Katzberg v. Regents of University of California

*330 BROWN, J., Concurring and Dissenting.

I concur in the majority’s affirmance of the Court of Appeal’s judgment barring plaintiff from seeking damages for any violation of his state constitutional right to due process. In my view, however, it is not only unnecessary but entirely inappropriate to go beyond the short, clear answer to the question presented or to consider anything other than the constitutional history and drafters’ intent in determining whether a constitutional provision is enforceable by an action in tort. The majority cites no authority and offers no rationale for applying the “constitutional tort” analysis adopted by the United States Supreme Court in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388 [ 91 S.Ct. 1999 , 29 L.Ed.2d 619 ] to a provision of the. California Constitution.

“[I]t is well established that the California Constitution ‘is, and always has been, a document of independent force’ [citation], and that the rights embodied in and protected by the state Constitution are not invariably identical to the rights contained in the federal Constitution. [Citation.] California cases long have recognized the independence of the California Constitution [citation], and article I, section 24, of the California Constitution expressly confirms that the rights ‘guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution. ’ Past cases make clear that even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts’ interpretation of the corresponding provision contained in the federal Constitution. [Citations.]” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325-326 [ 66 Cal.Rptr.2d 210 , 940 P.2d 797 ]; see People v. Frazer (1999) 21 Cal.4th 737, 782-783 [ 88 Cal.Rptr.2d 312 , 982 P.2d 180 ] (dis. opn. of Brown, J.); Warden v. State Bar (1999) 21 Cal.4th 628, 660 [ 88 Cal.Rptr.2d 283 , 982 P.2d 154 ] (dis. opn. of Brown, J.).)

When a part of our state Constitution has been adopted by initiative, one of our core interpretive principles is that the courts must measure its scope according to the intentions of the voters. (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 518 [ 38 Cal.Rptr.2d 489 ], and cases cited therein; see, e.g., White v. Davis (1975) 13 Cal.3d 757, 775 [ 120 Cal.Rptr. 94 , 533 P.2d 222 ] [ballot statements indicated state constitutional right of privacy was intended to be self-executing and supported injunctive relief]; cf. Holtz v. Superior Court (1970) 3 Cal.3d 296, 302 [ 90 Cal.Rptr. 345 , 475 P.2d 441 ] [language of article I, section 14, allows monetary damages for inverse condemnation].) “This is because the Constitution ‘ “owes its whole force and authority to its ratification by the people ....’” [Citations.]” (Gates, at p. 518.)

The0majority correctly concludes there is no evidence the voters intended to create a right to monetary damages in adopting the due process clause set *331 forth in article I, section 7, subdivision (a) of our Constitution. Nevertheless, it declines to end its inquiry with that determination because it finds no basis “for concluding that a damages remedy was intended to be foreclosed.” (Maj. opn., ante, at p. 324.) The majority fails to explain this non sequitur, however, and to identify any principle of constitutional interpretation that translates the absence of an express or implied bar to monetary damages into an authorization for a court to determine whether to provide for such a remedy on its own initiative. By its very nature, a constitution orders the relationships of the government and its citizens and serves as a bulwark against encroachment on their rights. The fact that the judicial branch interprets the Constitution does not give license to augment its provisions as any shifting majority of judges sees fit. Until now, this court has jealously guarded its role in effectuating legislative intent, particularly with respect to the initiative process. (See, e.g., Legislature v. Eu (1991) 54 Cal.3d 492, 501 [ 286 Cal.Rptr. 283 , 816 P.2d 1309 ]; Raven v. Deukmejian (1990) 52 Cal.3d 336, 341 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ]; see also In re Lance W. (1985) 37 Cal.3d 873, 889-890 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ].) In this case, however, the majority abandons that vigilance.

Moreover, the majority applies an analytical framework based not on our own jurisprudence but a derivation of United States Supreme Court decisions. “The California Constitution is the supreme law of our state—a seminal document of independent force that establishes governmental powers and safeguards individual rights and liberties. [Citations.] As the Supreme Court of California, we are the final arbiters of the meaning of state constitutional provisions. [Citation.] Our authority and responsibility in this regard is part of the basic structure of California government; it cannot be delegated to the United States Supreme Court or any other person or body. [Citation.] When we construe provisions of the California Constitution, we necessarily do so in light of their unique language, purposes, and histories, in accordance with general principles of constitutional interpretation established in our case law. Nor do we act differently when the state constitutional provision in issue contains the same language as a federal constitutional provision. In such a case, we are not bound by a decision of the United States Supreme Court or any other court. We must consider and decide the matter independently.” (Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863, 902-903 [ 281 Cal.Rptr. 34 , 809 P.2d 809 ] (conc. opn. of Lucas, C. J.).)

The majority’s lapse of analytical independence—and apparent “assumption that any Supreme Court doctrine is generic constitutional law” (Linde, *332 Are State Constitutions Common Law? (1992) 34 Ariz. L.Rev. 215, 227)— betrays our obligation as final arbiter of state constitutional law in two interrelated ways. First, the majority’s approach compounds and perpetuates the misperception that state constitutions are part of common law and that meaningful analysis can be “borrowed wholesale from federal constitutional discourse, as though the language of federal constitutional law were some sort of lingua franca of constitutional argument generally.” (Gardner, The Failed Discourse of State Constitutionalism (1992) 90 Mich. L.Rev. 761, 766.) Unlike the common law, however, constitutional interpretation is bound by text as well as by principles of construction and is decidedly not subject—whenever a majority of the court agrees—to judicial extension and innovation in the interest of public policy or national consensus or similar justification. (See Linde, at pp. 225-229.) Although in this context “[t]he pull toward a common law of judicial review, toward a vortex of clichés [lifted from United States Supreme Court decisions], is strong” (id. at p. 229), this court must resist if it is to remain faithful to its role as the final arbiter of the meaning of our state Constitution and to respect the demarcations between the respective branches of government—a concern equally of constitutional dimension. (See, e.g., Schweiker v. Chilicky (1988) 487 U.S. 412, 414 [ 108 S.Ct. 2460, 2463 , 101 L.Ed.2d 370 ].)

Second, the majority’s approach creates a lacuna in our constitutional jurisprudence, adopting without meaningful consideration the United States Supreme Court’s interpolation of an unrelated federal constitutional provision in lieu of rigorous substantive analysis of the unique language, purpose and history of our own due process guarantee. Defaulting to the high court fundamentally disserves the independent force and effect of our Constitution. Rather than enrich the texture of our law, this reliance on federal precedent shortchanges future generations.

Baxter, J., concurred.