Government Liability Update

Principal's Warning to Teacher Wearing MAGA Hat to Training Raises Triable Issue of Fact of First Amendment Retaliation

In Dodge v. Evergreen School Dist. #114, published December 29, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment for the defendants.  The plaintiff teacher wore a red Make America Great Again hat to mandatory teacher training, taking the hat off when he entered the school where the training was held.  The professor leading the training reported to the school's principal that she felt intimidated and traumatized by the hat.  The principal also learned that the hat upset a few teachers at the training.  She spoke with the school's HR officer to discuss what could be done.  They agreed the best option was to talk to the teacher directly.  She told the plaintiff that some people take the hat as a symbol of hatred and bigotry, and that while should could not ask him to stop wearing it, he should use "better judgment" in the future.  The next day, the plaintiff attended another teacher training at a school in the district.  He again wore the MAGA hat until he entered the building.  The principal again contacted the HR director.  They agreed the principal needed to set a "clear directive" that the plaintiff not have the hat in the training.  Later that day, the teacher went to a training at his school, and left his hat in his truck.  The principal again spoke with the plaintiff.  According to the plaintiff, the principal swore during the conversation, called the plaintiff a homophobe, a bigot, and hateful; used profanity; told him that she did not want him wearing the hat; and said, "[N]ext time I see you with that hat, you need to have your union rep.  Bring your rep because I'll have mine."  The principal denied using profanity in the conversation.  The plaintiff made an HR complaint about the principal.  After investigation, the district found that the principal did not violate district policy.  The HR officer informed the plaintiff that no further action would be taken on the complaint; but she granted the plaintiff's request for a transfer to another school.  The plaintiff appealed to the school board.  During a second investigation, the board gave the principal a choice of resigning as principal, accepting demotion, or facing disciplinary proceedings.  She resigned.  The plaintiff sued the district, the principal, and the HR officer for retaliation in violation of his First Amendment free speech rights.  The district court granted summary judgment on the grounds that the principal's and HR officer's actions were protected by qualified immunity, and that the plaintiff had failed to establish that the district had ratified any unconstitutional actions.

The 9th Circuit reversed summary judgment as to the principal.  The plaintiff stated a prima facie claim for first amendment retaliation:  wearing the hat (with the political message it conveyed) was protected speech on a matter of public concern; he acted as a private citizen (rather than as part of his job duties) in wearing the hat to a teacher training; and while the principal "badmouthing" the plaintiff was not an adverse employment action, her threat that he needed to have his union rep if he wore the hat again raised a genuine issue of material fact over whether he faced an adverse employment action--a threat to his employment--for his expression.  The court affirmed summary judgment for the HR officer, because it found no evidence the officer caused or set in motion a series of acts by others that she reasonably should know would cause constitutional injury.  Nor were any of her actions reasonably likely to deter him from engaging in protected speech.  The court then applied Pickering balancing to determine whether the principal established a legitimate administrative interest in preventing the plaintiff's speech that outweighed the plaintiff's First Amendment rights.  While some of the training attendees may have been outraged or offended by the plaintiff's political expression, there was no evidence of actual or tangible disruption to school operations, beyond the inherent controversy of political speech.  The appellate court next applied the second prong of qualified immunity analysis to the principal's acts:  whether she violated clearly-established law.  The court noted that because the Pickering analysis requires a fact-sensitive, context-specific balancing of competing interests, the law will rarely be sufficiently clearly established to preclude qualified immunity.  But Supreme Court and 9th Circuit case law clearly establish that disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail  expression of that viewpoint at a public school, particularly where the only disruption was the effect the speech had on those who disagree with it because they disagree with it.  This is therefore one of the rare Pickering cases where the violation of the First Amendment was clearly established.    Finally, the court agreed with the district court that there was no evidence the district ratified the principal's conduct.

Implied Waiver of Government Claims Act Does Not Require Detrimental Reliance; Attorney for Public Entity May Waive Claim Requirement on Behalf of Entity; Deeming Public Contract Void Ab Initio Does Not Invalidate Contract's Alternative Claim Procedure

In California-American Water Co. v. Marina Coast Water District, published December 28, 2022, the First District Court of Appeal, Division 2 reversed summary judgment arising out of a contract dispute.  A water utility and a water district, among others, agreed on a plan to develop and construct a regional desalination project.  The parties entered into a Water Purchase Agreement, which provided for financing and constructing the facilities.  The district hired a person who worked on the draft WPA, but who was also a paid consultant for a participant in the agreement to advocate for the agreement.  The conflict in interest was discovered.  An attorney opined that the WPA was void as a result of the consultant’s financial interest in the project.  The parties engaged in months of negotiation and mediation to attempt to resolve the future of the project.  An outside counsel for the district e-mailed the parties, announcing that the parties should be free to pursue their legal remedies, and that the district had no objection to the parties being able to raise in court all issues and legal claims reasonably related to the issues and claims referred to in the parties’ pre-mediation correspondence.  The district nevertheless insisted the parties were obligated to comply with the dispute resolution procedure in the WPA.  It then refused to agree that the parties’ efforts complied with those procedures.  In light of that uncertainty, the utility submitted a Government Claims Act claim to the district.  The utility then filed a lawsuit.  In the lawsuit, the district argued that causes of action in the lawsuit for negligence under Government Code sections 815.2 and 815.4 were barred because the claim was deficient.  The utility filed amended complaints pleading that the WPA and the parties’ mediation agreement set forth alternatives to the Government Claims Act; and that the district had waived its rights under the Act.  The trial court granted the utility summary adjudication against Cal-Am on the grounds that the claim presented was insufficient to reflect the tort causes of action; that the district could not have waived its rights under the Act by entering into the WPA because it was void from inception; and that the utility had failed to raise a triable issue of fact on implied or express waiver of the Act.

The appellate court disagreed with the trial court.  The trial court erred in ruling that the district could not have impliedly waived the Act, because the utility did not show detrimental reliance since it presented a claim.  Detrimental reliance is an element of estoppel, but it is not an element of waiver.  The utility also alleged express waiver, based on the district’s attorney’s statements.  The trial court ruled that because only the board of the district had the power to waive the district’s right to notice under the Act, the attorney could not do so.  But that rule applies only to allegations of waiver by public officials.  An attorney for a party has implied authority to enter into procedural waivers.  The utility’s evidence created a triable issue of fact on whether the attorney had the authority to waive the utility’s right to statutory notice.  In addition, under Government Code sectiond 930.2 and 930.4, a local public entity may include in its contracts a procedural alternative to the statutory claim process; and if it does, that alternative procedure exclusively governs.  The WPA contained a detailed pre-litigation procedure.  The appellate court rejected the utility’s argument that the WPA was void ab initio, and thus the statutory claims process does not apply.  Exempting contracts later declared void ab initio from section 930.4’s exclusive governance clause negates the purpose of the statute.  It would also create confusion as to which claims procedure governed.  The mediation agreement also contained a dispute resolution procedure, which the utility contended it also complied with.  The trial court erred in concluding the tort claims the utility asserted fell outside the scope of the mediation agreement.

School District Did Not Violate Students' Free Speech Rights under First Amendment or California Law by Disciplining Them for Off-Campus Social Media Posts Targeting Fellow Students

In Chen v. Albany Unified School District, published December 27, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant school district and associated defendants.  A high school student created a private Instagram account to share memes, images, and comments with his close friends.  He allowed 13 people to follow his account.  He used the account to make cruelly insulting posts about various students in his school, including racist posts, including posts joking about lynching and slavery.  Another student made racist comments in the group, and “liked” offensive posts.  When one of the account’s followers showed posts in the group to students who had been depicted in a post with nooses, knowledge of the group’s contents spread throughout the school, causing great emotional upset and disruption.  Two of the account’s followers were physically assaulted.  The district voted to expel the group creator and the follower who posted racist comments.  Those students filed suits against the school district defendants under 42 U.S.C. section 1983, alleging violation of free speech rights under the First Amendment and California law, as well as violation of procedural due process.  The district court related those cases.  It granted summary judgment for the defendants, reasoning that the district defendants could properly regulate the students’ off-campus speech.

The court of appeals agreed.  The First Amendment’s protection of public school children’s speech is more limited than that of adult speech.  The speech of students in a school setting may be restricted if either it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities; or it collides with the rights of other students to be secure and to be let alone.  Even outside the school setting, the First Amendment rights of minors are not co-extensive with adults’.  That is especially true in connection with school activities.  Students do not have a First Amendment right to target specific classmates with vulgar or abusive language.  Without limiting any political viewpoint or other protected content, schools may insist on civil discourse in the school context.  Here, the First Amendment would not prevent a school from punishing the sort of speech at issue if it had occurred under the school’s supervision.  The content threatens the targeted students’ sense of physical, emotional, and psychological security.  The threat of disruption of school activities is equally obvious (and demonstrated here).  The central question is whether the off-campus nature of the speech places it outside of the school’s authority to regulate or discipline.  Although schools may regulate some off-campus student speech, their authority is diminished as opposed to on-campus speech.  The 9th Circuit has devised a three-factor test for determining whether off-campus speech bears a sufficient nexus to the school to allow school district regulation:  (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school.  Under these standards, the group’s creator’s speech bore a sufficient nexus to the school to warrant disciplinary action by the school.  The student’s subjective intention to keep the account private is not controlling; the court must consider whether it was reasonably foreseeable that the speech would reach and impact the school.  Given the ease with which electronic communications may be copied or shown to others, it was foreseeable that the posts would ultimately reach the targeted students.  Once the privacy of the account was breached, the degree and likelihood of harm to the school from the speech was significant.  Because the speech caused serious or severe bullying or harassment targeting specific individuals, the school’s regulatory interests remained significant, and strongly implicated the school’s authority and responsibility to act in loco parentis in protecting students from maltreatment by classmates.  A failure to respond to the harassment might have exposed it to potential liability for failure to respond adequately to a racially hostile environment.  Because the student never contended that he was espousing a particular political ideology,  his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow.  Although the other student’s involvement in the account was substantially more limited, his contribution properly subjected him to school discipline as well.  The court rejected the students’ arguments that the school violated their rights under the California Constitution and Education Code sections 48950 and 48907.  California’s free speech rights for students under those provisions do no extend further than their First Amendment rights.  The creator student’s claim of violation of procedural due process fails, because the student pursued an administrative writ under California law on that point and lost.  Claim preclusive bars him from relitigating that issue in the federal lawsuit.  His argument that a member of the administrative body was biased against him is governed by the same procedural due process standards under federal law as under state law.

Social Workers Were Not Entitled to Qualified Immunity for Acting with Malice, Oppression, or in Reckless Disregard of Parent's Rights

In Casey N. v. County of Orange, published December 23, 2022, the Fourth District Court of Appeal, Division 3, affirmed a jury verdict against the defendant county and two social workers in a 42 U.S.C. section 1983 suit brought by a parent.  Social workers investigated allegations that the plaintiff's minor daughter was sexually abused by her father, who was divorced from the mother.  One social worker stated in her report her opinion that the mother was emotionally abusing the daughter, and was feeding information or coaching information to the child as part of a family law dispute.  The second social worker, who replaced the first, filed a report stating she was unsure whether sexual abuse had taken place, but also recommended the petition allege emotional abuse by the mother.  The deputy county counsel dismissed the sexual abuse allegations before the dependency court, and replaced them with allegations of emotional damage or endangerment based on allegations the mother had influenced the child to make false sexual abuse claims.  The dependency court found the mother had knowingly caused the minor to make false allegations against the father.  The court granted the agency's request that the minor be removed from the mother and given to the father.  The mother signed a stipulation giving sole legal and physical custody of the minor to the father with visitation by the mother.  She later asserted she had been bullied into signing the stipulation under threat of having her parental rights terminated.  The mother sued the social workers and the county for violating her right to familial association by deceiving the juvenile court into removing the minor from her custody.  The jury found the social workers liable, found the county liable under a Monell theory, and awarded punitive damages against the social workers.

The appellate court ruled that the issue of the materiality of the social workers' statements--whether, but for the dishonest or misleading statements, the challenged action would not have occurred.  In a section 1983 case based on judicial deception, the court decides materiality in a summary judgment proceeding, but the jury determines it at trial.  The court further ruled that substantial evidence supported the verdict against the social workers.  There was medical and other evidence of sexual abuse that the mother's dependency court counsel did not present, because the sexual assault accusation was dismissed and the evidence would have been irrelevant.  The mother also testified she was prevented from offering the evidence at the disposition hearing because she was coerced into signing the stipulation.  The court ruled that the social workers were not entitled to qualified immunity.  The jury's finding that the social workers had acted with malice, oppression, or in reckless disregard of the mother's rights established that their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.  Further, federal case law holds that the doctrine of qualified immunity merges with the merits in a case alleging judicial deception in the procurement of a search warrant.  The court declined to rule whether this holding applied here.  Substantial evidence also supported the Monell liability finding against the county, based on an official policy or custom of using false or misleading evidence, or in failing to disclose exculpatory evidence, in reports, documents, and testimony to the juvenile court, as well as a failure to properly train social workers.

Because Convention Center Is an Extension of City, It Is Exempt from Labor Code Claim

In Allen v. San Diego Convention Center Corporation, published December 16, 2022, the Fourth District Court of Appeal, Division 1 affirmed a trial court order denying class certification.  The plaintiff was a former employee of the defendant San Diego Convention Center Corporation.  She alleged eight Labor Code violation claims against SDCCC.  SDCCC demurred on the ground that it was exempt from liability for the alleged Labor Code violations because it is a public entity and a wholly-owned subsidiary and instrumentality of the City of San Diego.  The trial court agreed that SDCCC was a public entity for purposes of seven of the Labor Code claims.  The trial court then denied the plaintiff's motion for class certification, on the ground that the proposed class claims related to claims dismissed on demurrer.  The plaintiff appealed the denial of certification as a "death knell" order.

The appellate court agreed that SDCCC was a public entity for purposes of the Labor Code.  Governmental actors are protected from liability under the Labor Code, unless a statute specifically brings a public employee within its ambit.  The Labor Code provisions at issue in this case do not apply to public employers.  The undisputed facts establish that SDCCC is an extension of the City of San Diego, and thus is a public entity for purposes of the Labor Code violation.  The city's municipal code defines the city as including SDCCC.  The city appoints all of SDCCC's board members.  Upon dissolution, SDCCC's assets revert to the city.  SDCCC must publicly account for it s operations.  SDCCC was formed under the authority of state law, which grants cities the authority to construct convention halls.  SDCCC is therefore not an independent corporation; it is an agent and instrumentality of the city.

The Private Search Exception to the 4th Amendment Applies to Location Information

In Kleiser v. Chavez, published December 9, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant state department of labor and industries.  Two disgruntled employees of an electrician company provided the department with data from the employer, particularly printouts of cell site location information, that provided GPS coordinates for company vehicles and movements of electricians in the field.  The department used the data to assess fines against the company for improper supervision of journeymen electricians.  The company sued the department under 42 U.S.C. section 1983, alleging the department violated the 4th Amendment by obtaining the data without a warrant.  The company contended Carpenter v. United States (2018)
138 S. Ct. 2206 , and Wilson v. United States (9th Cir. 2021) 13 F.4th 961, extinguished the applicability of the private search exception (under which the 4th Amendment does not protect against government use of materials that third parties seized without a warrant and provided to the government) to location information.

The 9th Circuit rejected the company's argument.  Carpenter held the third-party doctrine (under which a person who voluntarily turns over information to third parties cannot assert the 4th Amendment protects that information) does not apply as an exception to the 4th Amendment's warrant requirement when the government seeks cell site location information.  The private search exception is a separate exception to the 4th Amendment.  The 9th Circuit joined other circuits in ruling that Carpenter does not apply in private search exception cases.

Student Adequately Pleaded First Amendment Claims by Alleging School District Barred Her from Wearing Religious Decorations on Graduation Cap but Allowing Others to Wear Secular Decorations on Caps

In Waln v. Dysart School District, published December 9, 2022, a divided panel of the 9th Circuit Court of Appeals reversed an order dismissing at the pleading stage a 42 U.S.C. section 1983 lawsuit against a school district.  The district's dress-code policy for graduation declared that students may not decorate their gown or cap.  The plaintiff student, a Native American, had an eagle plume blessed in a religious ceremony.  Her religious beliefs included the custom of wearing eagle feathers in times of great honor. They cannot be covered by or worn underneath a cap.  The plaintiff's father and religious leader asked school administrators and the district superintendent for a religious accommodation for plaintiff.  They declined.  The plaintiff went to her graduation wearing her decorated cap.  School officials did not let her inside the venue.  But the same day, at the same venue, other high school students from the district were allegedly allowed to participate in the graduation ceremony wearing caps with secular decorations (such as a breast cancer awareness sticker) on their caps.  The plaintiff sued for violation of the First Amendment's Free Exercise Clause and Free Speech Clause.  The district court granted a FRCP 12(b)(6) motion dismissing the complaint.

The panel majority ruled that the district court had erred in dismissing the complaint.  To state a Free Exercise claim, a plaintiff must show that a government entity has burdened her sincere religious practice pursuant to a policy that is not neutral or generally applicable.  General applicability requires that the law be enforced evenhandedly.  The complaint alleges that the district's policy was not enforced evenhandedly, because other students were permitted to adorn their graduation caps with secular decorations, while the plaintiff was not permitted to adorn hers with a religious decoration.  It permitted secular conduct that contravened the legitimate government interests underlying the policy to the same degree that Plaintiff’s attire would have done.   The plaintiff therefore carried her burden, at the motion-to-dismiss stage, to show that the district's policy was enforced in a selective manner.  There is a First Amendment violation unless the district can satisfy strict scrutiny.  Similarly, the plaintiff stated a claim for violation of her free speech rights.  By wearing the feather at graduation, the plaintiff sought to convey a particular message of academic achievement and resilience.  Viewpoint-based restrictions on student speech are subject to strict scrutiny.  While the district's policy is on its face viewpoint neutral, it is still unconstitutional if not applied uniformly.  The complaint plausibly alleged that the district enforced its policy in a selective way.  The plaintiff therefore carried her burden to show that the district's selective enforcement constituted impermissible viewpoint or content discrimination.  This too shows a First Amendment violation unless the district can satisfy strict scrutiny.  The district had to show its restrictions on the plaintiff’s protected rights serve a compelling interest and are narrowly tailored to that end.  The district argued that it must comply with the Establishment Clause.  But as recent Supreme Court authority established, the clause does not compel the government to purge from the public 
sphere anything an objective observer could reasonably infer endorses or partakes of the religious.  The district therefore did not meet its burden at the pleading stage of showing that accommodating religious dress for an individual student would have any effect on other students’ rights.

A dissenting judge concurred in the majority's legal analysis, but opined that the facts alleged in the complaint, on information and belief, that the district had permitted the other students to wear secular decorations were insufficient to plausibly state a claim.

Pullman Abstention Applies to Regulatory Takings Suit in Federal Court Due to Eminent Domain Case in State Court

In Gearing v. City of Half Moon Bay, published December 8, 2022, the 9th Circuit Court of Appeals affirmed a district court decision granting the defendant city's motion to abstain under Railroad Commission of Texas v. Pullman Co. (1941)  312 U.S. 496 from hearing the plaintiffs' regulatory takings case while the city's eminent domain suit regarding the same property was pending in state court.  The plaintiffs own parcels of land in areas zoned for restricted land use.  The plaintiffs contended that under California's SB 330, intended to increase the stock of affordable housing, the city was required to approve their project.  The city contended that SB 330 did not require approval, because the plaintiffs had not met the city's development requirements.  Shortly after rejecting the plaintiffs' application, the city informed the plaintiffs that it intended to acquire their property through eminent domain.  The plaintiffs rejected the city's purchase offer.  The plaintiffs then filed their regulatory takings action in federal court.  A week later, the city filed an eminent domain action in state court.  The city then filed their motion to abstain.

The 9th Circuit agreed with the district court that Pullman abstention was appropriate.  The court rejected the arguments that the Supreme Court's decisions in Knick v. Township of Scott (2019) 139 S. Ct. 2162 (holding that landowners need not exhaust state judicial remedies before bringing a federal takings action) and Pakdel v. City and County of San Francisco (2021) 141 S. Ct. 2226 (holding that landowners need not exhaust administrative remedies before bringing a federal takings action) precluded abstention.  Those cases address when a takings claim is ripe, which goes to when a claim accrues for purposes of judicial review.  Abstention allows courts to stay cases that have already accrued.  It does not create a condition precedent to litigation.  It merely serves federalism by allowing a state court to decide state-law issues in the first instance.  There is not a danger of claim preclusion:  the state court can adjudicate the eminent domain action without reaching the regulatory takings issue.  The two suits compensate property owners for different injuries.  Eminent domain compensates for the forced sale of properties to the government by transferring the land to the government and paying the owner the property's fair market value as of the date the government made a deposit on the property.  A regulatory takings action compensates the owner for the economic impact of a regulation on distinct investment-backed expectations regarding property.  The landowners can defend the eminent domain action without addressing the constitutionality of the city's regulations, and recover the fair market value of the property as restricted by those regulations; then litigate their regulatory taking claim and recover ddamages for the economic impact of the regulation.  Further, the plaintiffs had made an England reservation in the state proceedings, reserving their right to litigate federal issues in their federal action.  The court of appeals also ruled that the Pullman abstention requirements were satisfied.  The complaint touched upon a sensitive area of social policy--land use planning.  The constitutional questions in the regulatory takings action could be narrowed by a ruling in the state case, because the state court will have to interpret the local regulation and SB 330 to ascertain the fair market value of the property.  Finally, the litigation involves an unclear question of state law: the interaction of SB 330 and the local regulation.