself reluctant to recognize a damages remedy. State courts have followed the federal lead with a similar retrenchment from pro-plaintiff decisions in the 1970s and 80s.

The case that clinched the 3rd DCA’s ruling against Katzberg is Carlsbad Aquafarm Inc. v. Department of Health Services, 83 Cal.App.4th 809 (2000), a decision by the 4th DCA striking down a $290,000 jury award to a commercial shellfish business that was removed from a government list of approved operators without a hearing.

Siegel maintains that a more relevant reference point is a 1972 U.S. Supreme Court decision that held that a hearing is mandatory for an employee terminated from a university position because “liberty interests” are at stake.

In that ruling, Board of Regents v. Roth, 408 U.S. 564, the court did not reach the question of damages because it found that the plaintiff’s reputation had not been impugned.

But Siegel contends there is plenty of evidence to support the claim that Katzberg have been “constitutionally stigmatized” by the university’s actions.

“I think the case has a damage value in the seven figures,” he said, while speculating that Katzberg might have become a medical school deam or perhaps even a university president. “In a trial, I would bring in university administrators who would testify as to his reputation and the income he could have earned.”

In Fogel’s opinion, there’s a major flaw in Katzberg’s assertion that damages based on the state constitution are the only remedy available to him. The constitutional claims are a fallback position after Katzberg’s attorneys failed to pursue a state defamation claim and a claim under Section 1983 of federal civil rights law that were included in Katzberg’s original complaints, he said.

“He never asked for a name-clearing hearing in the first place. Then he sues and says he didn’t get a hearing and the damage to his reputation has festered,” said Fogel. “We offered him a name-clearing hearing and he thumbed his nose at us. Our offer and his rejection of it effectively mooted his due process claim.”